text:
    No. 13,763.
    Mrs. K. L. Brigham et als. vs. C. Newton et al.
    Syllabus.
    When an attorney at law chooses to occupy tow'ards an inexperienced woman and her minor children, whilst holding the property of the latter in his possession, the triple relation of attorney, agent, and lender of money, he is bound to keep an intelligible account of his transactions with his clients, and can be permitted to derive no advantage from his failure to do so.
    APPEAL from the Sixth Judicial District Court, Parish of Ouachita. — Barksdale, J., Third Judicial District, acting for W. P. Potts, Judge of the Fifth Judicial District, recused.

      Stubbs & Bussell, for Plaintiffs, Appellees.

      C. Newton, Defendant and Appellant, in propria persona.

   The opinion of the court was delivered by

Monroe, J.

Upon the former hearing of this case, there was a judgment in favor of the plaintiffs, Mrs. K. L. Brigham, J. W. Saunders, and W. G. Saunders, and against the defendant, O. Newton (the other defendant having been eliminated), decreeing said plaintiffs to be the owners of the plantation sued for, and further, as follows, to-wit: “ That plaintiffs do have and recover from the defendant, the revenues “ thereof, from the date of his purchase, diminished by the taxes, value “ of useful improvements made by defendant, and by all payments or “ advances made by him to Mrs. Saunders, as tutrix, or to plaintiffs, “with interest thereon; the revenues of 1890, 1891 and 1892 being “fixed by the rent notes; that, to adjust the account the case be “remanded, and, in all other respects, the plaintiffs demand be re- “ jected, and that defendant pay costs.” Mrs. K. L. Brigham vs. C. Newton, 49 Ann. 1539.

Agreeably to this decree, there has been another hearing in the District Court, resulting in a judgment in favor of the plaintiffs, on their demands for rents and revenues, in the sum of $2145.36, “being balance due * * * January 1st, 1897, for rents from 1890 to 1896, inclusive, after deducting amount advanced plaintiffs’ mother, taxes for same years, repairs, etc. Said balance to bear interest at -5 per cent, from January 1st, 1897,” and for $300 as rent for each of the years 1897, 1898 and 1899, respectively (less taxes paid), with interest from January 1st of the year following that for which the rent was held to be due; and in favor of the defendant, on his demand in reconvention, against the heirs of J. W. Saunders for $1440, against Mrs. Brigham for $550.10, and against W. G. Saunders for $226.35, with interest at 5 per cent, upon said several amounts from January 1st, 1897. From this judgment the defendant has appealed, and he complains :

1. That said judgment does not conform to the decree rendered by this court, in that it fails to recognize that the revenues for 1890, 1891 and 1892, have been accounted for.
2. That should it be held that said judgment properly interprets the said decree, nevertheless, there was a settlement between the parties which included the rental for said years, and which should have been recognized by said judgment.
3. That, in any event, said judgment fails to credit the rent note of $750.00 for the year 1890, with $175.00 allowed for fencing, and fails to credit the rent note for 1892 with a discount of 10 per cent.
4. That the advances made by the defendant during the years 1889, 1890 and 1891, which were settled by the rents for the years mentioned, are ignored in ignoring the settlement which defendant claims to have been effected.
5. He claims, for advances, expenditures for improvements, compensation for services in looking after the property, fees, etc., a total of $8321.51, as against $4624.50 admitted to be due to the plaintiffs, or a balance in his favor of $3696.01.
6. He claims that the interest should have been calculated upon the various amounts of debit and credit from the dates of their disbursement, or collection, and that, as thus calculated, there is due him a balance of interest amounting to $1637.69.

I.

From the reading of the decree whereby the case was remanded, it appears that there was judgment for the plaintiffs for rents and revenues from the date of the defendant’s purchase of the plantation, diminished by the taxes paid, by the value of the useful improvements made thereon, and by the amount of the advances made by the defendant to Mrs. Saunders, as tutrix, or to the plaintiffs; “the revenues for 1890, 1891 and 1892 being fixed by the rent notes,” and that the case was remanded “to adjust the account.” There was no reservation with respect to any rent collected or advances made by the defendant.

II.

In support of the claim that there was a settlement with respect to the three years mentioned above, the defendant relies upon two documents, which appear to have been signed by Mrs. Saunders, tutrix, being “Exhibit 8,” which bears no date, and “Exhibit 104,” dated June 21st, 1892. These instruments are in the nature of receipts, which are open to explanation and contradiction, and it was so considered when the case was remanded.

III.

It is true that, upon the rent note for 1890, the lessees, Maguire and Brooks, were allowed a credit of $175 for improvements which they were to make upon the plantation. And it is possibly also true, that the defendant was authorized to discount, at 10 per cent., the rent note for 1892. He is, therefore, entitled to a credit of $250 on the $2250 represented by the three notes given for the rent for the years 1890, 1891 and 1892. But our investigation of the case has resulted in the conviction that the aggregate of the credits allowed to the defendant by the judgment of which he complains, exceeds the total to which he is entitled by an amount greater than all the credits which are said to have been omitted.

TV.

It is claimed, in effect, that, whilst holding him liable for said rent notes for the years 1890, 1891 and 1892, the judgment appealed from fails to credit him with the advances and disbursements made by him during those years and which, by virtue of the settlement which said judgment ignores, operated the extinguishment of his obligation with respect to said notes. But this claim does not appear to be supported by the fact. The judgment in question holds the defendant liable to the plaintiffs in the sum of “$2145.36, this being the balance due by him January 1st, 1897, for rents from 1890 to 1896, inclusive, after deducting amount advanced plaintiff’s mother, taxes for same years, repairs, etc., said balance to bear interest, etc.” The evidence shows that the amount of rent collected by the defendant, during the years mentioned, was $3950, from which it follows that in fixing $2145.36 as the balance due by him on account of such collection the judge a quo has credited the defendant with $1804.64 for advances, taxes and repairs, as stated in the judgment. That the amount thus deducted is not as large as the defendant thinks it should have been, is quite possible, but that is another matter.

V.

The defendant claims for advances, expenditures for improvements, fees, and compensation for services in looking after the property, the sum of $8321.51, as against $4624.50, which he admits to be due by him to the plaintiffs, or a balance in his favor of $3696.01.

It is necessary to a proper understanding of the particular questions which are to be considered, that the relative positions of the parties to this litigation, together with the circumstances which brought them into relation with each other, should be stated.

