text:
    No. 9322.
    Orleans Appeal.
    LOUIS CAPO v. M. BLANCHE BLANCHARD, ET AL., Appellants.
    (October 6, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Surveyors & Surveys, Par. 18.
    Prescription does not run against the action of boundary.
    (Civil Code, Art. 825 — Editor’s Note.)
    2. Louisiana Digest, Prescription, Par. 22, 27.
    It requires thirty years uninterrupted possession to acquire the ownership of lands beyond one’s title.
    (Civil Code, Arts. 3475, 852 and 3493 — Editor’s Note.)
    3. Louisiana Digest, Prescription, Par. 20.
    In order to acquire by the prescription of ten years beyond one’s title it is necessary to show not only possession of ten years but a possession based on boundaries fixed according to titles by a surveyor in accordance with the formalities required by the Code on the subject of fixing boundaries. • Discontinuous servitudes can be acquired neither by prescription nor by destination de pére de famille.
    (Civil, Code, Arts. 823 to 855 and 727, 766— Editor’s Note.)
    4. Louisiana Digest, Surveyors & Surveys, Par. 13.
    The error of an owner in agreeing to a boundary neither makes nor divests a title.
    5. Louisianh Digest, Servitude, Par. 11.
    The owner of two lots of ground who builds upon one lot a house that rests partly upon the other lot thereby creates a servitude upon the last lot in favor of the former by a destination de pére de famille.
    6. Louisiana Digest, Surveyors & Surveys, Par. 27.
    When a defendant has resisted the fixing of boundaries he owes the whole of the surveyor’s cost.
    7. Louisiana Digest, Surveyors & Surveys, Par. 27.
    But those costs are fixed by law and cannot be allowed in the shape of a round sum.
    8.. Louisiana Digest, Surveyors & Surveys, Par. 27.
    No sum can be allowed for services connected with the making of the survey or for extra services not provided by the tariff fixed by law.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is an action of boundary. Judgment for plaintiff. Defendants appealed.
    Judgment amended and affirmed.
    Richard B. Otero and C. S. Plebert, attorneys for plaintiff and appellee.
    Suthon & Zengel, attorneys for defendants and appellant.
   CLAIBORNE, J.

This is an action of boundary.

The plaintiff alleges that by act of A. J. Cuneo, Notary, dated December 1, 1920, he purchased from A. Centanni the following property:

A lot with all the buildings, etc., thereon situated at the corner of Iberville and Telemachus, in the square bounded by Bienville and Cortez, measuring 24' 67 1'", or more, front on Iberville by 91', or more, deep and front on Telemachus Street; being part of Lot 1 on a sketch dated November 28, 1892 annexed to an act of sale by Albert Paul to L. Bage and measuring 34' 1" V" on Iberville by 120' deep and front on Telemachus; being the same property which had been acquired by Centanni from the succession of Dr. Joseph A. Blanchard on February 20, 1913; and which Dr. Blanchard had purchased from Albert Paul on September 21, 1894.

That the defendant herein, the Misses Blanchard, acquired the adjoining lot towards the lake as heirs of their father, Dr. J. E. Blanchard, who had purchased from Albert Paul by act dated July 17, 1894; that their lot is described as follows:

A portion of ground with the buildings thereon measuring 36' more or less front on Iberville Street, beginning at a point 25' 1" 1'" from the corner of Telemachus by a depth of 91' more or less, being composed of Lots 1 and 2 on a sketch dated November, 1892, above mentioned; Lot No. 1 measuring 34' 1" 1'" front on Iberville Street by 120' deep and front on Telemachus Street; and Lot No. 2 measuring 27' front on Iberville Street by 120' deep; and the portion of ground is composed of 9' front on Iberville Street of Lot No. 1' and 27' front on Iberville Street of Lot No. 2, as appears by a sketch annexed to an act of J. D. Taylor dated July 17, 1894;

That no fence was ever erected on the boundary line separating the property of petitioner from that of the Misses Blanchard; that petitioner’s property extends twenty inches towards the lake beyond the frame of the building erected upon the lot, but that the defendants claim these twenty inches as their property; and. in the rear of the property from the rear end of his building to the back line, the defendants have erected a shed extending over these twenty inches of petitioner, thus depriving petitioner of a strip of ground measuring twenty inches front on Iberville by 91' deep; that it is necessary that the boundary line be established in order to build a fence, and that the shed ■ be removed, from petitioner’s property; that petitioner recover rent for the .occupancy of his property at the rate of $2.50 per month with interest and all costs, including surveyor’s fees.

The defendants filed the following exceptions :

That the plaintiff and the defendants derived their title from a common author, Albert Paul; that upon plaintiff’s land he erected a store; that upon defendant’s land he erected a building as a residence and the shed in the rear; that he established the side wall of the store nearest Cortez Street as the boundary line between the two properties with a servitude of drip for the overhanging of the roof of the store building, and he incorporated the vacant space of ground between the dwelling and the store as part of the residence; tha these conditions were fixed by Albert Paul prior to 1894 and have existed ever since and constitute a “destination de pére de famille”; that the plaintiff is estopped from contesting the conditions and servitudes established by Albert Paul; defendants further pleaded the prescription of ten and thirty years in favor of the servitudes.

By consent, the exceptions were referred to the merits.

For answer the defendants reiterated the allegations of their exception.

.There was judgment for the plaintiff as prayed for, but rejecting the prayer for rents, and dividing the surveyor’s fee between the plaintiff and defendants one-half each.

The defendants have appealed. The plaintiff has answered the appeal and prayed for rents and for the entire surveyor’s cost.

•The locus in quo, as established by the evidence is as follows:

The building on plaintiff’s lot forms the corner of Iberville and Telemachus Streets; the wall of the building towards the lake is of brick and forms the only boundary or division of the two lots on that side for about two-thirds of its depth; there is no fence on the property line of the two lots. At the end of the wall, and in line with it, is a fence extending to the rear of. the two lots about 12 or 15 feet. In the rear of defendants’ lots 'is a shed extending over the twenty inches claimed by plaintiff; over the shed is a room. The side of this shed towards Telemachus Street is in line with the lake side wall of the corner building and with the fence, and covers the twenty inches claimed by plaintiff. This corner building and the shed in the rear were both built by Albert Paul, the former owner and comomn author of both lots owned by the plaintiff and by the defendants prior to 1894.

The trial court appointed a surveyor, who made a survey and sketch of the two lots with the improvements thereon on April 11, 1923. He testified that he surveyed the two lots according to the titles of the plaintiff and of the defendants and their author; that his survey agreed absolutely with a prior survey by Brysson Valias, Civil Engineer, made September 4, 1922; that according to those titles he gave the defendant’s lot 36 feet 7 inches, or seven inches more than their title calls for; that he gave plaintiff’s lot 24 feet 6 inches and 1 line, exactly what his title calls for; that he located the line of plaintiff’s lot 1 foot 2 indies from .the wall of his building towards the lake; that these 14 inches strike the eaves of the roof of the building; that a plumb bob dropped from the edge of the eaves falls upon the 14-inch line. There is an iron picket fence in front of the Blanchard property. It terminates with an iron post 14 inches before it reaches the plaintiff’s, Capo’s, building; it terminates at the property line as fixed by the surveyors; the end of the iron fence, the edge of the eaves, and the wooden stake, are exactly 24 feet 6 inches and 1 line from the correct corner of Telemachus; between Capo’s building and the defendants’ property there is no fence; the brick wall forms the division; there áre two windows in this wall, with blinds originally opening upon the outside; Albert Paul never lived in either property; he rented both; the 14-inch space was used by the defendants as a flower bed; the improvements upon Capo’s lot enroached upon the correct line of Telemachus Street 8 inches and 4 lines.

Under this state of facts it is evident that the defendants have no title of any kind, as owners, to those 14 inches. In deed, they admit it in their pleadings and in argument. Their only contention is that they have acquired a right of servitude over those 14 inches by prescription, exactly what precise servitude is not stated. The only question then is, have they acquired such a right by prescription?

The defendants have not occupied the premises during thirty years, therefore the prescription of thirty years cannot avail them. C. C. 852 (848).

What is the servitude claimed by the defendants?

It is that the common author, Albert Paul, dedicated the 14 inches of ground to the used' of the dwelling, and that such dedication amounts to a “destination de pére de famille”, which attaches to, and forms part of the two properties actively and passively.

There is no doubt that the defendants and their author have been in the possession and enjoyment of said 14 inches for more than ten years, but without title thereto.

Can they acquire a servitude of use thereto by ten years?

C. C. Art. 727: “Servitudes are either continuous or discontinnous. Continnous servitudes are those whose use is or may be continual without the act of man. Such are aqueducts, drain, view and the like. Discontinnous servitudes are such as need the act of man to be exercised. Such are the rights of passage, of drawing water, pasture, and the like.”
C. C. Art. 728: “Again, servitudes are either visible and apparent or non-apparent. Apparent servitudes are such as are to be perceivable by exterior works; such -as a door, a window, an aqueduct. Non-apparent servitudes are such as have no exterior sign of their existence, such, for instance, as the prohibition of buildings on an estate, or of building above a particular height.”
C. C. Art. 765: “Continnous and apparent servitudes may be acquired by title or by a possession of ten years.”
C. C. Art. 766: “Continnous non-apparent servitudes, and discontinnous servitudes, whether apparent or not, can be established only by title. Immemorial possession itsejf is not sufficient to acquire them.”

So far as the ground adjoining the brick wall is concerned, there were no “exterior works”, indicating the servitude. C. C. 728. No one, upon looking upon the 14 inches would have had his attention called to any evidence of servitude by any “exterior sign of its existence”. C. C. 728. If it existed at all, it amounted to a mental “prohibition to build”, or to interfere with the enjoyment of it by the residence. Unless the flower bed upon the 14-inch strip amounted to such a sign. If it did, then it was a servitude of using that strip as a flower bed and of cultivating it as such. That was a “discontinuous” servitude requiring “the act of man to be exercised’ and could not be acquired by prescription. Article 766. Without the flower bed it was a non-apparent servitude; with the flower bed it was a discontinuous servitude, and neither could be acquired by prescription. C. C. 766.

