text:
    No. 753
    First Circuit
    WRIGHT & ANDERSON ET AL. v. C. J. RICHARD & SON ET AL.
    (March 3, 1931. Opinion and Decree.)

      Wright & Warner, of Hammond, attorneys for plaintiffs, appellees.
    A. W. Spiller, of Hammond, attorney for defendants, appellants.
   LeBLANC, J.

On the application of several claimants, the district court ordered a concursus and directed the Louisiana Highway Commission to deposit with the clerk of court of Tangipahoa parish, the amount of money retained by it and due the firm of C. J. Richard & Son, with which it had entered into a contract to build a road knbwn as the “Albany-Hammond Cut-Off, State Project #575.”

Among the creditors who filed the petition was one Jesse F. Ellzey, who alleges himself to be the assignee of a claim and lien of William W. Hartness who sold and delivered to the contractors goods, wares and merchandise which were used by them in the construction of the road. The amount he claims is $190.74 and the assignment is said to be in writing and duly recorded in the mortgage records of the parish.

In answer to the demands of all the creditors, the contractors appeared and admitted that they owed the respective amounts as claimed by each, with the exception of that of Jesse F. Ellzey. They put this claim at issue by pleading settlement by the signing of a note for the sum of $171.54, in solido, with the assignor of the claim, William W. Hartness, payable to the order of Doherty Hardware Company of Baton Rouge, La., a creditor of Hartness, on which note they aver, judgment has already been recovered against them alone, thus releasing their joint debtor thereon. This issue presented the only one that was contested and tried in this proceeding. The trial resulted in a judgment in favor of the claimant, Ellzey, and the defendants, Richard & Son have appealed.

In his brief, counsel for defendants urges that there was no legal assignment of the claim in contest from Hartness to Ellzey, for want of consideration. That issue does not appear to be presented by the pleadings, but inasmuch as evidence regarding consideration was received without objection, we deem it proper to consider it.

The document itself, which we do not find in the record, is said to recite that the transfer of the claim is made “for a valuable consideration” but the consideration is not expressed therein. The evidence is clear and uncontradicted, however, that Hartness, the assignor, was indebted unto Ellzey, the assignee, in an amount in excess of ■ that of the claim assigned, and further, ' that the assignment was made and accepted in payment of that indebtedness. That was the consideration, and it appears to us to be wholly sufficient to make the assignment a valid and legal one.

The defense raised by the answer of C. J. Richard & Son, of a settlement of the claim by the signing of a joint note with ’ their creditor, Hartness, on which judgment was recovered against them alone, thus releasing the principal obligor, is not supported by the evidence in the record.

In the first place, the petition in the suit in which that judgment was obtained, copy of which is found in this record, describes the note sued on as being signed by W. W. Hartness, and indorsed in blank, not by the defendant partnership, but by Lionel J. Richard, individually. Both maker and endorser are sued on the note, and the judgment, copy of which is also filed in this record, is rendered against them both, in solido. Thus it appears that these very material defensive averments are controverted in that judicial proceeding. Furthermore, as we understand the transaction, that note, and the suit on which it is based, did not involve the partnership of C. J. Richard & Son, the present defendants, in any way whatsoever. It was purely an accommodation endorsement of Lionel J. Richard that was placed on that note, and no matter what the liability he believed was being incurred by the endorsement, it did not make of it any obligation of the partnership of C. J. Richard & Son.

The evidence satisfies us also that it was not endorsed by him, nor was it accepted by Hartness, as a payment of the account that was due by the partnership defendant herein.

Such, apparently, was the conclusion reached by the trial judge, and, as there appears to be no manifest error in his judgment in favor of the claimant, Jesse F. Ellzey, it is affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 761
    First Circuit
    DAVIS v. POITEVANT & FAVRE LBR. CO.
    (March 3, 1931. Opinion and Decree.)

      Hy. L. Garland, of New Orleans, attorney for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, and Harvey E. Ellis, of Covington, attorneys for defendant, appellee.
   MOUTON, J.

This suit was filed in April, 1928, and this is the second appeal taken therein to this court.

Exceptions of vagueness and no cause of action were filed in the original suit. The exception of vagueness was sustained on May 16, 1928, but the court, at the same time, granted plaintiff the right, until the first day of June, to amend his petition.

Plaintiff then filed an amended and supplemental petition as he was permitted to do under the order of the court. Though this supplemental petition had been filed, the court without acting upon the original petition as amended, and inadvertently, dismissed plaintiff’s suit under the exception of no cause of action. We found, Davis v. Poitevent & Favre Lbr. Co., 11 La. App. 496, 124 So. 167, that the allegations in the amended petition with the documents annexed thereto had supplied important allegations of fact lacking in the original petition, and remanded the case in order that the lower court might pass on the supplemental petition and documents thereto attached.

After the case was remanded, defendant filed a similar exception of vagueness, and one of no cause of action on the averment that the amended petition disclosed no cause of action.

The district judge rendered judgment maintaining these exceptions, from which plaintiff prosecutes this appeal.

The record shows, as it was alleged in plaintiff’s original petition filed in April, 1928, that Poitevant & Favre Lumber Company, plaintiff in injunction, had, under a bill of equity, filed in the federal court for the Eastern District of Louisiana, obtained a writ qf injunction prohibiting plaintiff in this suit from entering upon certain lands described in the complaint of the Poitevant & Pavre Lumber Company.

Plaintiff alleged in his original petition that he had obtained from the Pearl River Manufacturing Company, owned in larger part by 'the estate of W. W. Downing of Alabama, the real owners of the land, a license to cut timber thereon, and to haul away certain logs which he was selling under contract to the Pearl River Veneer Company, which has been made a co-defendant with plaintiff here in the bill of complaint.

In that petition, the first one, plaintiff alleges that the injunction had been dissolved and the bill of complaint had been finally dismissed on April 28, 1927, by Judge Burns of the United States District Court. He avers that to obtain that relief he incurred expenses for field notes and plats, for copies of acts of sale, counsel fees, loss of profits under his contract with the Pearl River Veneer Company, for loss of logs which had been cut in the swamp and had rotted because of the injunction prohibiting their removal, etc. These expenses, he alleges, amounted to $2,463, and for.which amount he is claiming damages against the Poitevant & Favre Lumber Company.

In a second petition plaintiff alleges that by the effect of the injunction his logging contract had to be abandoned, that his teams and working forces were broken up, and that he could have easily made a profit of $2',000 if his operations had not been suspended by the injunction, and in support of that claim he specifies the different items of expenses and profits upon which he grounds that part of his demand. He further claims $108 for the value of logs he avers were left on the land and* rotted there because of the prohibition to remove them under the writ.

It may be that plaintiff’s original petition was defective for lack of essential averments, but taken, as it must be, in connection with his second petition, his cause of action is fully and clearly set out.

The fact is that counsel for defendant in their second brief filed here admit that some of the objections of vagueness of which defendant nomplained had been met in plaintiff’s supplemental petition. We take it that learned counsel do not insist on the contention that no cause of action had been finally disclosed by plaintiff, the contention being now that plaintiff has “not changed the issue as made by his original petition.”

It is proper to state here that plaintiff has entered a remittitur of $500 on the amount claimed, thus investing us with jurisdiction in the case.

In the original brief of counsel for defendant the contention is made that the documents annexed to his petition constituted as it is argued by counsel, the controlling factors in his pleadings, and that it appeared therefrom that the injunction of the Poitevant Lumber Company had been in effect from July 12, 1921, to July 15, 1921, that is, for three days only. This contention might apply to the restraining order issued in the case, but not to the injunction which was granted by Judge Foster, September 19, 1921, and was dissolved with the dismissal of the bill of complaint by Judge Burns, March 17, 1927.

We refer to the above, because defendant’s counsel, arguing on the assumption that the injunction had been effective l'or only three days, claim for that reason that plaintiff could not possibly have suffered any damages on the items of his demand. Even if the damages suffered had been incurred in that short period of time, and had been only nominal in character, plaintiff would however have had a cause of action and the issue on the question of damages, whatever the amount might be, would have been a matter of defense on the merits.

The documents upon which plaintiff grounded his second petition snow that the injunction had not been in effect for only three days, but had been effective against defendant from July, 1921, to December, 1927, during a period exceeding five years when the writ was dissolved and the case was dismissed.

Hence, there is no merit_on that contention of defendant.

The bond furnished by the Poitevant Lumber Company in the federal court was for $1,000.

In this »uit plaintiff is claiming $1,963, being for a sum of $963 in excess of the amount fixed in the bond. <

Counsel for defendants cite Meyers v. Block, 120 U. S. 206, 7 S. Ct. 525, 30 L. Ed. 642, where it was held that in the United States court defendant in injunction can recover only on the bond, and when there is no bond no damages at all can be recovered.

Reasoning from the rule thus enunciated, counsel for defendant contend that plaintiff’s only course of action was to sue the defendant company directly on the injunction bond, and had to limit the amount sued for to the amount of the bond.

No doubt plaintiff could have sued defendant in our state courts on the bond, and for damages allowed under our laws and not recoverable in the federal courts. It was so held in Aiken v. Leathers, 37 La. Ann. 482; Aiken v. Leathers, 40 La. Ann. 23, 3 So. 357.

The bond given in the federal court is similar in its provisions with the bond for an injunction required under article 304, Code Prac. Under such a bond the obligation is solidary. Parham v. Cobb, 7 La. Ann. 157.