In the early part of 1889, Sidney W. Saunders, an uncle of the plaintiffs’ died, intestate, leaving an estate valued at something like $100,000. It seems to have been supposed that he was unmarried and childless, and his heirs at law, including the three plaintiffs, all of whom were then minors, represented by their mother, as natural tutrix, took steps to have themselves put in possession of his estate, which, as we understand it, was, mainly, in the parish of Ouachita. A person appeared, however, who claimed to be the widow in community of the decedent, and there was some litigation inaugurated in her behalf, successively, in the State and Federal courts. But a compromise was effected, without trial, and the heirs proceeded to partition the estate among themselves. The share received by the plaintiffs consisted of the plantation in controversy, appraised at $8000, together with cash and stock in several corporations to the amount of about $3000. The plaintiffs were quite poor, with limited education, and limited experience in business matters, and their mother, who was about as they were, employed the law firm, of which the defendant was a member, to attend to their interests in the succession and in the litigation which threatened it, and the business was taken in charge by the defendant, individually. In the autumn of 1889, acting on behalf of the tutrix, the defendant leased the plantation to McGuire and Brooks for Í890, 1891 and 1892, and took their three notes of $750 each, payable at the ends of the years 1890, 1891 and 1892, respectively, subject to a credit on the note for the rent of 1890 of $175; and his firm also came into possession of a certificate, belonging to the minors, for ten shares of the stock of the Consolidated Ice Company, the market value of which was not less than $1100. It is claimed by the defendant that the tutrix gave said firm a note for $300 for services to be rendered (upon the assumption that there would be no litigation) in the matter of putting the minors in possession, and affecting a partition. And the evidence shows that $200, or more, has been paid on that account. He also claims that she subsequently gave him a note for $1100 for services rendered and to be rendered in the matter of the claim set up on behalf of the alleged widow in community. And, in August, 1890, he caused the stock of the ice company to be sold, and it was bid in by his firm at $1100, and the proceeds appropriated to the payment of the note. This transaction was sustained by the former judgment of this court, and is out of the ease which we are now considering, except in so far as it constitutes one of a connected series of transactions, other transactions of which series present the issues to be here determined. The record fails to show that the defendant advanced any money whatever to the minors, or to their tutrix, during the year 1889. On the other hand, his firm held for collection, for account of Mrs. Saunders, individually, a claim against one E. Neuwirth, upon which they collected $750, out of which they seem to have made some payments by authority; and upon November 26, 1889, they accounted for the balance, and took a receipt, which reads as follows, to-wit:

“Nov. 26th, 1889.
“Received of Newton & Cason this day the amount collected by them for me from E. Neuwirth, in suit of H. J". Saunders vs. E. Neuwirth on judgment against E. Neuwirth.
“(Signed) Mrs. Harriet J. Saunders.”

The defendant was, at first, under the impression that no part of the amount collected had been retained by him or his firm, but, upon cross-examination, admitted that he might have retained $150. He is, however, particular to say that, if he did so, it was for money due him by Mrs. Saunders, individually.

In view of the ignorance and inexperience of his client and of the defendant’s uncertainty as to whether he retained any of the monev collected for her account, and, if so, how much, it must be admitted that the form of the receipt written by him leaves much to be desired. During the year 1890, up to July 5th, the defendant may possibly have advanced to the tutrix as much as $250, though the evidence on that subject is inconclusive. Assuming that he did so, he had in his hands the three rent notes, which were perfectly good, amounting (after deducting credit of $175) to $2075, and the certificate of stock which, if available for the payment of the amount claimed to be due him, as he made it very soon afterwards, could certainly have been made available at the date mentioned for the payment of taxes for which the plantation was advertised for sale.

The tutrix, however, brought him a notice which she had received, to the effect that the plantation would be sold July 5th, 1890, for the taxes of 1889, amounting to $121. She told him that she had $60 and that she needed $61 more in order to pay said taxes and prevent the sale, and she requested him to advance that amount. His version is that she asked him to pay the taxes, and that he answered: “I told her that “ I would not pay the taxes, but that the property would sell and I “ would buy it in at the sale; that, under the law, she would have the “ right to redeem that property within twelve months anyhow; that it “ was the only security I would have for the money which I had paid “ out, and I also told her that it might have the effect of relieving the “property from the restraining order which was then pending in the “ Federal court, and that, in the event the said action in the Federal “ court was sustained, I thought I could hold the property against any “ one until they paid the amount of the taxes that I had paid out.” “To this, Mrs. Saunders, as I thought, consented,” etc. And there is no doubt that she did, under the circumstances, consent that he should buy in the property and hold it for the owners. But in view of the fact that, upon the 7th day of August following, the defendant caused the stock of the ice company, then in his hands, to be sold in order to pay his fee in a litigation which had not been terminated, and of the fact that he is now claiming that he then held the rent notes as collateral security, and accounted for them in a settlement subsequently made with the tutrix upon June 21, 1892, for advances made by him up to that date; and of the further fact that he could have paid the taxes in the name of the owner and have obtained subrogation to the rights of the State with respect thereto, it is difficult to understand what he means by saying that it was necessary for him to buy the property of the minors, who were his clients, at tax sale, in order to secure himself with respect to money paid out for their account; and it is equally difficult to understand how, being a lawyer, he could have imagined that any such contrivance would screen the property from the pursuit of a litigant, represented by competent counsel, who had already brought an action claiming an interest in the same; since, situated as he was, there was nothing that he could be heard to say, except that he had bought the property with the consent of his clients and for their benefit.

Be all that as it may, the defendant became the adjudicatee of the plantation, took possession of and dealt with it as his own and, thereafter, he made advances to the owners, or for their account, until the aggregate amount claimed by him far exceeded anything that they were able to pay; for, in fact, they had no other property. And they thereupon brought this suit, with the result as stated in the beginning of this opinion. When the case was here before, more than a hundred exhibits, or vouchers, encumbered the record. They had been brought up in the original, because, in many cases, they were attacked upon the ground that they were not entirely genuine, and did not truly represent the transactions which they purported to represent.

About the most material difference which the case now presents is that out of the whole number of vouchers which were presumably here on the former hearing, thirty-six are, at present, missing. And although probably nothing could add to the confusion in which the defendant has involved his dealings with the plaintiffs, the circumstance mentioned has not tended, to simplify the investigation of those dealings. Nevertheless, as the plaintiffs have neither appealed nor prayed for any amendment of the judgment appealed from, and as, therefore, the only question which we are called upon to determine is whether the amount of said judgment, in so far as it is in favor of the defendant, should be increased, the facts which we find entangled in the record amply subserve- the purposes of the occasion.

It has been stated that the defendant entered into the business out of which this litigation arises as the attorney and counsellor of a widow, acting as the tutrix of her three minor children whose interests he was employed, and paid very liberally to protect. The eldest of these minors, John W. Saunders, attained majority in the fall of 1889, and was, thereafter, dealt with in person. He called himself a painter, by trade, had little education and less experience, and coming into an inheritance, appears to have been disposed to run through with it as rapidly as possible. It may be necessary to recur to his case, but, for the present, it suffices to say that the defendant claims that,by July 2,1891, he had advanced to him an amount not exceeding five hundred dollars (including the price of a buggy, with a pole and harness, which he let him have for $100). And that,upon that day,he obtained from him a transfer, or relinquishment, by notarial act, of his entire interest in the property which he had inherited from the uncle, and which, the defendant does not deny, was valued, at that time, at something like $3000. It is true that the defendant made further advances afterwards, and the learned judge ad hoc., laboring under the same difficulties with which we find ourselves confronted, since he did not try the case originally, has given judgment in favor of the defendant and against the heirs of J. W. Saunders (for the young man is now dead) in the sum of $1440, which amount, we understand, the defendant to claim, should be increased to $1740, plus $753.72 in the way of interest up to July 20, 1899.