Can the servitude over the same 14 inches be acquired by “destination de pére de famille”? The-negative answer is found in Art. C. C. 767 (763) in these words:

“The destination made by the owner is equivalent to title with respect to continnous apparent servitudes.”

We have already stated that, the servitude claimed by the defendants is either discontinnous or non-apparent. Under the text of the Code it cannot be the subject of a “destination de pére de famille”.

As relates to the 14 inches along the fence in the rear of the brick wall, we do not consider that a fence is indicative of a servitude. It is a boundary line and an evidence of ownership, but not of a servitude. Everyone on seeing a fence would take it to signify the extent of ownership; no one would imagine that a servitude lurked behind it.

But in the case of Woodcock vs. Baldwin, 51 La. Ann. 989, 26 South. 46, th court said:

“In relation to such a servitude, ‘destination de pére de famille’, permanence of destination and the ‘caractérs de perpétuité’ are the essential prerequisites of their establishment.” Rideau vs. Barnet, 1 La. Ann 408.

In Williams vs. Bernstein, 51 La. Ann 116, 25 South. 411, the court said:

“Neighbors constantly run up fences within or beyond the boundary lines and join their 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.”

But assuming that the fence was a boundary it does not meet the requirements of Article C. C. 853 (849) to establish ownership by the prescription of ten years.

It has been decided that in order to support that prescription it is necessary to show not only a possession of ten years, but also that the possession has been held by boundaries fixed according to a common title, and, according to Article C. C. 835 (829), located by a sworn surveyor after pursuing the formalities required by the Articles of the Code on that subject. Gray vs. Couvillon, 12 La. Ann. 730; City of New Orleans vs. Shakespeare, 39 La. Ann. 1033, 3 So. 346; Gaude vs. Williams, 47 La. Ann. 1326; 17 So. 844; Williams vs. Bernstein, 51 La. Ann. 124; 25 So. 411. There is no prescription to an action of boundary. C. C. 825 (821); Francois Arceneaux vs. De Benoit, 21 La. Ann. 673 (678); Heirs of Mason vs. Layton, 38 La. Ann. 679; Williams vs. Bernstein, 51 La. Ann. 124, 25 So. 411; Alexander Latiolais vs. Louis V. Mouton, 23 La. Ann. 529.

The mistake of an owner in agreeing to a boundary neither makes nor divests a title. Adam Frederick vs. Etienne Brulard, 6 La. Ann. 382; Lacour vs. Watson, 12 La. Ann. 215; Gray vs. Couvillon, 12 La. Ann. 732; Riddel vs. Jackson, 14 La. Ann. 135; Gaude vs. Williams, 47 La. Ann. 1326, 17 So 844; Russel vs. Producers’ Oil Co., 138 La 193, 70 So. 92.

“It being manifest that error was committed by the defendant and one who preceded plaintiff as owner of the latter’s land in locating .the lot not adjacent to the railroad, the prescription therefore of ten years does not apply.” Gaude vs. Williams, 47 La. Ann. 1326, 17 So. 844.

Although we consider that the judgment of the District Court in favor of plaintiff was correct, we think he erred in locating the boundary line 20 inches from the Capo property. The surveyor’s plan and his testimony and all the surounding circumstances place the line at 14 inches.

It is otherwise, however, as to the shed in the rear.

The side of it towards Telemachus Street extends, partly, over the 14 inches claimed by plaintiff. The buildings consist of one room used as a sleeping room or a school room, or a store room. This is the apparent and continuous servitude recognized in Woodcock vs. Baldwin, 51 La. Ann. 989, 26 South. 46, and must be applied in this case so as to recognize the servitude in favor of the property owned by the defendants by which the shed now there shall remain on plaintiff’s lot as long as it shall stand thereon, but no longer, and shall terminate whenever said shed shall be removed or cease to stand, or be destroyed, as if said servitude had never been established.

The defendants rely upon Opdennoyer vs. Brown, 155 La. 617, 99 South. 482, No. 7 In that case the court maintained the prescription of thirty years in favor of boundaries shown to. have been established for more than thirty years. In the case before us we have en deavored to show that no boundaries of any kind had ever been fixed as to the portion of plaintiffs’ lot on the lake side of the main building; and that as to the portion divided by the fence the boundary had not been fixed according to law.

The plea of estoppel is without merit. It is not shown that the plaintiff ever did or said anything upon which the defendants acted or changed their position. Lacour vs. Watson, 12 La. Ann. 215. Rents: We do not believe the plaintiff is entitled to any rents. As long as- the defendants occupied the 14 inches, and up to the time of this suit, they were in good faith and owed no rents except from the time of the suit. C. C. 3453 (3416); Fortier vs. Roane, 104 La. 90-95, 28 So. 994.

The. value of those 14 inches fixed by plaintiff at $100, and the rental value at $3.00 per month, is fictitious. This is a case to apply the maxim: De minimis lex non curat. Costs: We believe, however, that the plaintiff is entitled to the whole of the surveyor’s costs. The defendants resisted plaintiff’s demand to have their boundaries fixed according to their respective titles and compelled this suit. Hence they should be condemned to pay the whole costs of survey and not only one-half. T. Andrews vs. A. A. H. Knox, 10 La. Ann. 604; Lacour vs. Watson, 12 La. Ann. 214; E. Tircuit vs. E. Pelanne et al., 14 La. Ann. 215; Williams vs. Close, 14 A. 737; Gaude vs. Williams, 47 La. Ann. 1236 (1329), 17 So. 844.

The surveyor’s bill is as follows:

Surveying this matter__________ $25.00
Researches for same__________________________________ 17.00
Incidentals __________________________________________________ 3.20
$45.20

Act 90 of 1880, p. 116, amending Section 3750 of the Revised Statutes, provides:

“They, _ surveyors, shall be entitled to demand and receive for their respective services the following fees, to-wit:
“For measuring every lot in a town or other place divided into lots, for every running foot, one cent.
“For every original plat of any such lot, including the record, two dollars and fifty cents.
“For every certified copy of such plat and of the certificate of survey one dollar and fifty cents.”

In the case of McCollam vs. Beattie, 9 Rob. 474, decided anterior to 1855, the plaintiff surveyor claimed $1,000. The court allowed him $76.24 in accordance with a surveyor’s tariff adopted by an Act of Congress.

The jurisprudence of this State has been constant that notaries. could not claim larger fees than those fixed by the legislature.

The case of Roboam, 12 La. 73, is a severe arraignment of public officers who demand greater fees than those allowed by law. The allowance of a round sum is illegal also. Succession of Harris, 29 La. Ann. 747; Succession of Morgan, 124 La. 755-758, 50 So. 703; Succession of Alexander, 130 La. 8-17, 57 So. 534.

In Walton vs. Creditors, 3 Rob. 438, the court reduced the amount claimed hy the notary for a meeting of creditors from $354.50 to the sum fixed by the tariff, $65.75.

See also Succession of Caballero, 25 A. 646; Succession of John M. Harris. Opposition of J. F. Pargoud, 29 La. Ann. 743 (747); City Item Co-Op. Printing Co. vs Phoenix Furniture Concern, 108 La. 262; 32 So. 469.

Tn State vs. R. R. 7 Rob. 198, the court refused to allow compensation “for memoranda made and attested by him for the purpose of preparing the inventory in proper form”, or for' other services connected with the making of the inventory, or for extra services.

See also Hawford vs. Adler, 12 La. Ann. 241; Succession of Alexander, 130 La. 17 57 So. 534.

The three items must therefore be disallowed as in case of non-suit.

It is therefore ordered that the judgment herein be amended so as to read as follows:

“It is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Louis Capo, and against the defendants, May Blanche Blanchard and Mary Edna Blanchard, fixing the boundary line between their respective lots of ground fronting on Iberville Street in the square No. 503 bounded by Iberville, Telemachus, Bienville and Cortez Streets, at a point fourteen inches towards Lake Pontchartrain from the side of the building of Louis Capo, subject to a right of servitude in favor of the adjoining lot owned by the Misses Blanchard upon that portion of said fourteen inches occupied by the shed in the rear of said Blanchard to continue as long as said shed shall stand thereon and no longer and to terminate whenever said shed shall be removed or cease to stand or be destroyed or demolished as if said servitude had never been established;
“It is further ordered that the plaintiff have the right to remove the fence in the rear on this fourteen-inch boundary line fixed by Adloc Orr, according to his survey and sketch filed herein;
“It is further ordered that the defendants pay all the costs of these proceedings, including the surveyor’s fees; but .that the question of the amount of those fees he remanded to be fixed by the District Court in accordance witli the views hereinabove expressed;
“It is further ordered ' that in all other respects the judgment of the District Court be affirmed.”


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 8964.
    Orleans Appeal.
    MAURICE HYMAN v. JOSEPH SUTTON, Appellant.
    (October 20, 1924, Opinion and Decree.)
    (November 17, 1924, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Judgment, Par. 247, 249.
    Judgments rendered in other States of the Union import a presumption of the correctness of all the proceedings leading up to them, including the citation and return.
    2. Louisiana Digest, Interest, Par. 12, 15.
    In the absence of proof of the legal interest in New York, only five per cent interest will be allowed by our Courts on a New York judgment presented for execution here.
    (Civil Code, Arts. 1938, 2924, and Code of Practice, Art. 554. — Editor’s Note.) '
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit for the recognition and enforcement of a judgment rendered in favor of plaintiff against the defendant by the City Court of the City of New York.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Spencer, Fenner, Gidiere & Phelps, attorneys for plaintiff and appellee.
    A. D. Danziger, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit for the recognition and enforcement of a judgment rendered in favor of plaintiff against the defendant by the City Court of the City of New York.

The plaintiff alleged that' on December 12, 1919, the City Court for the City of New York rendered a judgment in his favor and against the defendant for $1,718.58, a copy of which he annexed to his petition duly certified by the Clerk of said Court, sealed with his seal and clothed with the certificate of the Presiding Judge of said Court that the attestation thereof is in due form. He prays for judgment in accordance with said judgment.