When the obligation is in solido, the creditor may sue any one of the debtors he pleases. Civ. Code, art. 2094; Rush v. Town of Farmerville, 156 La. 857, 101 So. 243; Cusimano v. Ferrara, 170 La. 1044, 129 So. 630.

Plaintiff could therefore have sued either defendant company or his surety on the bond.

He is not, however, bringing his action on the bond. His claim exceeds the maximum amount of the bond, and is for the damages he claims were caused by the effects of the injunction.

By the law of Louisiana, damages may be recovered for suing out an injunction without just cause, independently of a bond. Florance v. Nixon, 3 La. 291; Aiken v. Leathers, 40 La. Ann. 23, 3 So. 357; and so recognized in Meyers v. Block, 120 U. S. 206, 7 S. Ct. 525, 30 L. Ed. 642, as appears from excerpt in defendant’s brief.

As plaintiff has the right to sue independently of a bond in suits of this character, we cannot see why he should be precluded from asking for all of his alleged damages though they are for more than the amount of the bond. To say otherwise would be virtually to hold that the plaintiff in injunction in the federal court has, by furnishing a bond for a determined amount, cut off plaintiff in this suit from claiming all the damages and beyond the amount of the bond, which might have been inflicted on him as the result of an injunction obtained without cause, and dissolved more than five years after its issuance. The law, as we understand it, does not support such a contention. ,

We hold that plaintiff’s petitions disclose a cause of action, and that he had a right to demand the amount claimed, and was not restricted to an action on the bond and limited to the amount therein fixed.

The court below merely maintained the exceptions and obviously did not pass on the merits.

It is therefore ordered, adjudged and decreed that the judgment be annulled and reversed, and that this case be and is hereby remanded for trial on the merits, and that it be proceeded with according to law; appellee to pay the costs of this appeal, the cost below to await the decision of the case.


text:
    No. 746
    First Circuit
    H. C. JONES & SONS v. WASCOM ET AL.
    (March 3, 1931. Opinion and Decree.)
    Taylor & Parker, of Baton Rouge, attorneys for plaintiffs, appellants.
    A. L. Ponder, Jr., of Amite, and Nicholls Pugh, of Springfield, attorneys for defendants, appellees.
   MOUTON, J.

Plaintiffs alleged that in April, 1929, they entered into a contract with the school board of the parish of Livingston for the transfer of the school children in ward 1, from Clinton Allen’s place to the Live Oak High School, for a period of two years from the date of their contract, at $60 per month; that, in violation of their contract, Marshall E. Was-com, president of the school board, made a private contract with Silas Hill to transfer the children over the route covered under their contract with the school board; that Silas Hill has provided himself with the necessary equipment for the transportation of the school children, and has given verbal notice that he is preparing to run the transfer over the route covered by plaintiff’s agreement in violation of their contractual rights.

Under the foregoing allegations culled from the first petition of plaintiffs, and which substantially embody their complaint, they prayed that an injunction be issued against Marshall E. Wascom, president of the school board, and Silas Hill, temporarily, until trial could be had restraining them from operating the transfer for the conveyance of the school children over the route, hereinabove referred to, and that, after due hearing, judgment be rendered in their favor perpetuating the writ of injunction.

The only demand is for the perpetuation of the injunction, and no relief is asked for the annulment of the contract alleged to have been entered into by the school board with Silas Hill, or for the recognition and enforcement of plaintiff’s alleged contract. On this original petition .he court issued a restraining order, and ordered Wascom and Hill to show cause on September 6, 1930, why the injunction prayed for should not be allowed.

To these proceedings defendants interposed an exception of no right or cause of action.

The court, as appears from the minutes, maintained the exception, allowing plaintiffs ten days to amend their petition, and to make the school board a party to the suit.

Amendments to petitions have beeE allowed only in a few cases after judgment has been rendered on an exception of no cause of action. Commercial Nat. Bank v. Smith, 150 La. 234, 90 So. 581.

A judgment on such an exception is, however, final, must be signed, otherwise it is no judgment, and cannot be taken cognizance of even on appeal. State ex rel. Dixon v. Judge of Fifth Dist. Court, 26 La. Ann. 119; Saloy v. Collins, 30 La. Ann. 63; Texas & Pac.-Missouri Pac. Terminal R. R. v. W. G. Coyle & Co., 159 La. 1079, 106 So. 571.

As there wás no judgment signed maintaining .the exception interposed to the original petition, there was no judgment, and the rule does not apply, which ordinarily denies an amendment to a petition after a judgment has been rendered maintaining an exception of no cause of action.

In plaintiffs’ petition, it was clearly averred that the contract had been made with the school board; the lower court therefore evidently concluded that the board should be brought in as a party defendant. The court, by the logic of the situation presented by the pleadings, treated the exception in disposing of it as one suggesting the want of proper parties, and for that reason permitted the amendment which is always allowed in the interest of justice even after issue joined,' provided the substance of the demand is not changed by making it different from the one originally brought. C. P. art. 419; Commercial Nat. Bank v. Smith, 150 La. 234, 90 So. 581.

As allowed by the court, plaintiffs amended their petition making the school board of the parish of Livingston a co-defendant.

The second petition is grounded, substantially, on the same allegations as those presented in the original demand, different only in verbiage, in precision, and amplitude of averments. There is, however, no alteration in the substance of the original demand that could, in the least, alter the original demand contrary to the requirements of article 419, C. P., regulating amendments that are permissible.

It must be noted, in connection with the foregoing discussion, that defendants urged no objection to the order of the court allowing the amendment, and contented themselves by filing another exception of no cause of action to the amended petition, ,and the incidental restraining order * therein issued by the court.

This second exception was maintained by a judgment signed by the judge.

In the second petition, the allegations of the first filed are practically reiterated with a slight difference in language and expression. They are both aimed at the same purpose; that is, to prevent the school board from permitting Silas Hill to' operate his transfer over the route claimed by plaintiffs under their contract.

In the second petition, plaintiffs, allege that they operated their transfer for the school children under their contract for the current year of 1929-1930, and that it was never legally canceled, and was still in full force; that in June, 1930, the Livingston school board, acting under the influence of Marshall E. Wascom, its president, undertook illegally to cancel their contract with the school board. Further, plaintiffs allege that the school board had no right to treat the contract as canceled, “or to recognize the invalid and illegal contract granted by its member, Marshall E. Wascom, to the said Silas Hill, or to permit the said Hill to operate under same or to pay therefor, or to withhold the pay of your petitioners who are now operating under the valid contract that they hold from the said School Board,” etc.

In the prayer of their petition, plaintiEfs ask that the school board be prohibited from treating the contract as in any wise canceled, from withholding the pay of petitioners, “and from recognizing in any way the invalid and illegal contract by its member, Marshall E. Wascom, to the’ said' Silas Hill,” etc.

In one part of the second petition, it is alleged that the contract was never legally canceled. From such an allegation it might reasonably be inferred that it was or might have been illegally abrogated. Other allegations are to the effect that the school board had undertaken to illegally cancel the contract.

In article V of the amended petition, it is alleged that the school board had no right to treat the contract as canceled “or to recognize the invalid and illegal contract granted by its member, Marshall E. Wascom, to the said Silas Hill," etc.

If this contract, illegal or not, was recognized by the school board, which was withholding the pay of petitioners, as alleged, it had certainly, from the averments of plaintiffs’ petition, which must be taken as true, become the contract of the board for the transportation of the children over-the route in question.

Accepting as true, as we must, the allegations of the two petitions, there was an outstanding contract for the conveyance of these children in existence between Silas Hill and the school board, invalid or not, when this injunction was demanded.

It is true that plaintiffs aver that this contract was entered into by the school board with Hill through the misrepresentations and influence of Wascom, president of the board. This attack on the contract based on misrepresentations is for a rel%: tive nullity which was subject to the administration of proof before annulment of the agreement could he obtained. If it had been attacked as a simulation, or as being absolutely null because in contravention of law or for other legal cause, a different question might be presented. Taking the averments of plaintiffs’ petition as true, there was a contract in existence under which Hill had the right to operate the transfer.

Plaintiffs have alleged no cause of action to prevent Hill from operating under his contract by injunction, without a demand for its annulment. In the second petition, likewise in the first, there is no demand for the annulment of the contract entered into by the board with Silas Hill. The demand and prayer in the two petitions are restricted solely for relief by the writ of injunction to prevent Hill from operating his truck over the route in question. Such an injunction could not legally issue until the contract with Hill was annulled or set aside, for which there is no demand.

In the body of the petitions and in the prayer, it will be observed that there is no demand that the contract of petitioners, if canceled, be reinstated, and, if not canceled, that it be enforced. There is no primary demand in the petitions to base the injunction which is an incidental proceeding.

There are cases in which injunctions have been maintained where the demand was purely for the writ. In this case, however, such relief could not be granted without a demand for the annulment of the contract between Hill and the board, or for the reinstatement of plaintiffs’ contract with the board, if plaintiffs mean that it was canceled; and, if not canceled, that it be recognized and enforced.