But, leaving this for the present, the second of the minors, Kate, was married to C. P. Brigham in February, 1891, attained her majority in October, 1891, and became a widow sometime in 1892. Tip to the date of her marriage, and for a while after, the defendant appears to have dealt with her mother with respect to the advances charged to her account, as he did, also, with respect to the advances charged to the account of .Wesley, the youngest of the minors, who did not become of age until April, 1894.

From the defendant’s testimony it would appear that he had advanced to the tutrix, for the account of the two minors last above mentioned, up to October 17, 1890, $623.00, for which he took her note; that, upon November 3, 1890, he took another note, which included the first, for $763, and that, upon December 4, 1890, he took still another note, which included the second, for $819. It seems to have been the defendant’s general method of dealing, to include all previous obligations in the last one taken, and as all the notes which have been left in the record bear interest at 8 per cent, we are led to infer that the oftener he took a new note, the oftener he compounded the interest. As, for instance, in the note for $763, of November 3, 1890, there was included, as we understand it, the .accrued interest upon the note for $623 of October 7, 1890. So that the interest in that case was compounded at the end of seventeen days, and in the next case, at the end of thirty-one days.

The defendant claims to have advanced to the tutrix, for account of the two minors, Eate and Wesley, between December 4th and December 15th, 1890, the additional sum of $361.80, and to have taken her note for that amount upon the date last mentioned. He claims to have paid a doctor’s bill of $65 December 11th, 1890, for account of J. W. Saunders, who was then of age. He claims to have advanced to the tutrix $13.70 December 16, 1890, for which he took a note; and he claims to have advanced to the tutrix, between December 16th, 1890, and January 2, 1891, $426.50 for which he took a note. There are several peculiarities about these charges, viz: That the tutrix should have drawn $361.80 within a period of eleven days is inconsistent with the plaintiffs’ manner of living, with their testimony, with the defendant’s habit of making advances, which rarely exceeded $50 at a time; with his habit with regard to the taking of notes, and with, everything, including his own acts and some of his statements, which the record discloses. The doctor’s bill, paid for account of J. W. Saunders, who was then a major, ought to have been, and probably was, charged to him and not to his minor brother and sister, who were not liable for it. But, being charged to them, there can be no reason to doubt that, like other advances so made, it was included in some note subsequently given by the tutrix. The remarks concerning the note for $361.80, dated December 15, 1890, are equally applicable to the note for $426.50 dated January 2, 1891, except that, about- that time, the tutrix obtained, in orders for merchandise and money, probably $150 more than she would otherwise have obtained for the purpose of providing a trousseau for her daughter who was married in February, 1891. And,’ finally, it will be observed that these different amounts, including the note for $819, dated December 4, 1890, make a total of $1685; and yet, upon March 2, 1892, the defendant took from the tutrix a note with a confession of judgment, and claims to have obtained judgment thereon, by virtue of the confession, against the maker, as tutrix of the minors, Kate and Wesley, for $984, although Kate had been married in February, 1891, and had attained her majority in October of that year, and the defendant has failed to refer us to the law by virtue of which a tutrix is authorized to confess judgment in the name of her ward. It may be remarked here that the note and judgment for $984, with certain notes, or vouchers attached, was filed in evidence on the original trial, as “Exhibit No. 23,” but is now missing from the record, and the other notes mentioned, if ever filed, are also missing. Turning, however, to the testimony of Mrs. Saunders, we find the following, to-wit: “Q. What was the note dated January 19, 1891, attached to “Exhibit No. 23,” and being for $480 given for ? (Objected to by defendant for the reason that the noté inquired of is embodied in a confession of judgment, which judgment was signed, March 14, 1892, by the judge of the * Sixth Judicial District Court of Morehouse, and the consideration of said note cannot now be inquired into — inadmissible under the allegations of the petition. Objection overruled. Defendant excepts, etc., etc.) A. It was brought over to the 1891 rent note. Q. What do you mean by that ? A. It was given to cover all little notes for 1890. Q. Was that the entire amount that you had gotten from Mr. Newton, or, was it a balance claimed by him after being credited with the rent of 1890? A. I don’t know that it was the entire amount? Q. What became of the rent of 1890? A. I received the money for the rent note of 1890. Q. When? A. At the close of 1890. Q. How? A. I had been getting money from Mr. Newton. Q. What did you do at the close of 1890 with reference to the rent of that year? (Objected to, and objection overruled), A. I gave Mr. Newton this $480 note. This testimony is almost unintelligible, and serves, for that reason, to show the utter ignorance and business incapacity of the witness. But it also shows that there was a note for $480, dated January 19, 1891, which she had given to the defendant at that date. So that it would appear, according to defendant’s version, that upon December 4, 1890, she gave him a note for $819; upon December 15, 1890, a note for $361.80; upon December 16, 1890, a note for $13.70; upon January 2, 1891, a note for $426.50, and upon January 19, 1893, a note for $480. And, yet, throughout this whole record, it is manifest that all the money advanced by the defendant was advanced in driblets, usually $10 and $15, up to $50, with, possibly, one or two exceptions, when as much as $100 may have been advanced, though it is doubtful if there is a well authenticated instance of that kind. And, even where as much as $50 was advanced to any one of the plaintiffs, it was usually partly in money and partly in orders for merchandise, the largest check among the exhibits on file calling for only $40. Under these circumstances, we should be at a loss, upon this branch of the case, for a reason for holding that the defendant advanced more than $984 to the tutrix, prior to March 2, 1892, and we assent to that figure, not because of the note, or confession, to which we attach no importance, but because, from all the testimony and facts, taken together, it seems reasonably' certain that she received that much money. As an original question, we should hestitate to apportion this amount equally between the two minors, but, as they are not complaining of the judgment, from which the plaintiff, alone, has appealed, and as we find no reason for increasing the amount allowed him, as to either of them, the question of their relative liability with respect to any particular item charged against them both, is a matter of no importance, since no change can be made in the judgment in that respect.

Starting, then, with the $984, as the total indebtedness contracted by their tutrix upon their account, up to March 2, 1892, we are to add the debts contracted by Mrs. Brigham in her own behalf and by the tutrix on behalf of the minor, Wesley, after that date.

Mrs. Brigham.

The defendant charges Mrs. Brigham with $1112, including the sum of $492, which represents one-half of the amount of the note and alleged confession of the tutrix, of March 2, 1892. Among the items which go to make up the sum thus charged, the following are worthy of attention, to-wit:

He charges her with a note of $40, dated December 10,1891, and the ■evidence shows that she gave such a note, which we find in the record as “Exhibit 102.” But the evidence also shows that she received for this note a cheek for $40, which we also find in the record, as “Exhibit No. 40,” dated December 11, 1891, and which appears in the defendant’s account as a separate charge. So that, in these two items she is charged $80 for $40 which she received. But this is by no means all. Upon June 19, 1893, the defendant addressed to the plaintiff the following letter, to-wit:
Monroe, La., June 19, 1893.
“Mrs. Kate L. Brigham—
“Dr. Mdme. — I send you note to sign for money you want. Will try and get you, say, $50 now, and will try and spare you some after a while. Will include all your notes, with this, in one, as I do not want so many notes. Sign where designated and return to me, and I will return other notes. (Signed) O. Newton.”