The defendant denied that he had been cited personally or otherwise in the Court of New York and he prayed that this suit be dismissed.

There was judgment for plaintiff and defendant has appealed.

1. Article 752 of the Code of Practice reads as follows:

“Judgments rendered in the different Courts of the United States shall import full proof in the Courts of this State, if the copy of them which is offered be certified by the Clerk of the Court in which they are rendered, be sealed with his seal, if there be one, and clothed with the certificate of the judge, chief justice or magistrate who presides in the Court, as the case may be, declaring that the attestation is made in due form.” Warren vs. Hall’s Ex’r, 10 La. 381; Succession of D’Aunoy, 3 La. Ann. 36; Sargent vs. Davis, 3 La. Ann. 354; Turley vs. Dreyfus, 33 La. Ann. 887; Turley vs. Dreyfus, 35 La. Ann. 511; John I. Adams & Co., vs. Coons, 37 La. Ann. 305; Mutual Nat. Bank vs. Moore, 50 La. Ann. 1332, 20 So. 304; Douglas vs. Gyulai, 144 La. 213, 80 So. 258; U. S. Const. Art. 4, Sec. 1; 3 Wheaton 234; 127 U. S. 291; 192 U. S. 355; 207 U. S. 43; 210 U. S. 230.

The presumption therefore is that the citation was properly served according to the laws of New York. Such was the ruling in the case of Graydon vs. Justus, 24 La. Ann. 222, 18 Wall 365.

, The same presumption exists as to a domestic judgment. There is no difference between the two. 15 Ruling Case Law 887-888.

In the case of Widow de St. Romes vs. Carondelet Canal, 24 La. Ann. 331, plaintiff attempted to annul a judgment on the ground of want of citation. The opinion states:

“The plaintiff herself swears that no citation was served upon her; that at the time when it is alleged to have been served she Was confined to her room by sickness and was most of the time in bed. The testimony of the two sons is of a negative character. One of them said it was physically impossible for the Deputy Sheriff to serve the citation personally upon the plaintiff, but he gave no facts tending to show why it was physically impossible. It is shown that the officer who received the citation had been dead ten years or more. The return upon the citation is shown to be in his handwriting, and recites that service was made on the plaintiff in person. A sheriff’s book was produced in which an entry was shown of corresponding date with the return on the citation, and this entry recites that service was made in person on the plaintiff at her domicile. The evidence on the part of the plaintiff does not in our opinion overcome that exhibited by written instruments. The presumption is that the officer’s return correctly sets forth facts.”

In the case before us the citation was addressed to “Joseph Sutton”. It was served by Louis “Lichtman”, who made the following return:

“Louis Lichtman being duly sworn, says that he is over 21 years of age and that on the 26th day of November, 1919, at 35 West 31st St., Borough of Manhattan, City of New York, he served the summon with notice in this action hereto annexed upon Joseph Sutton, defendant in this action, by delivering a true copy of said summons with notice to such defendant personally, and leaving the same with him. He further says that he knew the person served as aforesaid to be the person mentioned and described in the said summons as the defendant in this action.”
(Signed) LOUIS M. LICHTMAN.
Sworn to before me this 29th day of November, 1919.
(Signed) M. C. BEAQH,
Notary Public, N. Y. Co.

On 'the trial of this case, under commission, Lewis M. Lichtman reiterated the return made by him on the citation.

Julius Bernstein, in the same manner, corroborates Lichtman.

Sadie Israel testified that she saw the defendant and Lichtman talking in the store, and as the defendant was passing Hyman’s room he stopped and shook a paper in his face, yelling that he had no right to sue him, and put the paper back in his pocket and walked out.

Defendant swears he was not cited.

The following witnesses on behalf of defendant swear that the defendant Was married on November 25th and that he spent all of the following day, November 26th (day of the service on defendant) in the home of Joe Laniado:

1st. Salka Zaga, her mark.
2nd. Joe Laniado.
3rd. Annie Laniado, her mark.
4th. Anzeruth Zerafe, defendant’s wife.
5th. Celina Levy.
6th. Joseph Sultan.
7th. Josué Anzaroot.

Edward W. Hart, Chief Clerk of the Marriage License Bureau of the City of New York, testifies that under the laws of New York a marriage license must be obtained for the performance of the ceremony and that from October 1 to December 31, 1919, no such license had been obtained from his office.

Defendant, though called upon, did not produce any marriage certificate.

The Deputy Sheriff who served, the defendant in this case testifies that when he called at defendant’s store and asked him if he was Joe Sutton, the defendant denied his identity and said that Joe Sutton was in New York.

Neither the defendant’s testimony nor that of his witnesses impresses us favorably. The case turns upon the proof of an event that is alleged to have taken place upon a particular date, the 26th of November. Defendant’s witnesses must rely upon their memory as to an event that is said, with some doubt as to its occurrence at all, to have taken place on a particular date three years before. As against their mere memory, fallible at best, is the written contemporaneous document attested by a credible witness serving as an officer designated by law.

We think with the District Judge that the testimony of the defendant and his witnesses is unreliable and not sufficient to overcome, the presumption in favor of the citation and of the judgment and the positive testimony of the three witnesses supporting them.

The defendant complains that the judgment appealed from carries six per cent interest. Plaintiff alleged that such was the law of New York. In the absence of a special denial of that fact, which defendant did not make, the allegation must be deemed to have been admitted. Sec. 3 of Act 157 of 1912, p. 226.


text:
    No. 9652.
    Orleans Appeal.
    MRS. ANTOINE DEMAND, Appellant, v. YOUNG FRIENDS OF CHARITY B. M. A. ASSN.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Associations, Par. 21.
    When plaintiff fails to show that any part of the laws of a benevolent association constitutes her a beneficiary, she cannot recover.
    2. Louisiana Digest, Associations, Par. 14, 21.
    When the law of the Association prohibits payment to a beneficiary, unless registered, a plaintiff who is not registered cannot recover.
    Appeal from First City Court, Hon. Yal. J. Stentz, Judge.

      This is a suit for a death benefit. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Scott E. Beer, attorney for plaintiff and appellant.
    Paul L. Fourchy, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a suit for a death benefit.

The plaintiff alleged that her husband, Antoine Demand, was an active member of the defendant association; that he died leaving no mother surviving him; that she is entitled to the sum of $196.50 collected from the members as “Family Mourning”.

The defense is a general denial, and the special pleas: 1st, that plaintiff was not registered in the books of the Association as -required by Section 4 of Article 29 of the By-Laws; and 2nd, that Antoine Demand has designated as his beneficiaries Ella and Norman Lasch, his grandchildren, who alone are entitled to the benefit claimed.

There was judgment for defendant and plaintiff has appealed.

The case turns upon the interpretation of Sections 4 and 5 of Article XXIX of the By-laws. They read as follows:

“Sec. 4. At the death of a brother, each member shall be taxed 50 cents for family mourning. After having made all necessary arrangements for the funeral, the Association shall give a part of the amount which is to be collected, to the family, if it is So requested; and the balance immediately after it has been collected, according to the number of members in the Association. In no case shall the Association remit said amount to the wife, mother, nor to any other person if said person was not previously registered in the books of the Association.”
“Sec. 5. A member wishing to change his registration of passive .members or to will to any one the amount which is to be paid as ‘family mourning’, he must make the fact known to the Association in writing and action will be taken thereon. In cases where there is no widow or mother the active member must specify to the Association the name of the beneficiary.”

We have not been informed as to any clause .of the Charter, Constitution, or Bylaws which makes the wife the beneficiary of the fund called the “family mourning”, nor has our industry assisted us in the matter.

But if it is assumed that the wife is, or ought to be, the beneficiary in the natural order of things, the Section 4 above quoted provides that “in no case shall the Association remit said amount to- the wife, mother, nor to any other person, if said person was not previously registered in the books of the Association”.

It is not contended, nor does it appear, that the wifq was registered. On the contrary, the testimony shows that the grandchildren of the deceased, Antoine Demand, were registered as his beneficiaries.

But it is contended that the registration of a beneficiary is. necessary only, in the language of Section 5, “in cases where there is no widow or mother”. This interpretation would be in conflict with Section 4 above quoted. Admitting, however, that it is correct, it still remains that there Is no clause anywhere making the wife beneficiary of that fund. With that view of the case, plaintiff has no cause of action, and the judgment appealed from is correct, and it is therefore, affirmed.


text:
    No. 9696.
    Orleans Appeal.
    SANITARY SCALE CO. v. L. M. BROUSSARD, Appellant.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Fraud, Par. 10.
    A defendant sued for the price of scales, who charges that he bought them on the fraudulent representations of plaintiff, must make his case reasonably certain or judgment will go against him.
    (Civil Code, Arts. 1847, 1848, 1849 — Editor’s Note.)
    Appeal from First City Court, Hon. Henry Renshaw, Judge.
    This is a suit for part of the price of a scale sold and delivered. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    McGee & Robbins, attorneys for plaintiff and appellee.
    John D. Nix, Jr., W. W. Wright, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a suit for part of the price of a scale sold and delivered to the defendant for $275, less a cash payment' of $25 and the return of an old scale $50.

The defense is as follows:

“Respondent avers that on February 18, 1924, the agent or representative of plaintiff’s representative was so notified and at- and fraudulent representations,' induced respondent to take a certain spring scale; that said scale was guaranteed to he in perfect condition and to give entire satisfaction. Respondent further avers that said scale does not properly measure or compute weights, and is altogether impractical for respondent’s business. That plaintiff’s representatives was so notified and attempted to regulate said scale, but without success, and was notified to take said scale back; that said scale is now held by respondent as bailee for account of plaintiffs, and subject to plaintiffs’ risk.”

There was judgment for plaintiff and defendant has appealed.

There is no evidence whatever of any false and fraudulent representations made by plaintiffs’ agents to the defendant.

' In fact, there is no evidence of any representations of any kind having been made by defendants. According to defendant’s testimony the only fault he found with the scale was that it weighed one or two ounces over and that it was not right.

Plaintiffs’ agent testifies: “I inspect every machine before the salesman takes it out of the office in its full capacity and then test it out, its pounds by weight.” The scale was in good condition.