The real cause of action was for the annulment of the Hill contract or for the reinstatement or enforcement of plaintiffs’ contract with the board, but there is no demand for such relief either in the body of the petitions or prayer. Without such averments or prayer, to that effect, there was nothing to support the restraining order issued or for the perpetuation of the injunction.-

The exception was properly sustained, and the case dismissed.


author: LeBLANC, J.

text:
    No. 747
    First Circuit
    EDWARDS v. WALKER
    (March 3, 1931. Opinion and Decree.)

      Hypolite Mixon, of Amite, attorney for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   LeBLANC, J.

On January 31, 1885, Nicholas S. Edwards made a partition of property which belonged to the community between himself and his deceased wife, among his eight children in such way as to allot to each one of them a tract of land approximately eighty-six acres in area. Each took possession of his or her respective tract under the deed.

Among the eight children was Millard F. Edwards, the eldest, now deceased, and Walter Edwards, who. received adjoining tracts. The plaintiff herein, Daniel Edwards, Jr., became and is now the owner of the Walter Edwards tract and the defendant, Samuel E. Walker, presently owns the Millard Edwards tract.

After setting up his title, plaintiff alleges in his petition that the defendant has taken possession of about four acres of his land, without any title thereto, and refuses to deliver possession thereof. The prayer of his petition is to be recognized as owner, and as such, to be entitled to the possession of his property.

The defendant, in his answer, admits the acquisition of the properties in the manner set out in plaintiff’s petition, and avers that he is in possession of the property that rightly belongs to his title according to hiw deed. He seems to rety on a line which marks the eastern boundary, which he avers was established by Nicholas S. Edwards at the time he made the ‘partition among his children, and which, he alleges runs between two witness trees, one a poplar and the other a persimmon. He also pleads the prescription of ten and thirty years.

In an effort to establish the correct line between the two properties, plaintiff had had a survey made by the parish surveyor who testified at length in the case, explaining his survey. After hearing his testimony as well as that of numerous witnesses in reference to the act of partition, and what was the actual intention of the parties in respect thereto, the district court rendered judgment in accordance with the survey, establishing the eastern boundary line between the properties as shown on the plat of survey, and recognizing the plaintiff as the owner and entitled to the possession of his land as shown, with the exception of that portion thereon appearing as occupied by the improvements of Millard F. Edwards.

The defendant has appealed.

From the act of partition, it appears that Millard Edwards who had the first choice, selected a tract containing seventy-six acres and that in order to make up his total of eighty-six acres, it became necessary to add a ten-acre tract which is described in his deed, as, “commencing at the Allen Spring and running S. E. to a post below the gin, thence N. W. to the intersection of T. & R. line and back to the beginning, so as to include his Mil-lards home gin and stables * * (The description is copied as it is written in the copy of the act before us.)

As the surveyor acknowledged the impracticability of running a straight line northwest from the post below the gin site to the intersection of the township and range line so as to include the residence and stables referred to in the description, the district ■ judge permitted, the introduction of evidence to show the real and actual intention of the parties at the, time the partition was made and accepted by all. We believe his ruling in that respect was correct.

The evidence established what is re-, ferred to as the “old Convington Road” as the boundary line between the two properties. The Millard Edwards property was on the west side of the road and the Walter Edwards tract on the east. The road was therefore the eastern boundary of the Millard Edwards property. His residence, which we gather from the evidence was the one he lived in even before the partition, as well as the gin referred to, were on the west side of the road and necessarily were included in the tract which was alloted to him. The stable, on the other hand, was on the east side of the road.

The tract allotted to Walter Edwards in the act of partition is described as containing eighty-six acres, more or • less, “beginning at intersection of T. & R. lines 2 & 8 and running S. E. along the old Convington road to the pine field hollow, thence E. up said hollow to E. boundary line of said Headright, thence N to T line 2 thence W along said line to ¡place of beginning.”

As the matter impresses us, the issue in the controversy arose because of the location of what is now only the stable or barn site of the old Millard Edwards barn on the east side of the old Convington road. As his title was made out in such manner as to include his stable within his eastern boundary line, there appears the basis for a reasonable contention as to its exact location. We find a satisfactory explanation, however, from sufficient proof adduced, that when the ancestor, Nicholas S. Edwards, was stepping off the ten-acre tract which was to go to Millard S. Edwards, to make up his eighty-six acres, he observed that it would fall just a little short of taking in the barn or stable which belonged to him. Not to deprive him, therefore, of his buildings or break up the farm as it were, he went beyond the road and established the line so as to include the stable. That seemed to be the '-sole purpose he had in mind. We do not believe that he ever contemplated running the line so as to include in Millard Edwards’ title four acres of land on the east side of the road. Especially is this borne out by the fact that in the description of the Walter Edwards tract, the road is given as the boundary line.

There is further proof that three or four years before the trial of this suit, the same controversy herein involved had arisen. At that time, Millard Edwards, defendant’s author in title, was living. He and several parties, including the present defendant and his father, C. D. Walker, met at the office of the clerk of court in the courthouse at Amite, and, after having carefully read the act of partition, and gone over the matter thoroughly, they all came to a gentlemen’s understanding and handshaking agreement to the effect that all that the Millard Edwards title called for across the old Convington road, according to the act of partition, was the site on which his stable formerly stood. The agreement was not in writing and is not of record and is no,t therefore binding as such on the defendant in the present suit, but it is a significant matter of proof which lends great weight in determining the question at issue between the present owners of the two tracts of land.

The defendant has failed to sustain the prescriptions which he pleaded. He has not shown title to the property he claims to support the plea of ten years, and has failed to support by proof, the establishment of the line which he contends runs bétween the popiar and persimmon witness trees. There was a line blazed between these points recently to show the delivery of some pine timber sold by the plaintiff from off the four acres of land in controversy. This line, however, had nothing to do whatever in the way of indicating the division line between the two properties.

Defendant’s plea of the prescription of thirty years demands an actual, uninterrupted possession during that period of time. This, he has not shown. On the contrary, what possession there was, seems to have always been exercised by the plaintiff and his authors in title.

We find no error in the judgment of the lower court and it is therefore affirmed.


text:
    No. 755
    First Circuit
    FINANCE SECURITY CO., INC., v. REID
    (March 3, 1931. Opinion and Decree.)
    Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.

      M. I. Varnado, of Bogalusa, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff company sold an auto to defendant, took another car in exchange valued at $200, and for the balance defendant executed his promissory note for $460, $60 of which was for insurance taken on the car in favor of plaintiff, and for interest. The note given by defendant is dated March 9, 1929, and the insurance policy was issued for one year from that date.

The car was accidentally destroyed by fire on the 7th of May, 1930, after the terms of the policy had expired. At that time defendant had paid $274.45 on the note, which left a balance thereon of $185.55, for which this suit is brought. As the auto was burned after the policy had expired, defendant’s car was not covered by the insurance. His defense is, substantially, that under his agreement with plaintiff, its vendor, the latter was to keep the auto insured for an amount sufficient to cover the unpaid balance of the purchase price, and, if not paid in one year, plaintiff company would make arrangements to carry the insurance on the oalance due. Defendant pleads that plaintiff failed to carry insurance to cover the unpaid balance on the car as it was agreed, and that, as it was not insured when destroyed, it was due to the fault and negligence of plaintiff, for which defendant is not responsible, and that he is not liable on the note.

Plaintiff, under the provisions of article 2232, Civ. Code, carried the burden of proof to show the execution of the obligation upon which he sues. He has discharged that burden. “On the other hand,” says that article, "he who contends that he is exonerated, must prove the payment or the fact that has produced the extinction of the obligation.”

Obviously, there was no payment of the note, as the insurance was not, and could not be, collected. The contention of defendant is that the obligation on its part was extinguished because plaintiff, in violation ■ of its agreement, failed to keep the policy alive on the unpaid balance of the note which represented the purchase price of the auto. The burden of proof was therefore upon defendant to establish the extinction of his obligation.

The officers of plaintiff company testify that defendant was to pay $10 per week on the $460, the amount of his note. They claim that the policy was made for one year, under the expectation that, if defendant made these weekly payments, amounting to $40 per month, the note would be paid in about eleven months, and therefore prior to the expiration of the insurance policy. They say the policy was taken out for the mutual protection of the plaintiff company and defendant, which seems to us to have been a reasonable arrangement in the interest of all parties concerned. The premium for the policy was, however, embodied in the note, and was to be paid by defendant.

The defendant contends that the payments on the note were to be $5 per week, and not $10, claimed by plaintiff. Under such an arrangement, the installments would have been extended far beyond the term of one year, the period for which the policy had been issued. . It is not reasonable to believe that plaintiff company would have entered into such an agreement.

It is shown that defendant signed a document, dated March 9, 1929, the day the note was executed, authorizing the Great Southern Lumber Company to make a weekly deduction of $10 from his wages to be applied to the payment of this note. This fact c’early indicates that plaintiff company wanted to secure the full payment of the note before the expiration of the policy.

The manager of plaintiff company and its president testified that the policy in question was taken for one year, and that all their contracts expire in twelve months. No doubt, many contracts of the same character, as the one under investigation, have been entered into by plaintiff company, and we cannot believe that these officers would have risked the making of the general statement, above referred to, if not true. They explain that, if a car is not paid in one year, it is “repossessed” by the company, except when the purchaser who is unable to .pay within the year wants it “refinanced,” and pays a carrying charge and insurance for an extension or renewal of the policy. Such must be the course followed by the company, because it is not to be believed that it would undertake to renew the insurance which evidently would have to be continued at the expense of the purchaser, unless it was done at his request, or at least with his consent.