Enclosed in this letter was a note which, in its present shape, reads as follows (being “Exhibit No. 38.”)

“Bastrop, La., June 20, 1893.
“One day after date I promise to pay C. Newton or order the sum of two hundred and ninety-five dollars, with 8 per cent, interest from date, for moneys received of him, and I hereby accept service of petition, waive citation and legal delay, and confess judgment in favor of C. Newton for said amount, interest and costs.
“(Signed) Katie Brigham."

The plaintiff signed this note, and delivered it to the defendant, though she denies, under oath, that the waiver and confession of judgment were incorporated in it at that time, or at any. time, with her knowledge or consent. But the defendant did not return to her the notes previously signed, among which was the note for $40, dated December 10, 1891. And the note for $295, as also the note for $40, as also the check in consideration of which the note for $40 was given, all appear, as separate items, making up the total of his claim against this plaintiff for $1172. Nor is this all. It will be observed that the defendant writes, June 20, 1893, “will try and get you, say, $50, now,” etc. Agreeably to that promise, upon June 26th, he wrote to her as follows (“Exhibit 0-3.”)

“Mrs. Kate L. Brigham—
“Dr. Mdme. — I send you cheek for $25. Will send you balance of $25 as soon as I can get hold of some money.
“Yours respectfully,
D. Newton.”

This cheek the plaintiff received, but, there being a delay as to the remaining $25, she wrote, July 6, 1893, as follows: (the quotation being literal,)

“Bastrop, La., July 6, 1893.
“Mr. O. Newton—
“Kind Sir. — I received your note, and the check for $25, and your promise for the other $25. You did not mention the fifty dollars that I ask you for. You sent me a note to sign for what money I wanted, and you would return the fifty dollar note. I signed for one hundred dollars, if you can send it, please send it as soon as possible and return the fifty dollar note if you can’t let me have it let me know and send the note for $100 back to me and send me the $25 I am owing all of it hate to bother you so much. Eespectfully,
“(Signed) Katie Brigham."

It is not easy to understand this letter, but, it may be remarked that whilst the plaintiff acknowledged her signature to the note for $295, she appears to have been, always, under the impression that she had signed a note for $100. However that may be; upon July 24, following the above, the defendant wrote:

“Monroe, La., July 24, 1893.
“Mrs. Kate L. Brigham — •
“Dr. Mdme.- — I enclose you check for bal. $50 promised you. The check is for $25. I sent you $25 before. Hope yoú and family are well.
Very respectfully,
“(Signed) O. Newton.”

The plaintiff thus received the $50 promised in the letter of June 19th, and which was to have been included in the note enclosed in that letter. And she is now charged with the two checks, making up that amount, as separate items, in addition to the $295 of which -they were to have constituted a part.

And so, upon September 1, 1893, she gave a note for $50, for which she received a check for $10, an order on Wolff for $10, in merchandise, and an order on Leopold for $30, in merchandise. She is now charged with the note, and also with the check and the order on Wolff, though the order on Leopold appears to have been overlooked. There are other instances of a similar character, in fact, there are so many of them running through the defendant’s entire transactions with the plaintiffs and their tutrix that it is a question whether they constitute the rule or the exception. But, whilst all men are liable to commit errors, and the defendant, as we thus see, has committed many, we have yet to find one, committed to his own, financial, prejudice. And it was an account made up in this way that the plaintiffs were required to settle as a condition precedent to the restoration of their property, which their legal adviser and agent had bought at a tax sale, whilst holding available assets, belonging to them, many times greater in value than the amount of the tax for which the sale was made. Our conclusion as to Mrs. Brigham’s account is, that she, probably, owes the defendant $830, including the $492, representing one-half of the amount of the note of the tutrix of March 2, 1892, and also including a judgment obtained by Baer Bros., for $45.10, of which the defendant became the transferree in April, 1892.

As to the account of Wesley Saunders, and of John W. Saunders, we might, by the same process, demonstrate that the defendant has already been allowed, by the judgment of which he alone complains, an amojint, in excess of that to which he is entitled, sufficient to compensate any error in said judgment, to his disadvantage. And, equally is this the case with respect to his claim for improvements, and with respect to any other claims which he sets up.”

It was the duty of the defendant, who chose to occupy, towards a comparatively helpless woman and her children, the triple relation of attorney, agent, and money lender, whilst holding possession of their property, to keep an intelligible account of his transactions, and he can be permitted to derive no advantage from his failure so to do. As the matter stands, and as far as we are able to judge, the case is one which, as presented, no human being could determine with any degree of assurance that his decision would be in exact accordance with the facts. And we are satisfied that our learned brother, from whose judgment the appeal is taken, has given it the most careful and conscientious consideration, and has reached a conclusion from which, as to its general results, we should not, even had the plaintiffs appealed, have materially differed.

Judgment affirmed.

Provosty, J., takes no part.

Eehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 14,007.
    Charles B. Maginnis vs. Police Jury of Terrebonne.
    Syllabus.
    The proceedings in matter of laying out a public road were regularly conducted. The committee of freeholders, duly appointed and duly qualified, designated the course of the road. Their report was approved by the Police Jury, and the amount of damages found was provided for by ordering warrants to issue for the same. The report and the approval of the Police Jury, and the facts bearing upon the point urged, do not show that the committee of freeholders had failed to lay out a road to the extent that this committee had been directed to act.
    The value fixed for damages incurred is sworn to as correct by a number of witnesses. This testimony, and the weight due to the report of the freeholders who reside in the neighborhood, sustain defendant’s position regarding the value of the property.

      Tile proposed route is the shortest and the most direct and, from the testimony, less expensive, and will cause less damage than the others indicated.
    APPEAL from the Twentieth Judicial District, Parish of Terrebonne. — Caillouetj J.

      Suthon & Wallis, for Plaintiff, Appellant.

      W. P. Martin, District Attorney (Charles W. DeRoy, of Counsel), for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff objects to the action of the defendant in seeking to locate a public road over his land, and, in addition, if the proceedings in expropriation be held legal, he then complains of the damages assessed as being insufficient.

Plaintiff owns a plantation railroad and steam locomotives, the operations of which he fears will be interfered with if the road defendant seeks to have opened be located as proposed, as it runs along bis railroad track and crosses it at four different places along the line. He further avers that fences will have to be constructed along both sides of the road and other expenses will have to be incurred, for which the amount voted to be paid is not just and adequate compensation.

Defendant joined issue with plaintiff and urged that the requirements of the law have been closely observed; that the appointment of the committee of freeholders to locate the road and assess damages was made in due form; that the members of this committee duly qualified and fixed damages in an amount sufficient; that the police jury accepted their report, and gave it approval and appropriated one thousand dollars to pay plaintiff, that being the amount assessed by the committee ; and the" defendant proposed to issue warrants for the amount in favor of the owners of the plantation on which the road in question is located. The judge of the District Court wrote an elaborate and well considered opinion.