The salesman for the plaintiff testifies that the scale was in perfect order.

A clerk for the defendant, in answer to a leading question, testifies that he does not think that the scale weighed right: At one time he says that the scale weighed less and at another time that it weighed more.

The defendant has been engaged in the “retail grocery” business for about twenty years; he knows how to read; he signed a contract for the purchase of this scale on a document • 7 inches high and 8 inches wide printed in small type with close lines; he says he “thought it was a receipt that he was leaving the scale with me for a couple ' of days”.

He also signed another document in small type and closely printed lines, about 7 inches square, entitled “Exchange contract order”, making a deduction of $50 for his old scale and a receipt for $25 paid on account.

We believe that these facts evidence a consummated sale and not a tentative sale on trial, and that defendant had other reasons for refusing to pay plaintiffs than that their scale “did not weigh right’’. Within a short time after defendant' purchased plaintiffs’ scale he bought another of another make.

It would have been in the power of the defendant to have proven by the testimony of some disinterested witness or by the parties from whom he purchased these last scales that plaintiffs’ scales were not correct or not in good order.

Judgment affirmed.


author: WESTERFIELD, J.

text:
    No. 9626.
    Orleans Appeal.
    JACOBS BROS. WALKOVER BOOT SHOP v. FRANCES BEL.
    (October 20, 1924, Opinion and Decree.)
    (November 3, 1924, Rehearing Refused.)'

      (Syllabtis by the Court.)

    1. Louisiana Digest, Appeal, Par. 426.
    The Appellate Court cannot consider documentary evidence which has not been offered in the trial court, whether the same be annexed to a petition as part thereof or otherwise.
    Appeal from the First City Court, Hon. Henry Renshaw, Judge.
    This is a suit for the recovery of commissions alleged due.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed and case remanded.
    Marx & Levy, attorneys for plaintiff and appellee.
    Charles J. Rivet, attorney for defendant and appellant.
   WESTERFIELD, J.

The defendant appeals from a judgment against him and in favor of plaintiff in the sum of $113.10.

The petition alleges that the defendant was employed by plaintiff as a salesman upon a commission basis only and was allowed to draw a certain sum weekly, which sum was to be accounted for by defendant monthly when a balance was struck between the commissions earned and the sums advanced. Defendant denies that he was employed on a commission basis, alleging that he was employed at a salary of $35.00 per week, and denies that he owes the plaintiff any sum whatever.

The record discloses the fact that the plaintiff relies upon a certain statement purporting to have been taken from its books showing the amount of commissions earned by and payments made to the defendant. This statement, though annexed to the petition as part thereof, was not offered in evidence. It cannot be considered by us.

Marchand vs. H. T. Coffee and Wallace & Co., 23 La. Ann. 442. See also Wilkin-Hale State Bank vs. Tucker, 148 La. 980, 88 So. 239; Billich vs. Mathe, 149 La. 484, 89 So. 628.

Under the circumstances we have concluded to remand the case.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and this case be remanded to the First City Court for further proceedings not inconsistent with the views herein expressed.


text:
    No. 9693.
    Orleans Appeal.
    THE BRECHT CO. v. MANALE & MARCIANTE ET AL., Appellants.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 58, 120. '
    The presumption is that a sale of goods is made for immediate delivery or within a reasonable time after the sale.
    Appeal from First City Court, Val J. Stentz, Judge.
    This is a suit for the price of goods sold and delivered. Judgment for plaintiff. Defendant appealed. '
    Judgment affirmed.
    Dart, Kernan & Dart, Louis C. Guidry, attorneys for plaintiff and appellee.
    Guión & Upton, W. W. Ogden, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a suit for the price of goods sold and delivered.

Plaintiff, a resident of St. Louis, alleges that on April, 1921, through their tz-aveling salesman, they sold to the defendants for $162 certain goods to be delivered at once F. O. B. at factory at St. Louis; that they delivered said merchandise at St. Louis to the Mobile and Ohio Railroad consigned to the defendants at New Orleans; that upon arrival of said goods in New Orleans the defendants refused to receive the same; that thereupon the railroad disposed of said goods to protect their freight charges.

The. defendants admit the purchase as alleged, but aver that said goods were not to be shipped until October, 1921.

There was judgment for plaintiff and the defendants have appealed.

On behalf of defendants Marciante alone testified. He says that he ordered the goods from Mr. Eyler, plaintiffs’ salesman, for October delivery.

He is contradicted by Mr. Eyler, who swears that the order was for delivery at once; that he took the order in writing in duplicate; that he mailed one of those orders to the plaintiffs and delivered the other to the defendants. He is corroborated in his testimony by the following facts:

1st. When the defendants were notified by the railroad of the arrival of the goods, they did not inform the plaintiff of any premature delivery; they took no action until August, when they called for the goods at the railroad and were there informed that the goods had been shipped back to St. Louis.

2nd. There are in the record six letters by plaintiffs to defendants beginning with June 20, 1921, calling upon them for payment. Defendants answered none of them.

3rd. A letter written by Marciante to the plaintiffs dated August 5th, four months after the sale, states that they bought the goods “to be delivered in September”.

4th. The presumption is that a sale of goods is made for immediate delivery or within a reasonable time after the sale. Cottam vs. Moise, No. 7912 Ct. App.

Judgment affirmed.


text:
    No. 9659.
    Orleans Appeal.
    LORRAINE DEANE v. MAURICE R. WOULFE, Appellant.
    (October 20, 1924, Opinion and Decree.)
    (November 17, 1924, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 512.
    This court will allow damages for a frivolous appeal.
    (Code of Practice, Art. 887, 890,- 907 — Editor’s Note.)
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    Judgment for plaintiff. ' Defendant appealed but failed to make an apearance.
    Judgment affirmed, with damages.
    L. W. Cockfield, attorney for plaintiff and appellee.
    Maurice R. Woulfe, attorney for defendant and appellant.
   CLAIBORNE, J.

Plaintiff claimed $150 loaned by her to the defendant. The defendant filed a general denial and swore to it.

On the trial of the case the defendant was absent and unrepresented.

There was judgment for the plaintiff and the defendant has appealed suspensively.

In this court the defendant made no appearance by argument or brief.

The demand of the plaintiff is proved by á cheek for $70 drawn by her to the order of defendant and by him endorsed, and by her testimony that she loaned him an additional amount of $80 in cash, and by the testimony of her attorney that the defendant acknowledged owing plaintiff the amount and promised to pay it. This is piling Pelion upon Ossa.

The plaintiff has asked for damages for a frivolous appeal and she is entitled to them. C. P. 887, 890, 907.

It is therefore ordered that the judgment appealed from be affirmed with ten per cent damages on the capital thereof, One Hundred and Fifty Dollars, and all costs of court.


text:
    No. 9673.
    Orleans Appeal.
    JAHNCKE SERVICE CO. v. LOPEZ & SCHAEFFER.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Partnership, Par. 57, 63, 65.
    Where A, a member of the partnership of A and B, has been in the habit of purchasing supplies from a dealer for the partnership, places an order with the dealer in the customary way for supplies delivered to and used by a partnership composed of A and C, without advising the dealer of that fact. Held, A will be liable for the full purchase price of the merchandise used by A and C.
    (Civil Code, Art. 2870 — Editor’s Note.)
    Appeal from the First City Court, Hon. Henry Renshaw, Judge.
    This is a suit to recover the value of building supplies alleged sold and delivered.
    Judgment for plaintiff and plaintiff appealed.
    Judgment amended and affirmed.
    Dart & Dart, L. C. Guidry, attorneys for plaintiff and appellant.
    Carbajal & Gaudin, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff, a dealer in building materials, sued the partnership of Lopez and Schaeffer, Joseph Lopez and Bernard Schaeffer in solido, for $150.00, the value of certain building supplies alleged to have been sold and delivered to the partnership of Lopez and Schaeffer. The defense is a general denial. There was judgment against Lopez alone for $75.00 and plaintiff alone has_ appealed. It is admitted that the partnership and Schaeffer’s heirs (Schaeffer having died before- the trial of the case and his heirs being made parties) were properly dismissed from liability, consequently the only question for us to consider is Whether the judgment shall be increased to the amount claimed by plaintiff.

The record shows that Lopez and Schaeffer were partners in the business of building contractors and that the partnership had an account with plaintiff to which they were in the habit of charging purchases of building materials used by them in their business, the orders for such supplies being placed with plaintiff by Lopez. The materials, the price of which is the subject of this suit, were ordered in the usual way by Lopez and charged by plaintiff in the customary manner to Lopez and Schaeffer. They were delivered by instruction of Lopez to the site of a certain building then under construction, referred to in the testimony as the “Russo job”. Schaeffer, it appears, had nothing to do with the “Russo job”, which was being erected by Lopez in partnership with one Bremmerman under the partnership name of Lopez and Bremmerman. Lopez denies ordering the merchandise, but he denies everything and later admits much that he denies. In fact, his own statement “I haven’t got my memory at present” is a charitable explanation of his testimony. Lopez & Bremmerman had no account with plaintiff and no notice was given plaintiff that its merchandise was to be used by or should be charged to Lopez and Bremmerman until some time after the delivery of the goods, when a more or-less vague reference to the matter was made to plaintiff’s salesman, who testifies that he understood reference was made to another job and not the “Russo job”.

Under the circumstances plaintiff was justified in believing it was dealing with its old customer Lopez and Schaeffer, to whom it had extended credit. Lopez therefore ordered the supplies for the partnership of Lopez and Schaeffer and used them in constructing a building with which that partnership had nothing to do or he ordered them, so far as plaintiff is concerned, upon his own responsibility. In either event he must pay the entire cost. We surmise that the judgment of the trial court is based upon the view that the debt is due by the ordinary partnership of Lopez and Bremmerman, for which Lopez is only liable as an ordinary partner. We cannot ass.ent to this view of the case.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff to $150.00, and in all other respects it is affirmed. Appellee to pay all costs.


text:
    No. 9658.
    Orleans Appeal.
    M. FEITEL HOUSE WRECKING CO. v. JOHN L. OSTER.
    (October 20, 1924, Opinion and Decree.)
    (November 17, 1924, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 202; Estoppel, Par. 26.
    One who sells a number of flag stones belonging to the City of New Orleans without title thereto cannot question the formality of the sale of the flag stones to the City’s vendee.
    Appeal from the First City Court, Hon. Leon L. Labatt, Judge.
    This. is a suit to recover the purchase price'- of ■ flagstones. There was a call in warranty.
    .Judgment for plaintiff and dismissing the call in .warranty. Defendant appealed.
    Judgment affirmed.
    Arthur B. Leopold, attorney for plaintiff and appellee.
    W. E. Westerman (for City of New Orleans in rule), attorney for appellee;
    Habans & Coleman (for plaintiff and in warrants), attorne” for appellant.
   WESTERFIELD, J.