Mrs. Reid, wife of defendant, testifies to a conversation she says she had with Mr. Foil, manager of plaintiff company, in its office. Her statement is that, as her car had caught fire, she called on Mr. Foil to know if she could have it insured in her name, and that he replied she could not before the insurance was paid out. She testifies, further, that Mr. Foil, said his company carried the insurance until the unpaid balance was paid out. She says the others present in the office were Miss Wadsworth and Mrs. Rutland. She is positive Mr. Foil said he would keep the car insured for the unpaid balance of' the note, that he did not mention it was one year, and that she left with the impression that the insurance continued after the end of the year.

Mr. Foil testifies he told her the insurance was for the unpaid balance for one year, and that she could not get another policy as long as the policy issued on her car was in effect.

Miss Wadsworth, cashier of plaintiff company, says Mr. Foil stated that there was insurance on the car for the term of one year for the unpaid balance.

Mrs. Rutland, to whom Mrs. Reid refers in her testimony, says Mr. Foil told Mrs. Reid that the car was insured until it was paid for, but did not hear Mr. Foil tell her anything about her being able to insure it in her name.

Mr. Foil says Mrs. Rutland was in the car and did not come in the office at all. Miss Wadsworth says Mrs. Rutland was in the car.

We find that the circumstances of the case support the testimony of the witnesses for plaintiff company to the effect that it had taken the insurance on the auto for one year from the date of the execution of the note, and that defendant has failed to show the extinction of his obligation on the note by virtue of an agreement that plaintiff had obligated itself to renew or continue the insurance after the year had expired or until the unpaid balance on the note was paid or satisfied, either during tlje ensuing year qr thereafter.

The judgment in favor of plaintiff for the amount demanded is correct.


text:
    No. 739
    First Circuit
    PENN LIBERTY OIL CO. v. CRESCENT MAGNOLIA PLANTING & MFG. CO., LTD., (Intervention and Third Opposition of B. Rosenberg & Sons, Inc.)
    (January 26, 1931. Opinion and Decree.)
    Harris Gagne, of Houma, attorney for plaintiff, appellant.
    Ellender & Ellender, of Houma, attorneys for intervener, appellee.
   MOUTON, J.

A judgment for $1,500 was obtained by plaintiff company against defendant company on December 16, 1927, and was recorded in the parish of Terrebonne, December 17, 1927.

A fi. fa. was issued in execution of the judgment January 24, 1930, under which a tract of land in Terrebonne parish was seized and advertised for sale on March 8, 1930.

The intervener, Rosenberg & Sons, had obtained a judgment against defendant company in October, 1926, for $920.76, less a credit of $260.22, and which had been recorded on the 14th of October of that year, over a year prior to the inscription of plaintiff’s judgment. Rosenberg & Sons, on allegations setting out the previous registry of its judgment, came into the case by way of intervention and third opposition, asking to be paid by preference over plaintiff, and praying for an order commanding the sheriff to retain in his hands an amount sufficient to satisfy its judgment with cost, that plaintiff company, defendant company, and the sheriff he cited, and that after legal proceedings judgment be rendered in its favor ordering the sheriff to turn over to intervener the amount retained for the payment of its claim.

The court, on March 8, 1980, granted the relief sought by intervener by issuing an order commanding the sheriff to retain in his hands from the sale to be effected March 8, 1930, an amount sufficient to pay and satisfy the judgment of opponent of $920.75, less a credit of $260.22.

Service of this order was accepted and citation waived by the sheriff and counsel for plaintiff company.

The acceptance and waiver bear the date of February 8, 1930. Evidently, by error or inadvertence, February was inserted for March.

The sheriff came into court April 14, 1930, made his return stating that he had sold the property • seized for $4,667, and had been paid by A. W. Pettigrew, adjudicatee, $472.50 for the costs of the clerk, keeper, his costs, and for advertisement. The balance of the price of sale, $4,194.50, the sheriff states in his return was retained by Pettigrew, purchaser, in his hands, to pay other judgments which are enumerated in a proces verbal signed by him and Pettigrew. It is clear from the return of the sheriff that he did not retain a sum to pay the judgment of the intervener, as he was ordered, and that he flatly disobeyed the order of the court.

On final trial the district judge rendered judgment maintaining the third opposition, decreeing priority of payment in its favor out of the proceeds of sale, ordering the sheriff to retain from the proceeds of sale he had made or would thereafter make an amount sufficient to ipay the judgment of. plaintiff in opposition, with legal interest and cost.

Plaintiff company appeals.

In its petition for a third opposition, Rosenberg & Sons averred that their judgment had been obtained and recorded at a date prior to the registry of plaintiff’s judgment; also that the Crescent Magnolia Planting & Manufacturing Company was hopelessly insolvent at the time, and had no other property known to intervener, other than the property seized, on which its judgment could be satisfied.

The plaintiff company, without urging any exception or objection to the form of proceeding adopted by third opponent, filed its answer to the third opposition admitting the prior registry of third opponent’s judgment, but denying the insolvency of the Crescent Magnolia Planting & Manufacturing Company, defendant in these proceedings, or that it had no other property on which intervener’s judgment could be satisfied.

C. P. art. 396, says: A party may intervene when intervener claims the ownership of the thing or where he contends he has a privilege on the proceeds of the thing seized and sold. As third opponent asserts no ownership herein, his rights, counsel for plaintiff company contends, must be controlled by that part of the article which refers to cases where claimant claims a privilege on the proceeds of the thing sold. There is, however, article 403, C. P., under the heading of “Third Opposition,” the same under which article 396 is found, wherein it is said:

That if the person “intervening has only a general or legal hypothecation on ihe property seized, the plaintiff in the original suit shall be paid in preference, if he prove that the defendant has other prop-’ erty of sufficient value to satisfy the claim of third opponent.”

In the case of Deneufbourg v. Didion, Romer, 7 La. Ann 344, it was shown therein that the defendant was insolvent and that the property sold under the plaintiff’s mortgage was the only asset out of which the previous judicial mortgage existing upon it could be satisfied. The prior mortgage, although judicial, was given preference over the proceeds of sale, and the seizing „creditor was allowed whatever surplus might remain. The seizing creditor appealed, but the Supreme Court said it was unable to perceive on what ground he could expect a reversal of the judgment.

In this case the defendant company whose (property was sold is totally insolvent, and plaintiff, the original creditor, not having proved that defendant has other property of sufficient value to satisfy the claim of third opponent, we are unable to see how, according to the expressions of the court in the case above cited, he can claim a preference on the proceeds of sale under article 403, C. P.

In Luc Dobard v. Charles Bayhi, 36 La. Ann. 134, where the question at issue was again presented, the court referred approvingly to Deneufbourg v. Didion, 7 La. Ann. 344, above cited.

In Dobard v. Bayhi, 36 La. Ann. 134, above referred to, a judgment creditor who had obtained a judicial sale of the property, bought it at the sale. In that case, third oppositions' were filed by creditors who asserted their rights to be paid by preference from the proceeds of sale by reason of their previous recorded mortgages. The sheriff, in that case, was ordered to retain in his hands the Proceeds of sale to meet the demands of the intervening mortgage creditors. The sheriff, in that case, stated in his proces verbal that none of the proceeds were paid over to him, but that the same had been retained by Luc Dobard, adjudicatee. It also appeared in that case, as in this, that the service of the order directing the sheriff to retain the proceeds in his hands, had been accepted by him on the day of sale, and before it was actually made. The court said that the sheriff should have compelled Luc° Dobard, plaintiff and adjudicatee in that case, to comply with his bid to the extent for the sum which the court had ordered the sheriff to retain in his hands, or else that he should have resold on the spot.

Here it is true that plaintiff company, which had obtained the sale in execution of its judgment, did not buy the property which was done in the Dobard case, supra, as the adjudication in the present suit was made to Pettigrew, a third party. Such a difference, however, is of no importance, as it was in the instant, as in the cited case the plain duty of the sheriff to obey the order of the court by retaining in his hands an amount sufficient to pay the judgment of intervener, as he was clearly directed to do. He got from the buyer, Pettigrew, only $472, to pay the cost of the clerk, keeper, his own, and for advertisement of the sale, and did not retain the amount from the proceeds as he was ordered.

In the Dobard case, it will be observed that the court took occasion to say that, whatever might be the rule in reference to the right of the ¡purchaser at judicial sales to retain the price where the claims were secured by privilege, special mortgages, or otherwise, it did not apply when, as in that case, the third opposition had been filed before the sale, and the court had ordered the sheriff to retain the proceeds of sale, of which the sheriff had been notified.

The case at bar unquestionably presents the same important legal features, and tor a like reason the rules applicable to the retention of the price of sale by adjudicatees at public sales have no application, although the court in the Dobard case approved the ruling in Deneufbourg v. Didion, 7 La. Ann. 344, where the rule expressed in C. P. art. 403, was directly applied between litigants claiming under judicial mortgages and not on any privilege or special mortgages.

In this case, it will be noted, as was hereinabove observed in this opinion, that plaintiff came into court without urging any objections to the third opposition filed pither by exception or otherwise, and joined issue by answering to the merits. The court had certainly jurisdiction of the case here, and the legal authority to order the retention of the amount from che proceeds, as was directed.