The judgment is for defendant on all the points raised. It decrees that the action of the jury of freeholders is legal, also the proceedings of the police jury, under whose authority the jury of freeholders acted, and decrees further that the road be opened as a public road upon the police jury paying to the owners of the Aragon plantation, on which the road is located, the amount assessed by the freeholders.

We have every reason to conclude that the inhabitants for whose use it is proposed to open the road in question, are entitled to a road leading from their settlement to the principal thoroughfare along the Bayou Terrebonne. These inhabitants are settlers on small farms at some distance from the general public road. Between their settlement and the public road there are plantations. This settlement is without a road to the parish seat above and is equally cut off from their post-office and church at the small place in Terrebonne known as Montegut. At this place there are a physician, a store, and medicine. The cemetery is near the place, and it is there that the people of the settlement bury their- dead. Here they attend church and get their mail.

The purposes of the police jury was to open a road for these settlers. They number about three hundred. The number of the families is about seventy. There is no opposition to the opening of a road. All concerned seem to Tecognize the reasonableness and even necessity of laying out a road for the little settlement connecting the Pointe-aux-Chiens (the not very euphonious name of the locality) with other roads and places. Locating the road has given rise to the most important issue.

Plaintiff, in the pleadings and as a witness, suggests other roads equally as convenient and favorable to the settlement, and less damaging to his own interests. Plaintiff apprehends that by opening a road along his plantation railroad, it will be necessary to remove the railroad and to construct a new bed. Plaintiff’s plantation railroad leads from the Bayou Terrebonne to the Bayou-aux-Chiens, and it is along this road-bed that defendant proposes to locate the road.

In view of this apprehension, we have given close attention to the testimony regarding the other roads suggested by plaintiff. Any of these would he more expensive, and the laying out of the road attended with much greater difficulty. The line proposed for the road above plaintiff’s place would be much longer, and that below would be through marsh or prairie tremblante, not easily to be drained or redeemed.

We imagine that after this road will have been opened, these neighbors will agree upon a modus vivendi that will enable plaintiff to let his plantation railroad remain where it is and the citizens of P-ointe-aux-Ghiens to .pass over this road without injury to themselves or their neighbor.

The committee of freeholders, in their report to the police jury, state that this road is the same which was a private road running- through Aragon plantation for a number of years, and which was used by the inhabitants in coming from, and going to, Pointe-aux-Chiens settlement; that this road will be of great use and advantage to the inhabitants of the locality, and less damaging than any other if selected. This report is sustained by the weight of the testimony. From this report and the testimony of witnesses, we are disposed to believe that if a change were to be made in the course of the road, even greater difficulties in the construction of the road-bed and in claims for damages would have to be met.

The decision in Gross vs. Police Jury, 7th Rob. 121, involved questions very similar to those before us for decision. We can reiterate that which was said in those days, that “supervisory power as to the course of the road, we think, ought to be cautiously exercised, as it will most generally involve questions not judicial, but of police, and the proceedings of the jury of freeholders and the police jury should be sustained unless manifestly unjust.”

Owners at first nearly always look with some disfavor upon the laying of a public road through their premises. It is a natural feeling. The reasons prompting them are worthy of the most qareful consideration. For it is their own. But the law steps in at times and requires them to yield their rights to public necessity. C. C. 2626. We have seen that' the necessity and utility of the road is undeniable. As a general rule the most direct course should be selected. One of the routes suggested by plaintiff is through low and undrained places unfavorable to the purpose intended, and the others present the possibility of meeting with many difficulties and of having to pay considerable damages.

Counsel for plaintiff confidently refers to the testimony of Mr. Cage, one of the witnesses and a prominent resident of the parish, to which we attach importance. In his view, another road than the one selected would be a better road. That may be. Still we cannot overlook the fact that in the course of his testimony the witness said (we quote from the testimony) :

“Q. How far would the inhabitants of Pointe-aux-Chiens have to go to reach Montegut by following the Pointe-aux-Chiena ridge ?
“A. Taking the settlement as a start, it would be eight or nine miles.
“Q. How far would they have to go by coming across Aragon plantation ?
“A. Possibly half that distance.”

This difference is, of itself, enough to justify, as we think, the selection made, particularly in view of the fact, as we take it, that the testimony does not show that the road to which Mr. Gage refers would cost less. We have copied from the testimony of this witness as above. We do not insert a summary of all the testimony of other witnesses sustaining the view, as we think that the other routes pointed out and shown by plaintiff would not serve the public equally as well. Perhaps they would cause less damage to Aragon plantation, but this is not the only test, unless it is made to appear that a hardship had been imposed and that a legal right had been violated by laying this road as intended.

We insert an excerpt from the testimony of Mr. Jolet, a surveyor.

“Ans. I think where the road is to-day is the only place where a road can be practically made. If you were to go below there, or above there, you would strike the marsh; when you get midway between Bayou Terrebonne and Bayou Pointe-aux-Ohiens, the ridge is very narrow.”

Again, at another time, while testifying:

“According to my recollection the road now existing evidently was built on the highest portion of the ridge from one bayou to the other, and that receding either southward or northward of this road, one would encounter more difficulty in building another road.”

Plaintiff’s able counsel specially calls into .question the legality of the ordinance because the compensation is not just and adequate, and because the ordinance does not comply with the report of the jury cf freeholders. We propose to take up these two grounds of attack in their inverse order.

The objection that the ordinance does not comply with the report of the jury of freeholders is based upon the fact that the freeholders reported that they had located the road along the right bank of Bayou Pointe-aux-Ohiens to the place of Mrs. John Neal, while the police jury ordinance approving the report had in view a connecting road between the Bayou Terrebonne and Bayou Pointe-aux-Ohiens. Defendant, in its pleadings, sets forth that the road, from the head of Bayou Pointe-aux-Ohiens, has been opened some years and we infer that further expropriation is not necessary to the settlement in question, as they have roads leading to the proposed road.

With reference to the inadequacy of the compensation, from the plaintiff’s point of view, the amount allowed is small. On the other hand, the weight of the testimony for the defendant shows that the amount is large enough for the permanent use of the road. The amount is to be paid before opening the road. This disposes of the complaint that defendant will open the road before paying the amount in question.

The judgment decrees that payment be made before taking the property for public use, and enforces the provision of the Constitution.

For these reasons, the judgment appealed from is affirmed.

Rehearing refused.


author: Provosty, J.

text:
    No. 13,655.
    Succession of John J. Gragard, Edward Pierson, Administrator, vs. Metropolitan Bank.
    Syllabus.
    1. The administrator of the succession of a bailee is entitled to continue the possession of his decedent, and has an action to revendicate this possession as against a mere trespasser.
    2. While a pledgor may not contest the validity of a pledge for want of delivery, his administrator, in case the succession is insolvent, may; the administrator being the representative not of the decedent, but of the creditors of the succession, whose right to contest such pledge cannot be denied.
    3. Under the law of Louisiana a warehouse receipt is not the ordinary warehouse receipt of commerce, but is a technical instrument governed both as to its Issuance and as to the manner of its pledge by statute; and a material departure from the provisions of this statute, either in the form in which the warehouse receipt is issued, or in the manner in which it is given in pledge, is fatal to the validity of the pledge of such a warehouse receipt.
    4. A warehouse receipt in the form prescribed by Act 72 of 1876 may stand for the goods themselves, in such way that its delivery will operate a delivery of the goods ; but in order that this should be, the receipt must represent specific goods, or, at any rate, must represent a specific part of a uniform mass; a lot of cotton bales cannot be treated as a uniform mass, it being possible that there should be between the component bales a material dis parity.
    5. Delivery is essential to the validity of a pledge.
    6. ' In ascertaining the rank of creditors on the property of the decedent, the legal situation is to be taken as it was_ at the moment of the death.
    7. Considering that the cotton in controversy was being held to await better prices, and that the defendant took possession of said cotton and sold it without right, the defendant is made to account for the value of said cotton not at the price at which the cotton was sold, but at the market price which obtained a few months after the sale.