The plaintiff in this case bought a quantity of flag stones from the City of New Orleans. A few of the stones were hauled away by plaintiff, whereupon he was prevented from removing the remainder by the defendant, who claimed ownership of the stones. Some time thereafter, following a consultation with the City authorities, plaintiff again attempted to remove the stones, when it was discovered that they were for the most part missing. Upon inquiry plaintiff says that defendant told him he, defendant, did not know what had become of the stones. Defendant claims he said he did not know where they were. The difference between plaintiff and defendant’s statements as to what defendant said being the" difference between deception and evasion. Subsequently, through the detective department •of the City it was learned that a number of the stones had been given in exchange by the defendant to a contractor by the name of Johnson for a quantity of dirt or filling, whereupon this suit was entered for $150.00 as the alleged value of the stones. The defendant alleging title from the City called it in warranty.

There was judgment below in plaintiff’s favor for $70.00 'and dismissing the call in warranty. Defendant has appealed. Plaintiff has answered the appeal seeking to have the amount increased to the sum prayed for.

The stones were bought from an official of the City of New Orleans known as Purchasing Agent and defendant says the sale was irregular in that it was not preceded by advertisement as required by law. tin-less defendant can show some color of title to the stones, he cannot attack plaintiff’s title, which is regular on its face under familiar principles of law. Defendant, who had recently acquired a franchise from the City to operate a public market on the premises where the stones were lying, claims to have been given authority by Mr. Wilber Black, one of the City Commissioners, to do as he pleased with the stones. This Mr. Black denies, stating that he had only given defendant permission to remove the stones if they were in his way, moreover defendant’s conduct in relation to the stones does not impress us with the sincerity of his claim of ownership even under such weak tenure as is claimed. We conclude on this point that defendant had no claim of ownership of the stones which would entitle him to dispute the regularity of the sale by the City to plaintiff. He disposed of the stones without any legal right to do so and should compensate plaintiff, who, as far as he was concerned at least, had an absolute title to the flag stones.

The lower court fixed upon the sum of seventy dollars because this amount was testified to by the man Johnson as the value of the dirt given by him in exchange for the stones lie received. • Plaintiff says the stones were worth $150.00, but he was referring to. all of the stones remaining after he had taken away a small quantity before being stopped by defendant. The evidence convinces us that there are still some stones remaining and some broken • for which defendant cannot be held responsible, consequently we are not prepared to say that the lower court erred in its judgment, which is accordingly affirmed.


text:
    No. 9701.
    Orleans Appeal.
    R. GIEFERS, RECEIVER OF LOUISIANA LOAN & INVESTMENT CO. v. I. MODICA.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Usury, Par. 5 and 6.
    The holder of a promissory note may collect the face of the note notwithstand- , ing such note may include a' greater discount than eight per cent, per annum, provided such note does not have a greater rate of interest than eight per cent, after maturity.
    (Civil Code, Art. 2924 — Editor’s Note.)
    Appeal from the First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit on a promissory note. Judgment for plaintiff; defendant appealed.
    Judgment affirmed.
    Marcus & Corkern, attorneys for plaintiff and appellee.
    U. Marinoni, Jr., attorney .for defendant and appellant.
   WESTERFIELD, J.

This is a suit on a promissory note in the principal sum of $200.00. There was judgment below in plaintiff’s favor as prayed for and defendant has appealed.

The defense is two-fold.

1st. Usury in that $180.00 was given defendant in consideration of a note calling for $200.00. This defense cannot prevail under well settled jurisprudence. See Heymann vs. Reynolds, XII Court of Appeal, and authorities there discussed. See also Hailes vs. Hynson, XII Court of Appeal 327.

2nd. Want of consideration. The defendant claims that the $180.00 admitted to have been received was part of the consideration of a sale of stock and that, though he signed the note, he afterwards changed his mind and sold stock to the plaintiff under an agreement whereby he received $50.00 in cash and $180.00 in a cheek.

The note when offered in evidence showed that the identical stock claimed to have been sold was pledged as security for the payment of the note by a written agreement on the back 'thereof. Moreover, the note was in the possession of plaintiff and not defendant, as it should have been if defendant’s contention was correct.

We find nothing in the record which would justify us in disturbing the judg.ment of the trial court, and it is therefore affirmed.


text:
    No. 9731.
    Orleans Appeal.
    MRS. AGNES GARNER v. JOSEPH BURNSTEIN
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Damages, Par. 42.
    When the debtor has been guilty of no fraud he can be held liable only for such damages as .may reasonably be contemplated as resulting from his default. Thus a milliner, who fails to deliver a hat for which he has been paid to a purchaser and thereby causes her to appear at a dinner party with an inappropriate costume, cannot be held liable in damages for the mental anguish of the purchaser without proof that the milliner was informed of the importance of the hat as a part of a special costume to be worn to the dinner or of some other fact sufficient to advise him of one consequence likely to follow his default. ■
    (Civil Code, Art. 1934- — Editor’s Note.)
    Appeal from the First City Court, Hon. Henry Renshaw, Judge.
    This is a suit for damages for a breach of contract.
    Judgment for plaintiff. Defendant appealed.
    Judgment amended and affirmed.
    Prentice E. Edrington, Jr., attorney *for plaintiff and appellee.
    Bernard Titche, Jr., attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff purchased a hat from the defendant, who conducts a millinery establishment in this city, for the sum of $20.00. The hat was to be paid-for on delivery or, as it is termed commercially, C. O. D. The hat was delivered as agreed upon by the negro porter employed by defendant and according to the positive testimony of plaintiff and a lady friend of hers, whom she was visiting, was paid for by handing the porter two ten-dollar bills. The porter returned to defendant’s place of business and upon being asked for the money stated that no money had been paid him, and that he was induced to leave the hat by plaintiff stating that she had called at the hat shop of defendant earlier in the day and paid for the hat.- Whereupon the porter was told to return to plaintiff’s residence and get the hat or the money. The porter returned and finding plaintiff absent persuaded the servant to give him the hat and returned same to his employer. Upon plaintiff returning home and discovering her hat was gone she immediately repaired to the hat shop and demanded the hat, which the defendant refused to surrender unless she paid him the price. This plaintiff refused to do upon the ground that she had already paid for it. Thereupon plaintiff entered suit against defendant for $270.00; twenty dollars of which sum she claims to have paid defendant and $250.00 as consequential and punitive damages.

The first question for our consideration is whether the negro porter of defendant was paid for the hat and we have no difficulty in concluding that he was. Plaintiff is corroborated in this regard by another lady and both swear positively and circumstantially that the hat was paid for with two* ten-dollar bills given the porter of defendant. Payment to defendant’s agent was payment to him and whether he got the money or not plaintiff should have had her hat. His refusal to give her the hat renders him liable .to any damages which might be reasonably contemplated as resulting from his refusal to do so.

The rule of law is as stated in Article Í934 of the Civil Code:

“When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.”

By bad faith in this and the next rule is not meant the mere breach of faith in not complying with the contract, but a designed breach of it for some motive of interest or ill will.

The damages claimed here are, so far as we can consider them (punitive damages not being allowable at all) said to be due to mental anguish caused by disappointment due to the fact that the hat was bought to be worn with a certain dress to a dinner party on the very evening it was to be delivered. Plaintiff went to the party, though she alleges in her petition that she was unable to do so because of the lack of a proper hat, but says she was unable to wear the dress for which the hat was bought, causing her deep humiliation, disappointment and distress. We are not inclined to treat her alleged state of mind on this occasion jocosely. It is said “The apparel oft proclaims the man”. It more often proclaims the woman. Nature seems to have intended that the male should be more pulchritudenous. Witness the majestic beauty of the male lion as compared with the plainness of its mate and the beauteous plumage of the mallard drake as compared with the drab appearance' of the duck. But man, at least modern man, hasy decreed otherwise and countless industries and hosts of individuals are devoted to the production of clothing, jewelry, feathers, powders and, we - regret to say, paints designed exclusively for the ornamentation of the female form in an effort to “paint the lily”. No Rubens.' or Van Dyke ever studied the colors of their masterpieces with greater care than ,the modern woman studies the color scheme of her costume, for the laws of modern convention, though subject to frequent change, are inexorable. Therefore, when the plaintiff in this case tells us that the yellow hat bought of defendant and that yellow hat alone was suitable for her new dress which she had bought for the dinner party and that not having the hat she was compelled to wear an inappropriate costume, to her great embarrassment, mortification and, yes mental anguish, we believe her. The only question is, could the defendant reasonably contemplate. the result of his refusal to surrender the hat? He might be charged with knowledge of the intricate rules of feminine attire; indeed, his business is largely based upon the rigidity of these rules, and he must be held to be familiar with them, but he could not know the condition of the plaintiff’s wardrobe, and since the record does not disclose that he was advised of the dinner dancé and the special purpose for which the hat was intended, he cannot be charged with such knowledge, for it might well be, so far as defendant knew, anything to the contrary that plaintiff possessed a number of hats suitable for the occasion. In the case of Lewis vs. Holmes, 109 La. 1030, 34 So. 66, the defendant was held liable' tor damages caused by the disappointment of a bride in not having her trousseau properly made in time for the wedding and for social functions incident thereto. Holmes made tlie dresses, but they were four inches too short and the bride could not wear them without embarrassment and mortification, thus preventing her from being properly attired at social functions given in he honor. But in the instant case we are not dealing with bridal robes, which in themselves impart a warning of their importance, but with a hat in itself suggestive of none of the consequences which have resulted here.