Plaintiff having joined, issue with third opponent without urging any exception or objections to the form of proceedings followed by intervener — if plaintiff had any grounds for objections — they were waived, and the order of court ordering the amount retained from the proceeds, service of which was accepted by the sheriff, was certainly binding on him, and which he had no legal authority to disobey or repudiate.

The third opposition was therefore properly maintained.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,680
    Orleans
    HOLMES v. SAENGER AMUSEMENT CO., INC., ET AL.
    (February 2, 1931. Opinion and Decree.)
    (February 16, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for plaintiff, appellee.
    Rosen, Hammer, Wolff & Farrar, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

On February 16, 1925, the Canal Realty & Improvement Company, Inc., issued a number of bonds aggregating $500,000 in principal and secured by mortgage of certain property in the city of New Orleans.

The entire issue was bought by the Saenger Amusement Company, Inc., and Loew’s, Inc. In order to enhance the value of the bonds and facilitate their sale, the purchasers caused the following indorsement to be made upon them:

“As the owners in indivisión of the within bond, and in order to facilitate the sale hereof, and as an inducement to third persons or corporations to purchase same, the undersigned Saenger Amusement Co., Inc., of New Orleans, Louisiana, a corporation organized under the laws of the State of Louisiana, under authority of a resolution of its Board of Directors, adopted at a meet; ing duly held and convened, and Loew’s, Incorporated, of New York, a corporation organized under the laws of the State of Delaware, under authority' of a resolution of its Board of Directors, adopted at a meeting duly held and convened, have jointly and severally unconditionally guaranteed, and do jointly and severally unconditionally guarantee to tlie owner of the Within bond, his heirs and assigns, the punctual payment of the principal and interest thereon, as the same mature, and the undersigned agree punctually to pay said principal and interest, if default in payment thereof be made by said Canal Realty & Improvement Company, Inc. This guarantee is intended to be and is a valid, present, continuing, absolute and ' unconditional joint and several obligation of the undersigned as guarantors for the payment of this bond as above provided, and of any of the interest coupons thereof, and it shall not be impaired or affected by any extension of payment of this bond, coupons or interest, or anything done or omitted to be done by Canal Realty & Improvement Company, Inc., or by the Trustee in the deed of trust securing this bond, or by any other person or corporation whatsoever, it being the intention hereof that the under, signed as guarantors, shall unconditionally be bound jointly and severally, in any and all events with the maker hereof, for the ultimate payment and discharge of the principal and interest of this bond, and shall be and become immediately liable in solido to pay and discharge same in the event default in the payment hereof be made by said maker.
“Saenger Amusement Co., Inc.
“By J. H. Saenger
“Loew’s, Incorporated,
“By Leopold Friedman.’’

The act of mortgage securing the bonds contained a stipulation which provided for the payment of interest coupons and the gradual retirement of principal through the Mortgage & Securities Company, which corporation had underwritten the bonds. This provision recited that on the 1st day of each month the company would deposit with the Securities Company one-twelfth of the amount necessary to pay the principal, interest, and 2 per cent federal tax becoming due on the bonds within the ensuing twelve months, “and to the extent of the monies so paid or deposited with said Mortgage & Securities Company, the trustee and/or the holders of any of the bonds issued hereunder shall look solely to the Mortgage & Securities Company for payment, and the Company shall be under no further liability therefor.”

In August, 1929, the Mortgage & Securities Company failed. At that time there were certain funds which had been deposited with the Securities Company by the Canal Realty & Improvement Company, Inc., which, under the terms of the mortgage, were applicable to the payment of principal and interest as of January 1, 1930.

The plaintiff in this case was the owner of three of the bonds, aggregating $1,500, upon which there was. due him $1,017.54, which, because of its insolvency, the Securities Company failed .to pay. He brought this suit against the Saenger Amusement Company, Inc., and Loew’s, Inc., as guarantors of the bonds. On behalf of Loew’s, Inc., an exception to the jurisdiction was maintained and acquiesced in. Consequently that defendant is out of the case. After a hearing upon the merits, judgment was rendered as prayed for against the other defendant, and it has appealed.

The case turns upon the interpretation of the guaranty indorsed upon the bonds; the contention of plaintiff being that it is unlimited and unqualified by any provision or condition in the act of mortgage, and the position of defendant being that the guaranty goes no further than to insure the carrying out of the obligations of the Canal Realty & Improvement. Company, as the same appears in the act of mortgage, and that, since that company has paid to the Mortgage & Securities Company the amount now sued for, it is, under the terms of the mortgage, .relieved from any responsibility in the premises.

Counsel for appellant in their brief say that it was the original intention of the Saenger Amusement Company, Inc., and its associate, Loew’s, Inc., for whose benefit the bonds were issued, to guarantee the bonds directly,, but, being persuaded by counsel for the. Mortgage & Securities Company that this action on their part would be ultra vires, “the device was adopted of having the bonds issued by Canal Realty & Improvement Company, Inc., without a guarantee, then having them purchased by Saenger Theaters, Inc., and Loew’s, Incorporated, and then having the latter two companies sell them to Mortgage & Securities Company with the guarantee endorsed thereon. This device was carried out. The bonds were purchased by Saenger Amusement Company, Inc., and Loew’s, Inc., from Canal Realty & Improvement Company, Inc., the maker, and then resold to Mortgage & Securities Company with the guarantee of these two companies.’’

Upon the foregoing statement the argument is made that the intention of defendant comprehended nothing more than the guaranty of the bonds in accordance with the terms of the act of mortgage, to which, but for the belief that its action in that respect would be ultra vires, this defendant and its associate would have been parties, and the conclusion reached that, in construing the guaranty upon which this suit is predicated, it must be considered in the light of the defendant’s original intention. It is sufficient answer to this contention to say that the intention of parties to an instrument must first be determined by a consideration of its terms, if the writing be clear and unambiguous, the intent of the parties, is revealed by its four corners. We believe the wording of the guaranty very clear and to admit of but one interpretation. Its purpose is stated to be to give the bonds greater value than they possessed theretofore, in order to attract purchasers; in other words, to add something to the bonds which, without the indorsement of defendant and its associate, they did not possess. This point is conceded by defendant’s counsel, but they contend that the intention was to add only such value as would result from the indorsement of the undertaking of the Canal Realty Improvement Company, Inc., a sufficient reason, it , is. claimed, for the guaranty in line with the declared purpose of increasing the salability of the bonds. It seems to us, however, that, if this had been the intention, it would have been a very simple matter to have incorporated some language in the guaranty which would permit of that construction. But, on the contrary, the guaranty indorsed upon the bonds contains absolutely no reference to the act of mortgage, or to the obligations of the Canal Realty & Improvement Company, Inc., thereunder. It is couched .in the broadest terms, indicating an intention to go far beyond the undertaking of the Canal Realty & Improvement Company, Inc., in the act of mortgage. For example, the guarantors '“unconditionally guarantee to the owner of the within bond, his heirs and assigns, the punctual payment of the principal and in terest thereon as the same mature,” and “this guarantee is intended to be and is a valid, present, continuing, absolute and unconditional joint and several obligation of the undersigned as guarantors for the 'payment of this bond as above provided, ' and of any of the interest coupons thereof, and it shall not be impaired or affected by any extension of payment of this bond, coupons or interest* OR ANYTHING DONE OR OMITTED TO BE DONE BY CANAL REALTY & IMPROVEMENT COMPANY, INC., OR BY THE TRUSTEE IN THE DEED OF TRUST SECURING THIS BOND, OR BY ANY OTHER PERSON OR CORPORATION WHATSOEVER’’ (capitals ours), and, lest there be any mistake as 'to'the extent of their obligation in this regard, the guarantors, continue to reassure all purchasers that it is “the intention hereof that the undersigned' as guarantors, shall unconditionally be bound jointly and severally, in any and all events, with the maker hereof, for the ultimate payment and discharge of the principal and interest of this bond, and shall be and become immediately liable in solido to pay and discharge same in the event default in the payment hereof be made by said maker.”

Such language clearly contemplates the payment of the principal and interest" of the bonds under any and all circumstances and without any regard to the method of payment provided in the act of mortgage; the sole condition of the guaranty being the failure of the bondholder to get his money. It is very difficult to believe that the defendant and its associate should have given currency to an obligation expressed in the terms of this guaranty, if their intention was to limit or qualify their liability by the terms of the mortgage, without reference to the instrument itself and without any qualifying phraseology in the guaranty. Che conclusion is irresistible that the guarantors of these bonds intended to give these securities their unconditional indorse.ment in order to allay any doubt which intending purchasers might entertain as to the financial stability and value of the bonds by placing behind them the full measure of their faith and credit, without regard to any qualifications, terms, or conditions contained in the original act of mortgage.

For the reasons assigned, .the judgment appealed from is affirmed.

JANVIER, J.

(dissenting). I agree with the statement made in the majority opinion that this case turns upon an interpretation of the guaranty indorsed upon the bonds; though, if it were necessary to refer to the act of mortgage securing the bonds, I am well convinced that that document is sufficiently identified with the bonds to permit of its being taken into consideration; but I cannot concur in the view that the guaranty can be interpreted as placing upon the guarantor an obligation greater than that undertaken by the principal.