      8. A bank may attribute money on deposit to the payment of a debt to itself by its depositor where it holds from the depositor a special mandate to that effect.
    9. The cotton consigned to a commission merchant for sale may be demanded at any time from the commission merchant or from his administrator by the consignor upon payment of the indebtedness of the consignor to the commission merchant.

      A PPEAL from the Civil District Court, Parish of Orleans. — St. -tl Paul, J.

      James F. Pierson and Horace E. Upton, for Edward Pierson, Administrator, Plaintiff, Appellant.'

      Dinkelspiel & Hart (Samuel L. Gilmore, of Counsel), for Defendant, Appellee.

      Dennis M. and Allan Sholars, for Florence P. Williams and Husband, Intervenors, Appellants.
   The opinion of the court was delivered by

Provosty, J.

The administrator of the Succession of John J. Gragard brings this suit against the defendant bank to recover 570 bales of cotton alleged to have been illegally and wrongfully taken possession of by the defendant bank after the death of the decedent, and to recover the value of said cotton in default of the cotton itself; also to recover judgment against the defendant bank for $2500.00 damages alleged to have been caused by the taking of said cotton, and for $909.82 alleged to have been on deposit in the defendant bank at the death of the deceased.

The defendant bank excepted that the petition disclosed no cause of action; and, on the overruling of said exception, answered to the merits pleading the general issue; and pleading specially that it took the cotton by right of a pledge executed in its favor by the deceased: and that it imputed the money on deposit to the payment of a debt due to it by the deceased.

We think that the petition does show a cause of action. The administrator of the succession of a bailee is entitled to continue the possession of his decedent and has an action to revendicate this possession as against a mere trespasser; Thompson on Pleading and Practice, Vol. 15, page 520, No. 4; Story on Bailments, Secs. 93 and 94; Section d’ f'; Clay vs. Fisher, 2 Ann. 997; Fowler vs. Cooper, 3 La. 216; Johnson vs. Imboden, 4 Ann. 178; 7th Ann. 111; and if the allegations of the petition be taken for true, as must be done on exception of no cause of action, the defendant bank is a mere trespasser.

On the merits it is urged that the decedent did not have, and his administrator has not, a standing to contest the validity of the pledge. This is true of the decedent, but not of the administrator. The latter represents the creditors — the succession being insolvent — and in this suit he is enforcing the rights of the creditors. At the death of a person his creditors, except mortgage creditors,-are denied all action to enforce payment of their debts, except through the appointment of an administrator, and through this administrator as their agent. Code of Practice, 987, 1053; Hennen’s Digest, Vol. 2, page 1503, No. 2, page 1504; Nos. 8 and 12; Carter vs. City, 33 Ann. 817; State vs. Brown, 32 Ann. 1020; Succession of Lange, 46 Ann. 1020; Succession of Ogden, 10 R. 467; Carter vs. McManus, 15 Ann. 642; William vs. Clark, 36 Ann. 747; Succession of Hood, 33 Ann. 464; Succession of Lehmann, 41 Ann. 991; Poultney’s Heirs vs. Cecil’s Executors, 8 La. 414; Scarborough Case, 43 Ann. 315; 44 Ann. 292. See also 28 Ann. 180; and particularly Succession of Harkins, 2 Ann. 925. To deny to this administrator, therefore, a standing to contest the validity of a pledge would be to deny the same right to the creditors; and to deny the right to the creditors would be the exact equivalent of asserting one of the two things, either that under Louisiana law invalid pledges are as effectual as valid pledges, or that under Louisiana law invalid pledges are made valid by the death of the pledgor. We think that there can be no doubt that an administrator, as the representative of the creditors, has an action wherever the creditors have one, and we think there can be no doubt that creditors have an action to test the validity of a pledge by their debtor. The property of a debtor is the common pledge of his creditors, unless there exists between the creditors some lawful cause of preference. Civil Code, Article 3183. Whether there exists such lawful cause of preference is plainly a question which creditors have a right to test. Defendant will hardly claim that by taking possession of the cotton, as it did after the death of the common debtor, it cut off all the other creditors from their right to test the existence of the pledge. If the defendant had no pledge, and for the purpose of the present discussion the assumption is that it had none, it committed a wrong in taking the cotton; and it cannot profit by its own wrong. Besides, the rights of all parties became fixed at the death of the common debtor, and no subsequent act has changed the legal situation from what it then was. Hennen’s Digest, Vol. 2, p. 1504, No. 1.

Did the defendant bank have a pledge? To show the existence of the pledge it relies upon three acts of pledge in which the objects pledged are described, as follows: In Act No. 1, “Press receipts 150 bales of cotton;” in Act No. 2, “Press receipts 250 bales of cotton,” and in Act No. 3, “Covered by receipts for 200 bales of cotton pledged.” The press receipts thus referred to are all three precisely alike, except in their dates and the number of the bales specified in them; they read as follows:

Marks. Bales. No. 161. New Orleans, 1899.
Shippers'’ Press.
Operated by the New Orleans Compress and Storage Co., Ltd.
Eeceived from J. J. Gragard..................................
Two hundred bales of cotton, marked as per margin. Cotton held subject to the return of this receipt properly endorsed.
Various 200. Crescent City Yard.
170-30 off.
New Orleans Compress and Storage Co., Ltd.
(Signed) W. Scott,
Acting Secretary and Treasurer.
Jno. J. Gragard,
President.
New Orleans Compress and Storage Co., Limited.
Int. Eev. Stamp. (Signed) W. Scott,
Acting Secretary and Treasurer.
Jno. J. Clark,
President.
Endorsement on Eeverse of Eeceipt.
Deliver one hundred and seventy bales of cotton (170).
(Signed) Jno. J. Gragard.
Deliver to the order of Messrs, W. B. Thompson & Co.
Metropolitan Bank."
A. C. Wuerpel, G.

It is noted that no marks are given in the margin, but instead thereof the word various is put down.

The SYO bales of cotton sued for were part of a large lot of cotton, over 2000 bales, stored in one of the compresses of this city for the decedent. This cotton had been consigned to the decedent by his customers, over 100 in number, for sale, and a majority of these customers were indebted to the deceased for advances. The president of the Compress Company testified that the receipts in question did not stand for any particular cotton, but for so many indeterminate bales to be taken indiscriminately from the cotton which was on hand at the date borne by each receipt; that the receipts were given in this form intentionally, in order that a pledge of them might not interfere with the delivery of any specific bales that might be sold out of the same large lot of cotton. He testified, further, that his company did not feel safe in delivering any cotton to the defendant bank when called upon to do so after the death of the decedent, and consented to make the delivery only after an indemnity bond has been furnished by the defendant bank.