We conclude, therefore, that the judgment appealed from must be amended by reducing the amount awarded plaintiff to twenty dollars, and it is so ordered. Defendant to pay all costs.


text:
    No. 9737.
    Orleans Appeal.
    DUDLEY G. HANEMANN v. MISS P. EBERLE, Appellant.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Builders and Buildings; Par. 21; Damages, Par. 75.
    The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced by paying the undertaker, in this case a plumber, for the expense and labor already incurred, and such damages as the nature of the case may” require.
    2. Louisiana Digest — Appeal—Par. 729.
    V/hen the evidence in the transcript does not show those requirements, namely, the amount which plaintiff may be entitled to under Art. 2765 of the Civil Code, the case will be remanded for trial on those issues.
    Appeal from First City Court, Hon. Henry Renshaw, Judge.
    This is a suit for damages for violation of a plumbing contract. Judgment for plaintiff. Defendant appealed.
    Judgment reversed and case remanded.
    Woodville & Woodville, attorneys for plaintiff and appellee.
    George P. Eberle, M. C. Scharff, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a* suit for damages for violation of a plumbing contract.

The plaintiff avers that he contracted to do certain plumbing work to defendant’s property for the price of $150; that he had almost completed the contract when he was ordered off the property by the defendant. He prays for judgment for $150.

The defense is that plaintiff was to use all new material and that “he brought on the job considerable used piping material and installed the same despite the protest of the defendant”; that when plaintiff refused to remove the old piping and to replace it by new, she discharged him; that she was attempting to procure some one to do the work as provided in the contract.

There was judgment for plaintiff and defendant has appealed.

Whether the plaintiff was doing the work according to contract or not is immaterial as far as defendant’s right to dismiss him was concerned. The case is governed by Article C. C. 2765 (2736), which reads as follows:

“The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense' and labor already incurred and such' damages as the nature of the case may require.” Monarch vs. Board of Com’rs, 49 La. Ann. 995, 4 Ct. App. 123.

The damages are the profits he would have realized had he been permitted to carry out his contract. Hart vs. Tremont Lumber Co., 131 La. 847, 60 So. 368; Dugue vs. Levy, 114 La. 21, 37 So. 995; Cothern vs. Julia Lumber Co., 140 La. 733, 73 So. 845; Eaton vs. The Second Municipality of New Orleans, 3 La. Ann. 45; McCord vs. West Feliciana R. Co., 3 La. Ann. 288; Forrest & Crocker vs. Caldwell & Hickey, 5 La. Ann. 220-221; Depuilly vs. Wardens of Church of St. Louis, 7 La. Ann. 443; Moore vs. Howard, 18 La. Ann. 635. When the owner dismisses the undertaker the contract ceases to be the standard of value of the work done. Villalobos vs. Mooney, 2 La. 332; Foster vs. Kokernot et al. 5 La. 260; Joublanc vs. Daunoy, 6 La 658; Dufour vs. Janin, 8 La. 149.

There is nothing in the record to enable us to determine the amount to which plaintiff may be entitled under the Article 2765, and the case must be remanded. 4 Ct. App. 123, Kolwe vs. Waddell.

It is therefore ordered that the judgment herein be reversed and set aside, and that this cause be remanded for trial to allow plaintiff to show the expense and labor already incurred by him on account of the job at the time of his discharge and the profits he would have realized had he been permitted to complete his contract. The costs of appeal to be paid by plaintiff and those of the lower court to await the final determination of this case.


text:
    No. 9738.
    Orleans Appeal.
    JAHNCKE SERVICE INC. v. E. R. HEWSON.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 625, 634 635.
    Issues of fact alone are involved and the finding of the lower court, except where manifestly erroneous, is affirmed.
    Appeal from the First City Court, Hon. Henry Renshaw, Judge.
    Judgment for defendant on the main demand and judgment for defendant on re-conventional demand. Plaintiff appealed.
    Judgment amended and affirmed.
    Louis C. Guidry, Dart & Dart, attorneys for plaintiff and appellant.
    Maurice H. Rooney, Eugene Stanley, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues the defendant for $208.70, the price of certain composition roofing shingles sold defendant. Defendant denies liability and reconvenes, claiming $35.00, the cost of putting the shingles on his roof.

There was judgment below dismissing plaintiff’s demand and awarding defendant Thirty-five Dollars as prayed for in his re-conventional demand. Plaintiff has appealed.

The defendant admits the purchase and delivery of the shingles, but claims they were not as represented and warranted by plaintiff in that the color of the shingles which was specially guaranteed to be uniform (green) and durable was quite the contrary, exhibiting a most unsightly appearance when placed on his roof. Spots of different colors are alleged to have appeared soon after the placing of the shingles on the roof, giving it a motley appearance, marring the architectural beauty of defendant’s residence.

The only question before us is one of fact. In other words, did plaintiff guarantee the color of the shingles and. did the shingles turn color?

Plaintiff sold the roofing through a salesman by the name of Green, who has testified in defendant’s behalf. Green says that he, on behalf of plaintiff, gave an unqualified guarantee as to the color of the shingles. He also testifies that he saw the roof and that the shingles were badly faded, and that he reported that fact to his superior in the service of plaintiff, a Mr. Hamilton. It is true that Green had left plaintiff’s employ at the time of his testimony, but this fact cannot impeach his veracity; moreover, Mr. Hamilton .does not deny that Green reported to him the condition of the roof being bad, as he testifies.

Three witnesses are produced by defendant, who swear to the discolored condition of the roof. One of plaintiff’s witnesses in a' measure corroborates defendant's witnesses in this regard. Plaintiff contends that such spots as appear on the roof are footprints caused by persons walking on the roof in hot weather. On the whole, we are of opinion that the evidence preponderates in 'defendant’s favor, establishing the fact that the shingles were not satisfactory, causing the roof to be unsightly. Plaintiff cannot recover the value of the shingles and defendant should have the cost of placing them on his roof, as was held by the trial court, but defendant cannot retain the shingles and not pay for them, consequently the judgment appealed from is amended so as to permit plaintiff to remove the shingles from defendant’s roof at its expense anytime within sixty days of the finality of this decree, and in all other respects it is affirmed.


text:
    No. 9749.
    Orleans Appeal.
    LEON IRWIN & CO., INC. v. J. E. WARNER & CO., INC.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 625. 634 635.
    Issues of fact alone are involved and the judgment of the lower court is affirmed in the absence of a showing of manifest error,
    Appeal from the First City Court, Hon. Val. J. Stentz, Judge.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Lemle, Moreno, Lemle, attorneys for plaintiff and appellee.
    Meyer S. Dreifus, H. S. Levy, attorneys for defendant and appellant.
   WESTERFIELD, J.

This is a suit on open account for the sum of $135.15. The particular debit item represented by the amount claimed is admitted to be due and owing, but defendant somewhat inartistically pleads compensation because of the payment in error of another item of this amount. From a judgment in plaintiff’s favor as prayed for defendant appeals.

The plaintiff, Leon Irwin & Co., Inc., is the local representative of the New Amsterdam Casualty Company, a foreign corporation transacting business in this State as a Surety Company with plaintiffs as general agent. The defendant is a local corporation conducting a sort of insurance brokerage business. It is customary for the general agents to allow a commission of 15% to the broker or producer of the business brought to them by the broker. The defendant brought to plaintiff’s office a building contractor by the name of Bourgeois, who obtained from the Amsterdam Casualty Company a surety bond through plaintiff’s agency, the usual commission being allowed defendant. Subsequently Bourgeois obtained four other bonds of a similar character, and it is concerning the preminum of $135.15 for the last bond which was not paid, that this controversy has arisen. It is the custom for the broker, in this case the defendant, to add its commission to the premium due the bonding company and bill the assured and collect the amount, paying the general agent at stated intervals the aggregate of premiums due in the interval. Pursuant to this custom plaintiff, on July 26, 1922, presented a statement calling for several hundred dollars and including the disputed Bourgeois premium of $135.15. The defendant deducted the Bourgeois premium and gave its check to plaintiff’s collector for the balance, stating that it desired to investigate the Bourgeois item. Several days later plaintiff again sent its collector to collect the Bourgeois item and on this occasion it was paid by defendant. Defendant says it was misled in making this payment because plaintiff’s collector stated the charge covered something other than the Bourgeois collection known as “Compensation Payroll Audit.” The next time plaintiff’ collector came around presenting a statement covering other business transactions between plaintiff and defendant, the amount of the Bourgeois collection was again deducted and this suit followed. Defendant claims it is not liable for the premium due on the last bond obtained by Bourgeois because it did not expressly authorize plaintiff to take that particular bond for its account. But the evidence shows that there was no express authorization given for three of the four preceding bonds issued to Bourgeois for defendant’s account, there being only one instance, the first transaction, when Bourgeois was introduced into plaintiff’s office accompanied by one of defendant’s employees, which may be said to have been expressly authorized. All five .bonds were issued within a few months, that is to say, between January 6 and April 26, 1922. Having introduced Bourgeois originally and having received commissions on three subsequent transactions with Bourgeois, we must presume that the same arrangement applied to the fifth bond, which happens not to have been paid for. It was for defendant to show that it notified - plaintiff of its desire to have nothing more to do with the Bourgeois business before the fifth bond had been executed. This it failed to do. On the contrary, defendant, according to Bourgeois’ testimony, was trying its level best to collect the fifth premium from Bourgeois, including the 15% commission which had been added to the amount due plaintiff at the same time it was disputing plaintiff’s claim, and a statement rendered Bourgeois (by defendant) dated August-1, 1922, in support of his testimony, was offered in evidence.