It is true that the guaranty is involved in legal phraseology and is unnecessarily long, but a reading of it shows that it is. divided into two complete sentences, the first of which terminates with the statement that the liability of the guarantor comes ino existence “if default in payment thereof be made by said Canal Realty & Improvement Company, Inc.,” and the second of which terminates with a similar clause to the effect that the guarantor shall he liable “in the event default in the payment hereof be made by said maker.”

Thus each of the sentences contains a conditional clause to the effect that the guarantor’s liability comes into existence only in the event the principal defaults in making payment.

It is conceded by all parties that the principal has not defaulted and has made every payment in strict accordance with the stipulations of the obligation undertaken by it.

Since the guarantor is liable only in the event the principal defaults, and since it is conceded that the principal has not defaulted, then the guarantor is not liable.

It is true that in the guaranty reference is made to the trustee and to any “other person or corporation whatsoever,” but one who reads the document carefully will immediately see that the guarantor of the principal is not made liable for the acts or omissions of the trustee, or of other third persons, but merely that the provision is that, if the guarantor’s liability comes into existence by reason of the default of the principal, then nothing the trustee or any other third person can do will impair or otherwise affect such liability. Evidently the purpose of the guaranty was to place the guarantors, who were well known as being financially sound, in the shoes of the principal, an unknown subsidiary, and, in my judgment, it was not intended nor stipulated that the guarantors should also stand behind the trustee, the depositor, and all other persons or corporations whose names may appear in any of the Various documents.

I think the liability of the guarantors is limited to that of the principal, and I therefore respectfully dissent.


author: JANVIER, J. WESTERFIELD, J.

text:
    No. 13,414
    Orleans
    DYER v. DODGE
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Beard & O’Keefe and Chester A. Peyronnin, of New Orleans, attorneys for defendant, appellee, Reliance Homestead Association.
   JANVIER, J.

Plaintiff, having obtained judgment for $2,400, interest, et cetera, against defendant, caused garnishment to issue and among the garnishees was Reliance Homestead Association.

In answer to the interrogatories propounded to it, that association, stated that Dodge, defendant in the principal matter, and against whom the main judgment had been rendered, haft “borrowed from respondent the sum of $800.00 for which he made, subscribed, and delivered to respondent, his promissory note dated on said day and payable 90 days after date. That, in making said loan, said W. R. Dodge pledged as security for said loan and the payment of said note, to respondent, the said 10 shares of stock aforesaid as evidenced by said Certificate No. 3793, in accordance with law. That said note is past due, having matured on, or about, May 31, 1929. That nothing has been paid on account of said note - and pledge for $800.00 and that said full amount is due, past due, and owing by said defendant, W. R. Dodge, to this respondent. That said pledge is in full force and effect, and that this respondent has a lien and privilege, right and claim, by preference and priority over all persons whomsoever, and especially the plaintiff in the above entitled and numbered cause, for and against said ten shares of stock, for the faithful payment of said note and pledge, which pledge this respondent hereby claims and asserts in accordance with law.”

Thereupon plaintiff, Dyer, obtained from the district judge an order requiring the homestead association to show cause why it should not be condemned to pay over to plaintiff the sum of $200, with legal interest from ‘‘July 9, 1929,” and costs of the said rule.

July 10, 1929, was the day on which the garnishment proceedings were issued and were served on Reliance Homestead Association, and we assume that it is from that day that plaintiff intended to claim interest.

In answer to the said rule defendant in rule averred that it could not pay over to plaintiff the $200 claimed, without violating the provisions of section 7 of Act No. 120 of 1902, as amended by Act No. 280 of 1916,, which is the act under which homestead associations, are incorporated. Section 7 reads as follows:

“Be it further enacted, etc., That a member may withdraw his shares or credits thereon at any time by giving written notice of such intention and shall then be entitled to receive the amount paid in by him, and such proportion of the profits as the act of incorporation or by-laws may prescribe, less all fines, charges, expenses and losses accrued or contingent to the time of notice of withdrawal, as the board of directors may determine.
“Each association shall keep a register of notices of withdrawal in the order in which- they are filed, giving dates of no,tices and amounts to- be withdrawn, and shall pay the same in the order in which such notices of intention to withdraw were filed. Whenever the proportion of receipts ordinarily made applicable to the demands of withdrawing members by resolution oil the board of directors is not sufficient to pay all such demands within sixty days from date of notice, one-half of its receipts shall thereafter be applied to the liquida-; tion of the claims of withdrawing members until all deferred claims- are paid.
“Any association may permit a member to withdraw part of the accumulation to his credit without thereby reducing the. number of shares, held by him.”

On February 10, 1930, judgment was rendered dismissing this rule, and plaintiff has appealed.

A brief resume of the facts may assist in arriving at a clear understanding of the controverted question.

On July 10, 1929, plaintiff, Dyer, seized in the hands of garnishee, Reliance Homestead Association, all property in its possession belonging to defendant, Dodge.

At that time Dodge was indebted to garnishee in the sum of $800 on a note, which had matured on May 31, 1929. This note was secured by pledge of ten shares of stock of Reliance Homestead Association, a homestead association being permitted, under the law of this state, to make a loan secured by pledge of its own stock.

Plaintiff contends that at the time of the seizure the homestead should have compensated its debt to Dodge, represented by the ten shares of stock standing in Dodge’s name, with Dodge’s debt to it, represented by the note, and that such a course' on its part would have left a cash balance in Dodge’s favor amounting to $200, which $200 should have been surrendered to the sheriff.

The homestead, on the other hand, contends that the debt represented by the stock owned by Dodge was not at that time due and demandable, since, under section 7 of Act No. 120 of 1902, as amended by Act No. 280 of 1916, withdrawals of homestead stock are not due when demanded, but only in the order in which such withdrawal notices are received and listed by the homestead association, and that, thus, the debt due to Dodge is not compensable against the already matured debt due by Dodge.

Article 2209 of our Civil Code supports the contention of garnishee. This article ¡reads as follows:

“Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things, of one and the samg kind, and which are equally liquidated and demandable.
“The days of grace are no obstacle to th<¿ compensation.”

We have no way of knowing from the record whether this homestead was behind in honoring its requests for withdrawals,' but, whether it was or not, the seizure in its hands of any equity due to Dodge could have no other effect that to constitute a notice of withdrawal, and as of that day, to-wit, July 10, 1929, it should have entered on its register of notices of withdrawals what amounted in law tq a request of Dodge for withdrawal of his stock.

At that time Dodge himself could have surrendered his stock and obtained payment therefor only when his turn was reached on the register of withdrawals. Surely neither the seizing creditor nor the homestead can be given greater rights than Dodge himself had. Other stockholders are interested; other withdrawals may be on the waiting list. To permit Dodge, because he owed the homestead money, to receive his payment ahead of others who may be on the waiting list, would be manifestly unfair to those cithers who owed the homestead nothing. In such a situation, if a homestead association be in such condition that its stock is not worth “par,” to permit the unmatured obligation to be offset in full against the matured obligation would give to Dodge an unfair advantage over other stockholders.

It is said by plaintiff that deposits- with homestead associations are and should be treated as cash, and that this has been so decided by this court and by the Supreme Court. Succession of D’Anna, 6 La. App. 142; Dimitry v. Shreveport Mutual Building Association, 167 La. 875, 120 So. 581. In Succession of D’Anna, the question under consideration was in no way similar to that now before us. There an administratrix demanded that a homestead association pay in cash for stock standing on its books in the name of decedent. The homestead contended that it could not be required to take up its own stock, but that it should be sold in the open market. We held that stock in a homestead is equivalent to a deposit in the sense that a holder of the stock may, at any time, apply for the withdrawal of the deposit by surrendering his stock, but we also held that he may receive his money only when his, turn is reached on the withdrawal list. In Dimitry v. Shreveport Mutual Building Association, supra, the Supreme Court held that stock in a homestead is analogous to cash on deposit in the sense that the holder may surrender his stock and demand his, deposit, but there, again, the court said, just as we did in Succession of D’Anna, that the stockholder may receive his money only when his turn is reached on the withdrawal register of the homestead association.

The two cases are, therefore, authority for the fact that a depositor in a homestead cannot demand the immediate repayment of his deposits, but must make application for withdrawal and then await his turn. Until his turn is reached, the debt due him -is not demandable in the sense contemplated by article 2209 of the Civil Code.

Thus the amount due Dodge by the homestead was not equally demandable with that due by him to the homestead.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is-, annulled, avoided, and reversed, and that there now be judgment condemning Reliance Homestead Association to enter on its withdrawal list as of July 10, 1929, notice of withdrawal of the ten shares of stock standing in the name of William R. Dodge, and to pay to the civil sheriff for account of the seizing creditor the balance which may be due to Dodge, when, in its regular order, the stock of Dodge is, or may have been, reached for retirement, after deducting from the proceeds of the said stock such amount as may at that time be or have been due it on Dodge’s note in principal and interest. Costs of both courts to be paid by defendant in rule and appellee.

WESTERFIELD, J.