This refusal to deliver was fully justified; and the defendant by giving the bond recognized it. On such a receipt the warehouseman could not possibly make any delivery. Abundant testimony to that effect is found in the record. Between the different bales of the cotton there might be great variance, nearly or fully as one to four; that is, one bale may contain nearly twice as much cotton as another and the cotton be of a quality twice as valuable. And in the case of this particular cotton, there was a further and, if possible, a more serious disparity between the different bales; some of it the decedent had not a legal or even a moral right to pledge, whereas some he had a perfect right to pledge. This circumstance added infinitely to the already fatal uncertainty of the receipt, for until proof to the contrary should be administered the presumption would have to obtain that the decedent intended to pledge, and the defendant bank intended to receive in pledge, only those bales which the decedent had the right to pledge, and the identification of these bales in the absence of any designation of them was utterly impracticable.

We must hold that, owing to the indeterminateness of the property intended to be pledged, there was no delivery, and in consequence no pledge. A warehouse receipt in the form prescribed by Act Y2 of 18Y6 may stand for the goods themselves, in such way that its delivery will operate a delivery of the goods; hut in order that this should he. the receipt must represent specific goods, or, at any rate, must represent a specific part of a common, or uniform, mass; and, as just shown, a lot of cotton bales cannot be treated as a common or uniform mass, especially when, to the physical disparity of the component hales, there is added a moral and legal disparity.

Besides, the receipts pledged to the defendant bank were not in the form prescribed by law, and, therefore, could not serve as the subject of a valid pledge. The matter of warehouse receipts and the pledge thereof is regulated in this State by special statute, and non-conformity with this statute is fatal to any attempted pledge. This statute, Act 72 of 1876, expressly declares in its title that its object is “to govern the manner in which cotton press receipts shall be issued in all cases where such receipts shall or may be used or pledged as collateral security for money advanced or borrowed on the faith of the property therein specified.” Section 2 of the act expressly provides, “All warehouse receipts intended for pledge under the provisions of this act shall be paraphed before being issued, as follows: ‘For hypothecation in accordance with the provisions of this act.’ ” The receipts of the defendant bank were not so paraphed, and as a consequence were not susceptible of forming the subjects of a valid pledge.

We may quote here as expressing exactly the law of this case what was said by this court in the case of the Succession of Lanaux, 46 Ann. 1052, as follows:

“The pledge was, inchoate, a delivery proposed, but never accomplished. The case is of the class of pledge proposed, but not perfected, and nothing is better settled than that an inchoate or executory contract of pledge, not perfected by delivery, confers no rights as against 'other creditors. The death of the debtor fixes the rights of the creditors as they exist, at that moment. The same rule is enforced when the debtor makes a surrender of his property to-his creditors. No delivery had been made when that death occurred, none after was possible. Civil Code, Arts. 3133, 3152, 3162, 3182, 3183, 3185; 12 Rob. 243; 2 Ann. 872; 5 Rob. 101; 3 Ann. 582. See the cases collected in 1st Hennen’s Digest, p. 686, No. 7; 2nd Hennen’s Digest, p. 1504. No. 1. The creditors’ case lacks the life of the pledge in a controversy with creditors, i. e., delivery.”

There having been no pledge, the action of the defendant bank in taking possession of the cotton was wrongful; and as a 'consequence the cotton, or its value, must be restored, and the defendant must compensate the succession for all expenses to which the succession has been put in the effort to rectify the wrong.

Considering that the cotton was being held for better prices, we think that the owners of it should be given the benefit of the better price that prevailed within a few months afterwards, say, by the middle of the following cotton season, or say, the average of the prices that prevailed during the month of November, 1899.

The expenses necessarily incurred in recovering possession of the cotton consist in the attorney’s fees. These we fix at $333.33.

The defendant bank had a special mandate to attribute the amount on deposit to the payment of any debts due to itself by the deceased, and having done so it has no further account to render.

Something was said in the argument in regard to settlements having been made between the defendant bank and some of the consignors of the cotton. In all such cases the interest of the plaintiff administrator is restricted to the amount due the succession by the owners of the cotton; and in all such cases there is no reason why the defendant bank should pay the plaintiff administrator the amounts over and above the debts due the succession.

Mrs. Florence P. Williams has intervened in this suit claiming to be the owner of 133 bales of the cotton in controversy. The settlement which the administrator might make with Mrs. Williams, if this cotton had not been taken by the defendant bank, may be made in the present suit. Mrs. Williams’ ownership of the cotton being fully established, and the amount of her indebtedness to the succession being also ascertained, she is entitled to the immediate delivery to her of the cotton, or of its value after payment of her debt; and there is no good reason why she should not have a judgment direct against the defendant bank.

It is therefore ordered, adjudged and decreed, that the Metropolitan Bank, defendant herein, pay to Edward Pierson, administrator of the Succession of John J. Gragard, the value of the 570 bales of cotton involved in this suit; less, however, such part of the value of said cotton as is hereafter decreed to be paid to Mrs. Florence P. Williams; the value of said cotton to be determined by the weights and classification according to which said cotton was sold and by a price determined by averaging the prices of cotton of corresponding quality as quoted by the New Orleans Cotton Exchange during the month of November, 1899; the usual expenses attending the selling of cotton to be deducted from the said value.

It is further ordered, adjudged and decreed, that the Metropolitan Bank, defendant herein, pay to Mrs. Florence P. Williams, intervenor herein, the value of the one hundred and thirty-three bales of cotton ascertained in this suit to have belonged to said Mrs. Florence P. Williams, after deducting from same the amount of the debt of the said Mrs. Williams to the Succession of John J. Gragard, namely, the sum of $2358.92; said value to be determined in the manner herein-above specified.

It is further ordered, adjudged and decreed, that the amount thus decreed to be paid by the Metropolitan Bank to the Succession of Gragard and to Mrs. Florence P. Williams bear interest at the rate of 5 per cent, from the 30 th day of November, 1899.

It is further ordered, adjudged and decreed, that this cause be remanded to the lower court for the purpose of ascertaining the value of the cotton in controversy in accordance with the provisions of the present decree.

It is further ordered, adjudged and decreed, that defendant, the Metropolitan Bank, pay the costs of this suit in both courts.

It is further ordered, adjudged and decreed, that in respect to those bales of cotton in controversy the sale whereof has been ratified by the consignors, there be paid to the plaintiff the value of such cotton no more than whatever amount may be necessary to satisfy the debt of the said consignors to the Succession of Gragard in capital and interest.

The Chief Justice and Mr. Justice Breaux dissent.

Eehearing refused, December 2, 1901.


author: Pkovosty, J.

text:
    No. 13,656.
    Succession of John J. Gragard. Edward Pierson, Administrator, vs. Canal Bank.
    Syllabus.
    1. A warehouse receipt not paraphed “for hypothecation,” etc., aa required by Section 2 of Act 72 of 1876, cannot serve as the subject of a pledge; nor can such a warehouse receipt be validly pledged without the affidavit required by Section 4 of the same act.