We are convinced of the correctness of the judgment appealed from and it is therefore affirmed.


text:
    No. 8684.
    Orleans Appeal.
    UNITED STATES FIDELITY & GUARANTY CO. v. J. D. O’KEEFE, RECEIVER, NEW ORLEANS RAILWAY & LIGHT CO.
    (October 20, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Action, Par. 12; Subrogation, Par. 19.
    A Surety Company which pays a policyholder his loss and obtains a conventional subrogation of his claim against a street railway company for injuries to his automobile can maintain an action as subrogee against such street railway whether it was legally liable to its policyholder or not.
    (Civil Code, Art. 3052 — Editor’s Note.)
    Appeal from Civil District Court, Hon. Wynne G. Rogers, Judge.
    This is a suit by plaintiff as subrogee of the owner of an automobile for damages as the result of a collision.
    Judgment in favor of defendant.
    Plaintiff appealed.
    Judgment reversed.
    J. Zach Spearing, E. R. -Mabry, attorneys for plaintiff and appellant.
    Dart, Kernan & Dart, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues the receiver of the New Orleans Railway Company and the National Surety Company in solido as subrogee of the owner of an automobile for damages sustained by said automobile as a result of a collision with a street car of the defendant railway company.

Both defendants disclaim liability. There was judgment below dismissing plaintiff’s suit and it has appealed.

The liability of the defendant National Surety Company is alleged to be based upon a certain bond given for the protection of parties injured in either person or prop erty. This bond was not introduced in evidence in the lower court and in consequence is not before us. There is nothing before the court upon which a judgment could be based against the National Surety Company, consequently the judgment in their favor dismissing plaintiff’s suit must be affirmed.

The defendant has filed an exception of no cause or right of action based upon the argument that the plaintiff subrogee cannot recover because it paid the defendant a claim for which it was not liable under the terms of the contract. Whatever effect such defense may be entitled to if addressed to a legal sugrogation it is without merit where the subrogation is conventional as in this case.

On the merits the evidence preponderates in plaintiff’s favor. The injured automobile, according to the testimony of two witnesses, was struck in the rear while at a standstill on the bridge which spans the New Basin Canal. The accident seems to have been caused by the failure of the motorman to control his car, for the motorman himself testifies that his brakes were slippery; moreover, the tracks leading to the bridge are slightly upgrade and this circumstance would lend itself to the control of the street car if under proper restraint. The traffic on this bridge is heavy and particularly so at 9 a. m., the time of the accident, a situation calling for unusual care on the motorman’s part.

For the reasons assigned the judgment appeal from is reversed and it is now ordered that there be judgment in favor of the United States Fidelity and Guaranty Co., plaintiff herein, and against J. D. O’Keefe, Receiver of the New Orleans Railway and Light Company, defendant, in the sum of $115.30, with legal interest from judicial demand and all costs.


text:
    No. 9752.
    Orleans Appeal.
    WM. H. HENDREN v. CRESCENT CITY SELTZER AND MINERAL WATER CO., INC.
    (October 20, 1924, Opinion and Decree.)
    (November 3, 1924, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Holidays, Par. 2.
    It is lawful to file and record suits, to issue and serve citation, and to take and execute all other legal proceedings on Saturday half holidays.
    2. Louisiana Digest, Laws, Par. 72; Time, Par. 6, 9, 10.
    In the ten days granted by Act 122 of 1921 to take an appeal the court cannot exclude the 4th of July.
    '3. Louisiana Digest, Laws, Par. 72; Time, Par. 10.
    In counting the ten days for an appeal under said Act the Court must exclude Sundays and the tenth or last day; granting the appellant the whole of the eleventh day, after the rendition of the judgment.
    4. Louisiana Digest, Time, Par. 10.
    When the last day falls on a legal holiday the appellant has the whole of the following day.
    In the First City Court for the City of New Orleans judgment was rendered and signed on Tuesday, July 1st, 1924, against the defendant for $165.40; on Monday, July 14th, 1924, the defendant filed a motion for a suspensive appeal to this court; the judge of the City Court “refused to grant the order of appeal on the ground that same was too late”; whereupon the defendant applied to this court for a mandamus ordering the judge to grant the appeal.
    Mandamus peremptory.

      C. S. Hebert (Relator).
    Gordon Boswell, Milo B. Williams (for Judge, Division “A”).
   CLAIBORNE, J.

The relator alleges that his application for an appeal was in time for three reasons:

1st. That Saturday, the 12th, was a legal half-holiday, which cannot be counted as one of the ten days allowed to take the appeal, which fact gave him the whole of Monday, the 14th, within which to file his motion of appeal;
2nd. That the intervening July the 4th was a legal holiday, which must also be eliminated from the ten days; and
3rd. Because Saturday, the 12th, was the tenth or last day on which his appeal could be taken and must not be included in the ten days allowed'to take the appeal. C. P. 318.

I. In the case of Arthur B. Leopold vs. Schmidt, No. 9256, this court decided, on October' 29, 1923, in the language of the last section of Act No. 93 of 1912, p. 100, “that it was lawful to file and record suits to issue and serve citation, and to take and execute all other legal proceedings on Saturdays half-holidays” and that consequently Saturday was a legal day open for all legal proceedings.

II. It was also decided in. the same case that “when Act 122 of 1921 regulating the practice in City Courts in cases above $100 provides that appeals shall be allowed within ten days, exclusive of Sundays, the court cannot add thereto any other day of public rest, not even July 4th.”

III. Act 128 of 1921, p. 332, provides that:

“Appeals shall be allowed, and be returnable to the Court of Appeal, within ten days, exclusive of Sundays, from the rendition of the judgment, etc.”

The judgment in this case was rendered July 1st. July 6th was a Sunday and must be excluded from the ten days. The tenth or last day upon which defendant should have filed his motion for an appeal therefore was Saturday, July 12th.

But Article 318 of the Code of Practice reads as follows:

Art. 318: “In the delay given to the defendant for answering Sunday is included like other days; but in all cases where delay is given either to do something or to answer, neither the day. of serving the notice, nor that on which the act is to be done or the answer filed are included.” C. C. 180.

In Garland vs. Holmes, 12 R. 421, the Supreme Court said:

“In computing the time for a suspensive appeal neither the day on which the judgment was signed, nor that on which the appeal is to be taken are included. C. P. 318.”

Affirmed in State ex rel. Mercier, 29 La. Ann. 223; affirmed in Tupery vs. Edmonson, 29 La. Ann. 850, and in Meyer vs. Bichou, 133 La. 975, 63 South. 487.

In the case of State ex rel. Solari, 40 La. Ann. 793, 5 South. 63, the Supreme Court, reviewing the above cases, said on p. 795:

“Without expressing our opinion on the subject,' if the question was res nova, we conclude that the decisions above referred to, in the construction therein adopted of the application of Art. 318 of the Code to expressions precisely similar in Art. 575 have acquired the force of the rule stare decisis, and that they must control our ruling in the. present controversy. To be efficient, rules of practice must be unequivocal, and hence they must be uniformly expounded.”

In the Garland case the judgment had been signed on December 20, 1855; the appeal was taken on January 2, 1856, two Sundays intervening. The appeal was therefore taken on the eleventh day from the signing of the judgment, excluding two Sundays. Held the appeal was taken in time. The very same conditions exist in this case.

In the Mercier case, 29 La. Ann. 223, the judgment was rendered January 4; the motion for the appeal was made January 17th, the eleventh day after the signing of that judgment, two Sundays intervened. Held the motion was in time.

In the Tupery case, 29 La. Ann. 850, the judgment was signed June 18; the bond was filed June 30, the eleventh day after the judgment; one Sunday intervened. Held, the bond was filed in time.

But in all cases where the last day of the time allowed for the performance of any judicial act falls upon a legal holiday the law and the practice of the courts have always,been to allow the whole of the next day,for the performance of such act.

James W. Fowler vs. Amelia Smith and Husband, 1 R. 448; James Garland vs. Charles Holmes, 12 Rob. 421; Allen & Deblois, vs. Their Creditors, 8 La. 223; E. J. Hart & Co. vs. John Nixon & Co., 25 La. Ann. 136; John H. Catherwood & Co. vs. Wm. H. Shepard, 30 La. Ann. 677; Meyer vs. Bichow, 133 La. 979.

Our conclusion is that the judgment herein was rendered July 1st, the last of the ten days, excluding Sunday, July 6th, allowed the defendant to take the appeal, fell on Saturday, July 12th; but as this last day “must not be. included”, the defendant had the whole of the next day, Sunday, July 13th; but as this last day, Sunday, was a legal holiday, the defendant had the whole of the next day, July 14th; on that day he applied for an appeal. He was in time.

It is therefore ' ordered that the mandamus herein prayed for be made peremptory and accordingly that the respondent Judge of the First City Court of New Orleans be commanded to grant the relator the appeal prayed for herein on his complying with the requirements of the law; the costs of these proceedings to be paid by the defendant in this case, the Crescent City Seltzer and Mineral Water Co., Inc.


text:
    No. 9748.
    Orleans Appeal.
    UTLEY PAINT CO. v. E. FOSTER AND B. SHUSHAN, Appellant.
    (October 29, 1924, Opinion and Decree.)
    (November 3, 1924, Rehearing Refused.)

      (Syllabus by the Ootirt.)

    I. Louisiana Digest, Sales, Builders and Buildings. Par. 19.
    An owner'who makes a contract for painting his house and who fails to require a bond in favor of furnishers of materials makes himself personally liable for the payment of materials used upon his house. Act 139 of 1922, p. 290 (293), See. 5.
    Appeal from First City Court, Hon. Val J. Stentz, Judge.
    This is a suit by a furnisher of materials against the owner and contractor. Judgement for plaintiff. Defendant appealed.
    Judgment affirmed.
    Sanders, Baldwin, Viosca & Haspel, L. A. Moloney, attorneys for plaintiff and appellee.
    Louis L. Rosen, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit by a furnisher of materials against the owner and contractor.

The plaintiff alleges that the defendant, Shushan, as owner, made a contract with the other defendant, Foster, to paint his house; that Shushan failed to require of Foster a bond to secure the payment of furnishers of materials, and that therefore he is liable to plaintiff for the price of materials furnished amounting to $186.34.

The defendant, Shushan, excepted that the petition disclosed no cause of action and pleaded a general denial.

There was judgment in favor of plaintiff and against both defendants in solido. Shushan appealed.

The plaintiff has proven that it furnished the materials to the defendant’s property on the order of Foster, and that the price remains due.