(dissenting). I cannot agree with that portion of the decree which allows interest on the loan due the homestead after the day of the service of the notice of seizure. I therefore respectfully dissent.


text:
    No. 13,451
    Orleans
    BRIM v. HOME ACCIDENT INS. CO.
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.]
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Norman, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellant.
    Beard & O’Keefe, and Alvin R. Christovich, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff has appealed from a judgment dismissing her suit for compensation for the death of her son, alleged to have been caused by an accident occurring in the course of and arising out of his employment. The suit was brought directly against the Home Accident Insurance Company, which had underwritten the liability of the Gratia Distilleries, Inc., with respect to compensation due its employees, under the authority of Act No. 85 of 1926. It is alleged that there is due plaintiff 32% per cent of $21, the weekly wage of her deceased son, for a period of 300 weeks, plus $150 for funeral expenses. The defendant originally denied that Ryan had suffered an accident in the course of his employment, but, apparently, has yielded that contention, as it might well do in view of the evidence in the record, particularly that to the effect that compensation was paid Ryan aggregating $81.90.

The defense now relied upon consists in a denial that Ryan’s death had anything to do with his, injuries. In other words, it is insisted that he died of natural causes.

It appears from the testimony in the record that on October 15, 1928, about 9:30 o’clock p. m., Ryan fell from a ladder to the floor of the sterilizing room of the distillery of his employer. He arose and approached a Mr. Robert White, described as a United States warehouse agent, stationed at the Gratia Distillery in another part of the building. He appeared to be very much dazed, was bleeding from a wound above his left eye, and was unable, at first, to express himself clearly. After regaining his composure he stated the cause of his injury and was conveyed to the Charity Hospital in an ambulance, where his lacerated wound was sutured, and, since he refused to remain in the hospital, was instructed to go to the out-patient clinic for further treatment. He did not return to the hospital or the clinic, but was. subsequently treated by Drs. Christman and Bradburn on behalf of his employer, who paid him compensation up to November 22, 1928, when he was discharged as cured. Following his discharge by Drs. Christman and Bradburn, he called on Dr. Herman Gessner, complaining of weak and dizzy spells. He was. treated by Dr. Gessner until December 31, 1928, when he was discharged by that physician. Ryan does not appear to have consulted any other physician, and, on March 10, 1929, was found dead in his room. An autopsy was performed by the coroner, and that official issued a certificate that the cause of death was “eerebella abscess with necrosis of the left hemisphere. Multiple areas of necrosis on surface of cerebrum; and calloso marginal fissure of each lateral hemisphere. Sub-aracnoid general congestion with oedema of brain. Smear negative for bacteria.” Due to the fact that a medicine bottle was found in Ryan’s room with Dr. Gessner’s name on it, he was notified of the death and was present by invitation at the autopsy. At Dr. Gessner’s request a section of the cerebellum was given to him and by him given to Dr. J. A. Lanford, an expert pathologist, who made a microscopical examination of the specimen and reported, as a result of - his findings, that the deceased died of tubercular meningitis, or multiple tuberculoma. Ryan appears to have been in good health prior to the accident and to have grown progressively worse after the accident. There is some doubt as to whether he returned to work in the interval between his fall and his death, but we are convinced that, if he did, it was not for more than a day or two, or merely sufficient to demonstrate his inability to continue.

The question before us is whether Ryan’s death was due to or contributed to by the accident. As has been seen, nearly five months elapsed between the date of his fall and the day on which he was found dead in his room. It is the present contention of counsel for plaintiff that the fall had the efffect of activating a dormant disease, tuberculosis, and hastening Ryan's death, entitling his dependent to recover under the well-known jurisprudence of this and other states. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Bradbury’s Workmen’s Compensation, Third Edition, 326. We say present contention because it was originally claimed that the fall was the direct cause of Ryan’s death. However, since this is a suit in compensation, the strict rules of pleading are to be relaxed. Act No. 85 of 1926, p. 122, sec. 18, par. 4. The question presented is most difficult of solution, involving, as it does, the appreciation of medical testimony, upon which we must mainly rely in cases of this character. Landry v. Phoenix Utility Co., 14 La. App. 334, 124 So. 623. We realize that medicine like law is not an •exact science and that it is in the heat of controversial disputation that its beneficent truths are forged. We owe much to that noble profession whose remarkable achievements have lengthened our days and lightened our hearts, but, in the nature of things, much remains to be discovered of the mysterious processes of life and of the cause of death and dissolution, and so it is that not one of the eminent physicians, who testified in this case, was able to say, with any confidence, exactly what caused Ryan’s death; whether trauma or the tuberculosis, singly, or in conjunction. Dr. Johns, for example, who, with the coroner, Dr. Roeling, testified in plaintiff’s behalf, expressed the opinion that the accident was a contributing cause based upon his knowledge of certain uneontroverted medical theories. Dr. Lanford, who, with Dr. Gessner, supported defendant’s contention, was of the opinion that the tuberculosis alone caused Ryan’s death, giving equally substantial reasons for his conclusion, but neither he r.or Dr. Gessner would say that the trauma could not have been a factor in the result. Tuberculoma of the brain, it is agreed by all physicians, is the result of a secondary infection, the primary source of the disease being elsewhere in the body. In other words, tubercular bacilli do not primarily affect the brain, but are' carried there from some other focus, or foci of infection by the blood stream. Dr. Johns is of the opinion that the trauma, or the blow on Ryan’s head, produced a situation most favorable to a secondary infection, for the reason that the ’trauma had damaged the tissue and rendered it more susceptible to tabercular infection than normal healthy tissue. In this view he testified he was fortified by the opinion of three of the leading pathologists whose works he had consulted preparatory to his appearance in the case as a witness. The report of the coroner, as well as that of Dr. Lanford, indicated an abscessed condition of the brain. This abscess was located in the back of the skull, whereas the injury which Ryan received was in the frontal portion. Dr. Johns explains that the effect of traumatic injury to the frontal portion of the brain is more likely to produce hemorrhage on the opposite side than in the immediate vicinity of the blow. The post mortem examination disclosed no evidence of hemorrhage, and this fact, it is claimed, precludes the idea of any serious traumatic injury to the skull. Referring to this finding by Dr. Lanford, Dr. Johns, explains, and it is not controverted by other medical testimony, that after five months, the period which elapsed between the accident and the death of Ryan, “the encroachment of the abscess would have liquified the blood, transformed it all into exudate, so that it would not be recognizable as blood.” The fact that five months elapsed between the time of the fall and the death of ftyan is also said to seriously weaken plaintiff’s contention that the accident was a contributing cause of Ryan’s death, but here, again, Dr. Johns informs us that “it would be entirely compatible with the usual history of brain abscesses for a man to live that long with tubercular abscess.”

Dr. Roeling, the coroner who performed the autopsy and whose original finding to the effect that the cause of death was disassociated with the tubercular infection, conducted only what is called a “gross examination,” without the aid of a microscope, and was evidently in error. Dr. Lanford, whose reputation as an eminent pathologist clearly appears from the record, made a most careful examination of the segment of the brain submitted to him and is the only one of the physicians who did. Both Dr. Gessner and Dr. Johns testified upon the reports of Dr. Roeling and Dr. Lanford. However, we do not believe Dr. Johns to have been at a disadvantage in that respect, since he has accepted Dr. Lanford’s report at face value and has made his deductions therefrom. It is only in the conclusion which Dr. Lanford reached that he differs from Dr. Johns, and then only to the extent that necrosis, or abscess of the brain, had more the appearance of having been induced by specific organism than by contusion, or trauma. Dr. Lanford, however, was frank enough to say that necrosis due to trauma differed only minutely from a similar condition due solely to bacterial action. Dr. Gessner, when asked whether the tuberculoma was in any respect due to the accident replied:

“I cannot say that it is impossible for it to have produced a tuberculoma, but judging from the usual long period of tuberculosis processes, I think that his tubérculo? sis disease preceded his injury.’’

He also expressed the opinion that the tuberculoma of the brain would' have caused his death eventually, independent of the accident. When asked whether, conceding the presence of tubercular infection in the brain, the trauma would activate its destructive process so as to cause earlier death, Dr. Gessner replied that it was possible, and finally, in reply to further questioning on the subject, answered that it was “theoretical, yes, sir; we have to admit that.” In this connection the language of Chief Justice O’Niell, in speaking of a similar situation in Behan v. John B. Honor Co., supra, is interesting:

“The proof goes no further, in support of the defense of this suit, than to show that the plaintiff might, and perhaps would, at some time, have become disabled by the disease that was lurking in his system, even if the accident complained of had not happened. And that is not much more o£ a defense than to say that every man must some day come to the end of his worldly career, accident or no accident.”

In the case of Weller v. Turnerized Roofing Co., 14 La. App. 150, 129 So. 443, a similar situation was presented. There, as. here, the opinion of the medical experts differed upon the proposition as to whether the trauma had been a contributing cause of death, but all agreed that it might have had much to do with the development of pneumonia, from which the plaintiff in that case died. Upon the authority of well-recognized medical theories to the effect that pneumonia resulted from the increased activity of the pneumococci germs due to a lowered bodily resistance and Increased susceptibility to infection, which could be due to violent physical shock, or trauma, we allowed recovery in the Weller case upon the ground that, though the expert testimony was apparently contradictory, it was in agreement upon the essential particulars when considered with reference to the lay testimony in the record, citing Colquette v. Louisiana Central Lumber Co., 11 La. App. 140, 119 So. 714. The lay evidence to which we referred was; to the effect that the injured plaintiff had enjoyed previous good health, which, after the accident, progressively declined, culminating fatally. In Fraze v. McClelland Co., 200 Iowa, 944, 205 N. W. 737, it was held that proof of absence of illness prior to injury and rapid development of tuberculosis thereafter, together with medical testimony to the effect that tuberculosis might be accelerated by traumatic causes, was sufficient to support a finding that tuberculosis was caused by the trauma. In Schlenker v. Garford Motor Truck Co., 183 App. Div. 166, 170 N. Y. S. 439, 441, it was held that medical testimony, to the effect that a trauma “Of the kind which the employee received could excite a dormant tubercular condition into activity and accelerate death,” in the absence of evidence to the contrary, was sufficient to support a recovery, notwithstanding evidence to the effect that no traumatic condition prevailed at the time of the death of the employee three weeks after the accident.

Our conclusion is. that the plaintiff is entitled to recover.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of Mrs. Bertha Brim, widow of Calvin Ryan, plaintiff, and against Home Accident Insurance Company, defendant, in the sum of $6.83 per week for a period of three hundred weeks beginning October 15, 1928, with interest at the rate of 5 per cent on each installment from its due date, until paid, and in addition thereto, the sum of $150 for funeral expenses and all costs, the whole subject to a credit of $81.90.

JANVIER, J.

(dissenting). I am unable to agree with the conclusion reached by my associates, because I am well convinced that the medical testimony clearly preponderates in favor of defendant’s contention that the traumatic injury had no causal connection with the subsequent death of the employee.

It is true that those doctors who are of the opinion that there was no causal connection between the injury and the death frankly admit that it is possible for traumatic injury to cause tuberculoma, but, in view of their statements that they are convinced that such was not the case here, it appears that, in order to hold defendant liable, there must be established the doctrine that the mere possibijity that the death of an employee resulted from traumatic injury received in the course of the employment renders the employer liable in compensation; that it is not even necessary to show any reasonable connection between the traumatic injury and the subsequent death, if it appears that, prior to the sustaining of the injury, the employee had always been in apparent good health, and thereafter had grown progressively weaker, until overtaken by death; or, to express it in a different way, no matter how greatly the opinions of the physicians may preponderate to the effect that there is no causal connection between the injury and the death in the particular case under consideration, there is liability if they admit that there is even the slightest possibility that in other similar situations death may result from similar injuries.

No such doctrine has been announced either here or elsewhere, and it is not in accordance with the firmly established jurisprudence to the effect that the plaintiff bears the burden of proving, with reasonable certainty, that the death was the result of the injury. In a compensation case in which the question of the cause of death was . under discussion, the Supreme Court of Louisiana said:

“A case must be made out to a legal certainty; this is elementary, and is as true in the case of a suit under the Workmen’s Compensation Act, like the present, as in any other. Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734.” Haddad v. Commercial Motor Truck Co., 150 La. 327, 346, 90 So. 666, 673.

In other words, then, the plaintiff should not recover if he can show only a remote, possible causal connection between the injury and the death. He must show, at least, great probability, and this by a preponderance of the evidence.

We have many times said that, in technical medical matters, we should be guided by the opinions, of medical experts. As we said in Landry v. Phoenix Utility Co., 14 La. App. 334, 124 So. 623, 624:

“We are not privileged to indulge our impressions in a matter so technical.”

We must be governed, if not entirely, at least to a very large extent, by the opinions of the doctors.

Those who hold to the theory that the traumatic injury had no causal connection with the death have the preponderance in their favor, and I feel, therefore, that that theory should be accepted. As. we also said in the Landry case:

“If we and our brother below have erred, the responsibility must rest with the medical profession and not the judiciary.”

I therefore respectfully dissent.


author: ELLIOTT, J.

text:
    No. 751
    First Circuit

    TICKFAW HOMEGROWERS’ ASSN. v. GALLODORO (Gallodoro, Intervener and Third Opponent)
    (March 3, 1931. Opinion and Decree.)
    J. J. Jackson, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendant, appellee, and intervener, third opponent.
   ELLIOTT, J.

Tickfaw Homegrowers’ Association, Inc., brought suit against Frank Gallodoro on notes, accounts, and claim for rent, amounting in the aggregate to $1,479.-21, with interest and attorney’s fees in addition thereon, and in connection with its said demand caused to be provisionally seized a strawberry crop alleged to belong to the defendant, situated on a farm called the “Spitale Place,” to pay that part of the demand alleged to be due on account of rent which the. plaintiff claims to have paid to Mrs. Spitale on account to the defendant, and caused to be sequestered a strawberry crop alleged to belong to defendant, situated on a farm called the “Home Place,” on account of necessary supplies alleged to have been furnished defendant for the purpose of making said crop.

Frank Gallodoro, defendant, acting for the use and benefit of his minor son Joe Gallodoro, intervened in the suit and opposed plaintiff’s claim and seizure of the crop on the Spitale place on the ground that this crop was the property of his son Joe.

Frank Gallodoro also appeared individually and for answer denied owing plaintiff the amount claimed against him, alleging credits due him which he had not received, that the crop on the Spitale place belonged to his son Joe, and that he had no interest in it.

Tickfaw Homegrowers’ Association, Inc., for answer to the petition of intervention and third opposition of Frank Gallodoro in behalf of his son Joe Gallodoro, alleged that the Spitale place had been, in fact, rented by Frank Gallodoro and that the crop thereon belonged, in fact, to him and not to his son Joe; that the claim set up by defendant for the use and benefit of his son Joe was a simulation, etc.; that defendant and intervener, acting under the guise of an agreement to pick and pack the berries on the Spitale place, had purposely destroyed and damaged a quantity of the berries.

There was a trial on these issues between the plaintiff and defendant individually and the defendant, acting in behalf of and for the use of his son Joe, intervener and third opponent, which resulted in a judgment in favor of Frank Gallodoro for the use and benefit of his son Joe, recognizing Joe Gallodoro as 'the owner of the crop of strawberries on the Spitale place, setting aside the provisional seizure which had been made of that crop; and there was further judgment in favor of Frank Gallodoro for the use and benefit of his son Joe and against TicHaw Homegrowers’ Association, Inc., for ?150 as damages on account of said seizure, subject to credit of his funds, in the hands of the sheriff until paid.

No judgment of any kind was rendered on the principal action between Tickfaw Homegrowers’ Association, Inc., and the defendant Frank Gallodoro.

The plaintiff appealed from the judgment in favor of Frank Gallodoro for the use and benefit of Joe Gallodoro, intervener and third opponent.

Neither plaintiff, defendant, nor intervener and third opponent has furnished us with a brief, although there is need for explanation.

A matter which we notice is that Frank Gallodoro, defendant, acted for himself against the plaintiff in the lower court, and at the same time acted against the plaintiff for and in behalf of his son Joe, but, as no conflict in interest appears between the defendant and his son Joe, this appears to be all right. But a matter not explained is the fact that Frank Gallodoro, acting in behalf of and for his son Joe, alleged in the motion to be a minor, appeared in this court and moved to dismiss the appeal taken by plaintiff on the ground that he had not been cited to answer the appeal.

Joe Gallodoro also appeared in person at the same time and filed an answer to the appeal praying that the judgment rendered in his behalf on his intervention and third opposition be amended by striking out the credit which the judgment allows against the $150 which the plaintiff was condemned to pay him, and as thus amended that it be affirmed.

The answer of Joe Gallodoro does not state that he has been emancipated and relieved of the time prescribed by law for reaching the age of majority, nor .that he has reached the age of majority. No explanation is offered as to the situation in regard to the appearance of Frank Gallodoro acting for intervener and third opponent, stating that he is a minor, and moving to dismiss, and this simultaneous appearance of intervener and third opponent himself, answering the appeal.

We assume that Joe Gallodoro has the capacity to appear in person, and, acting on this assumption, we find that his appearance and answer to the appeal praying that the judgment appealed from be amended, and, as thus amended, affirmed, operates as an abandonment of the motion of his father to dismiss.

The motion is ' therefore regarded as abandoned, but the situation is still unsatisfactory, due to the fact that no judgment of any kind was rendered on the principal action between the plaintiff and the defendant.

Under the law, Code of Practice, article 394, no authority exiáts for rendering a judgment on an intervention without at the same time acting on the principal action between plaintiff and defendant. See Dubroca v. Her Husband, 3 La. Ann. 331; Gorman v. Gorman, 158 La. 274, 103 So. 766; Seib v. Cooper, 170 La. 108, 127 So. 380.

This situation, however, is offset by the fact that the judgment on the intervention and third opposition is a final disposition of the case in so far as concerns the demand of intervener and third opponent against the plaintiff, and which the plaintiff has the right to have reviewed on appeal.

Passing now to the merits, we have given consideration to the evidence introduced on the trial, and we are unable to say that the court erred in recognizing Joe Gallodoro as. the lessee of the Spitale place and the owner of the strawberry crop thereon; nor do we find any ground for interfering with the damages allowed intervener and third opponent against the plaintiff.

Intervener and third opponent complains of the credit which the lower court allowed against the judgment for damages rendered in his favor against the plaintiff. We can see no reason why this credit should be allowed, and we think the court erred In making the allowance.

For these reasons that part of the judgment appealed from, which allows as a credit against the amount of damages recovered by intervener against the plaintiff, the funds, proceeds of intervener’s berry crop in the hands of the sheriff, against the damages awarded him against the plaintiff, is disallowed, and the said proceeds are decreed to belong to intervener.

As thus amended, the judgment appealed from is affirmed, plaintiff, and appellant to pay the costs in both courts.