On the trial of the case the defense extended far beyond a general denial. It is scattering and hazy. Foster claims $155 for extra work. Shushan says there was only $20 extra work, which he paid for with a dress and an umbrella. Shushan alleges he paid Foster $585 on account of the job. Foster denies it. Shushan denies that he owes Foster any balance because Foster abandoned the job; and that a painter asked him $215 to complete it. He alleges that he called on plaintiff to furnish him with a statement of balance due him for materials, and that plaintiff gave him a bill showing $67.00 balance due by Foster. Plaintiff denied the statement, and called on Shushan to produce the bill, which he failed to do.

Shushan has failed to make out this defense or any other. He is transfixed by the spear of the law.

See. 5 of Act 139 of 1922, p. 293, reads as follows:

• “If the owner fails to require a bond from the contractor he shall 'be liable to furnishers of materials to the same extent as the surety would have been.”


text:
    No 9326.
    Orleans Appeal.
    NEW ORLEANS TYPOTHETAE, INC. Appellant v. COX PRINTING AND PUBLISHING COMPANY, INC.
    (October 29, 1923, Opinion and Decree;.)
    (October 29, 1923, Dissenting Opinion.)

      (Syllabus by the Court.)

    1. Louisiana' Digest — Sales—Par. 204, 205
    The rule with reference to the probative force of notarial acts does not apply to descriptive averments contained in said act.
    2. Louisiana Digest — Pleading—Par. 109, 111;- Evidence — Par. 53, 59.
    Where plaintiff sues as assignee of a claim and fails to prove the assignment of such claim by persons authorized to act on behalf of the original creditor, he cannot recover against a defendant, particularly when the assignment has been specificially denied.
    Appeal from the First City Court, Hon. Leon L. LaBatt, Judge.
    Case remanded for a new trial.
    Benj. Y. Wolf, attorney for plaintiff and appellee.
    Delvaille H. Theard, attorney for defendant and appellant.
    This case being assigned to me this opinion was proposed as the opinion of the court, but since it was not assented to by my colleagues I submit it as my dissenting opinion.
   WESTERFIELD, J.

This is a suit brought by the New Orleans Typothetae, against Cox Printing and Publishing Company, Inc., defendant in which the sum of two hundred sixteen dollars is claimed as dues owing by defendant under a contract between plaintiff’s assignor and defendant.

The defendant filed exceptions of nonjoinder, vagueness and no cause or right of action by way of answer denied each paragraph of plaintiff’s petition, including the articulated paragraph alleging the acquisition of the claim by assignment.

The exceptions were overruled by the court below, and we think properly so. The case was tried on the merits.

During the course of the trial the plaintiff offered a certain copy of an authentic act for the purpose of proving his ownership of the claim against defendant by as signment from the original creditor undei* the contract. The offer was objected to upon the ground that the act was incomplete' in that certain resolutions which, according to the recitals of the act conferred authority upon a Committee of three to represent the New Orleans Typothetae which resolution according to the terms of the act were attached to and made par thereof, were not, as a matter of fact attached to the act as presented. The objection was overruled and the evidence admitted. No other evidence of the assignment is in the record and defendant relies upon the probative force of authentic acts establishing his title to the claim against defendant contending that the recital of authority in the act is sufficient whether the resolution conferring such authority, alleged in the act to be part thereof, are produced or not.

The plaintiff was under the necessity of proving his case, a most essential element of which was his ownership of the claim sued on. The assignment of that claim by the original creditor to plaintiff must be proven. Does the notarial act of assignment in which the appearers (three individuals) are described as “a committee representing the New Orleans Typothetae, by virtue of- a resolution adopted on the 26th day of December, 1922, a certified copy made part hereof,” make such proof without the resolution referred to, we think not. The words quoted are merely descriptive and no consideration due an authentic act compels the acceptance of descriptive averments as true, and this is true whether the evidence referred to had been .received without objection or otherwise.

Heirs of Dohn vs. Murdock, 40 La. Ann. 376, 4 South. 338. See also Heirs of Dohan vs. Murdock, 41 La. Ann. 494, 6 South. 131; Succession of Seymour, 52 La. Ann. 131, 24 South. 818, 26 South. 783; Mendelsohn vs. Armstrong, 52 La. Ann. 1303, 27 La. Ann. 1300; Orleans Parish School Board vs. Murphy, 111 La. 929, 101 South. 268.

The plaintiff has failed to prove the authority of the three individuals from whom he acquired the claim to represent the owner thereof, a most necessary item of proof.

We think the_ purposes of justice ‘require that the case should be remanded for a new trial in pursuance of the views herein expressed.

It is, therefore, ordered adjudged and decreed that the judgment appealed from be annulled and set aside; and it is further ordered adjudged and decreed that the cause be remanded to the court below for a new trial in pursuance of the views heroin expressed and that the cost of appeal be taxed against plaintiff and appellee.


author: PORTER, J.

text:
    No. 1595.
    Second Circuit Appeal.
    MRS. S. COLEMAN v. MRS. N. G. HEMLER, ET AL.
    (October 17, 1924, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor)

    1. Louisiana Digest, Sequestration — Par. 24.
    Where the amount of a release or forthcoming bond in a sequestration suit was agreed upon and executed by the parties, the formalities required by Article 279 of the Code of Practice need not be complied with in order to hold the surety liable thereon-.
    (See Honeycutt vs. Whitten, 152 La. 1046, 95 South. 216.)
    Appeal from the Parish of Richland, Hon McIntosh, Judge.
    This is a suit on a forthcoming bond given in a sequestration suit to release logs .sequestered.
    There was judgment for plaintiff and defendant surety appealed.
    Judgment reversed as to surety.
    On a rehearing the judgment of the district court is affirmed.
    Ellis and Ellis, of Rayville, attorneys for plaintiff, appellee.
    Foster, Hall and Smith, of Shreveport, attorneys fo'r defendants, appellants.
   PORTER, J.

This litigation grows out of the following facts:

In May, 1920, the plaintiff sold, by authentic act, to the defendant, Mrs. N. G. Hemler, certain standing timber on certain described land in Richland Parish, for $1,750.00, represented by three promissory notes, all of them stipulating 8% interest from date and 10% attorneys’ fees, and all secured by a special mortgage and vendor’s lien on the property sold.

The notes not having been fully paid at maturity, the plaintiff herein instituted suit on them, and prayed for a writ of sequestration of all of the timber, including that which had been cut, and was, at the time, at Archibald, as well as the standing timber'.

The timber was duly sequestered as prayed for, and on application by the defendant, the logs at Archibald were released on a forthcoming bond, signed by the defendant and J. A. Hemler, and were subsequently sold by the defendant.

The present suit is on the said forthcoming bond for a balance due of $801.00, and interest and attorneys’ fees.

Several defenses were urged, all of which have been abandoned except one, which was urged in an amended answer, and it is, in substance, that said bond is fatally defective, for the reasons that there was no appraisement of the property by the Sheriff, as required by law, and that the order- for the release of the property — which was signed by the Clerk of the Court in the absence of the District Judge from the Parish — fixed no amount of the bond. It merely permits the release of the logs at Archibald “on bond, in the manner, form and amount, and conditioned as directed by law, and it is further ordered that M. A. Cooper, Sheriff of the Parish of Richland, be authorized to receive, accept and approve the bond, to release the said sequestration, and that when the said bond has been accepted and approved by him, the said Sheriff is ordered and directed to release the said sequestration to the extent of the logs removed from said land and now at Archibald, and to surrender to defendant said property seized under the writ of sequestration.”

There was no inventory or appraisement of the property released, and the amount of the release bond was fixed by consent of the plaintiff and defendant at $1,500.00.

There was judgment in the District Court for the amount claimed against both defendants, and J. A. Hemler, the surety on the release bond, alone appealed.

This court reversed the judgment as against J. A. Hemler, the surety, for the reason that the amount of the bond had not been fixed by the judge in accordance with the provisions of Art. 279 of the Code of Practice. We said, among other things, that:

“The obligations of a surety are stricti juris, and must be rigidly construed”, and cited authorities in support of that proposition, and others upon- which we based our conclusion.

At the time that our decision was rendered, there was pending in the Supreme Court the case of Honeycutt vs. Whitten et al., on appeal from the same District Court which had decided the present case, and in which one of the points involved was identical with the one upon which our decision rested; and the decision by the Supreme Court was in line with ours, and held, on the point in question, just as we had held in the instant case. An application for a rehearing in the Honeycutt case was filed and granted, and in view of this fact, we granted a similar application in the case, and, by consent of counsel, we held the matter up to await the final decision of the Honeycutt case. Later on, the Supreme Court handed down a decision (Honeycutt vs. Whitten, 152 La. 1046; 95 South. 216) which reversed its former ruling on the point at issue. The facts in the Honeycutt case and in the present one were substantially identical; except that in the former case, the bond sued on was given to release a writ of provisional seizure, while the writ in this case was one of sequestration. While, as stated, the Honeycutt case involved the validityl of a forthcoming bond given to release property provisionally seized to enforce a rent claim, and while the Supreme Court, in a decision by the whole court, held that the requisites of appraisement, etc., were for the benefit of the lessor and lessee and could be, and were waived by the lessee by furnishing the bond and by the lessor in accepting it and suing upon it, there is no logical 'reason why the same doctrine should not apply to informalities in a bond to release a writ of sequestration as prescribed by Article 279, C. P., in a case where the judge did not fix the amount of the bond, but where it was fixed by consent of the parties to it, and where the defendant secured the release of the property and sold it, and the plaintiff accepted the bond by suing upon it.

Indeed, the able and resourceful counsel who argued the instant case orally on the rehearing practically concedes that the-doctrine announced in the Honeycutt case applies, with equal force, to the case now before us. His sole contention is that the Supreme Court committed an error in its last opinion in the Honeycutt case, and he asks us, with apparent earnestness, to correct that error by affirming our former opinion and decree.

We have no power, even if we had the disposition, to comply with his request.

• It is therefore' ordered and decreed that our former decree herein be set aside and that the judgment appealed from be, and the same is hereby affirmed.