      2. Considering that the cotton in controversy was being held to await better prices, and that the defendant took possession of same and sold same without right, the defendant is made to account for the value of the cotton, not at the price at which the cotton was sold, but at the price which obtained a few months after the sale.
    APPEAL from the Civil District Court, Parish of Orleans. — Si. Paul, J.

      James P. Pierson and Horace B. Upton, for Edward Pierson, Administrator, Appellant.

      Branch Z. Miller, for Defendant, Appellee.
   The opinion of the court was delivered by

Pkovosty, J.

Dames and amounts changed, the petition in this suit is identical with that in the suit of the same plaintiff against the Metropolitan Bank just decided, except that in the present suit there is not a demand for money on deposit. The defenses also are the same, except that in the present suit the warehouse receipts contained a better description of the cotton, the consignors’ marks on each bale being given.

It is claimed by the plaintiff that these consignors’ marks on each bale are not sufficient to identify the cotton, it being possible that the cotton of different consignors should have the same marks, and, also, that part of the cotton of the consignor might be included in thei pledge, and part not be included without there being any possibility of discriminating between the two. The event proved, however, that it was possible to identify the cotton by means of the warehouse receipts held by the defendant bank; hence we believe that the cotton was sufficiently described in the receipts. But the receipts were not paraphed “for hypothecation,” as required by Section 2 of Act Y2 of 18Y6, and the pledgor did not make the affidavit required by Section 4 of the same act; and, in consequence, we must hold here as in the case against the Metropolitan Bank that the pledge was invalid.

We held in the ease of the Metropolitan Bank, and we repeat, that in the present suit the administrator is standing in judgment as a trustee of the creditors of the succession and not as the representative of the decedent; and that, therefore, he has a cause of action to bring back this property into the succession in order that it may be divided ratably among the creditors of the succession'.

There having been no pledge, the action of the defendant bank in taking possession of the cotton was wrongful; and, as a consequence, the cotton, or its value, must be restored, and the defendant must compensate the succession for all expenses to which the succession has been put in the effort to rectify the wrong.

Considering that the cotton was being held for better prices, we think that the owners of it should be given the benefit of the better prices that prevailed within a few months afterwards, say, by the middle of the following cotton season, or say the average of the prices that prevailed during the month of November, 1899.

The expenses necessarily incurred in recovering possession of the cotton consist in the attorney’s fees. These we fix at $333.33.

It is therefore ordered, adjudged and decreed, that the Canal Bank, defendant herein, pay to Edward Pierson, administrator of the Succession of John J.-Gragard, the value of the five hundred and ninety-four (594) bales of cotton involved in this suit; provided, that in respect to those bales whereof the consignors have ratified the sale, and whereof the surplus from the proceeds of sales over and above the debt to the Succession of Gragard has been paid to the consignors, there be paid to the plaintiff only the amount due to the Succession of Gragard; the value of said cotton to be determined by the weights and classifications according to which said cotton was sold and by a price determined by averaging the prices of cotton of corresponding quality as quoted by the New Orleans Cotton Exchange during the month of November, 1899; the usual expenses attending the selling of cotton to be deducted from said value.

It is further ordered, adjudged and decreed, that the amount thus decreed to be paid by the defendant herein to the Succession of Gragard, bear interest at the rate of 5 per cent, from the 30th day cf November, 1899.

It is further ordered, adjudged and decreed, that this cause be remanded to the lower court for the purpose of ascertaining the value of the cotton in controversy, and also of ascertaining the amounts paid as aforesaid to the owners of said cotton in • accordance with the provisions of the present decree.

It is further ordered, adjudged and decreed, that the defendant pay the costs of suit in both courts.

Nicholls, C. J., and Breaux, J., dissent.

Rehearing refused, December 2, 1901.


text:
    No. 13,657.
    Mrs. Florence P. Williams and Husband vs. Edward Pierson, Administrator et al.
    4 PPEAL from the Civil District Court, Parish of Orleans. — Si. \ Paul, J.

      Dennis M. and Allan Sholars, for Plaintiffs, Appellants.

      Dinhelspiel & Hari, for Metropolitan Bank, Defendant, Appellee.

      James F. Pierson and Horace E. Upton, for Edward Pierson, Administrator, Defendant, Appellee.
   The opinion of the court was delivered by

Provosty, J.

This suit involves the same issues that were tried in the matter of the intervention of the same plaintiff, Mrs. Florence P. Williams, in the suit of Edward Pierson, administrator of the Succession of John J. Gragard vs. Metropolitan Bank, No. 13,656. We sustained said intervention, and in it allowed to the plaintiff the full measure of her rights, and what to do with the present suit causes us some embarrassment. It has really never been tried, the issues between the parties having been tried in the intervention suit. We find, however, that by agreement of record the testimony taken on the trial of the intervention was to be considered as taken also in this suit; and we find, further, that a separate judgment was rendered in this suit rejecting the plaintiff’s demand in the lower court. From our decision in the intervention it results that the demand of the plaintiff in this suit is a just demand, and that, therefore, she is entitled to costs.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be set aside; that the plaintiff take nothing by this suit, on her demand, but that the defendant- pay the costs of both courts.

Nicholls, O. J., and Breaux, J., dissent.

Rehearing refused, December 2, 1901.


text:
    No. 13,924.
    Ferre Canal Company, Limited, vs. John P. Burgin.
    Syllabus.
    1. The agreement of parties that the contract shall be reduced to writing is a part of the contract; and, until fulfilled, the contract itself is incomplete.
    2. So that if a rice planter, on the one part, and a canal company whose business it is to furnish water to rice planters for the irrigation of their crops, on the other part, have an agreement, but contemplate that said agreement shall be reduced to writing, such company cannot recover against such rice planter on said agreement for water furnished, but can recover only on the implied contract to pay for water furnished and received — i. e. on a quantum meruit.

    3. In the absence of a contract the privilege provided for by Act 26 of 1898 cannot come into existence in the absence of an agreed price, and there can be no agreed price in the absence of a contract.
    APPEAL from tbe Eighteenth Judicial District, Parish of Acadia.— DeBaillon, J. -

      Philip J. Chappuis (Thomas ijf. Lewis and Thomas R. Smith, of Counsel), for Plaintiff, Appellant.

      Story & Pugh, for Defendant, Appellee.
   The opinion of the court was delivered by

Provosty, J.

The plaintiff, a corporation engaged in supplying farmers with water for the irrigation of rice crops and owning the canals, pumping machinery, etc., required for that purpose, furnished water to the defendáis, a rice farmer, for the irrigation of his crop of 1900, and now claims of the defendant one-fifth of his rice crop of that year, or the value thereof, basing itself in said demand on a contract. The suit is accompanied by sequestration.

Defendant admits his obligation to pay for the water, but denies that there was a contract; and, in reconvention, prays damages for a wrongful sequestration.

The intention of the parties was that their contract should be in writing. - When plaintiff began supplying water, and defendant began receiving water, it was with the distinct understanding that they were doing so under and by virtue of a contract to be thereafter entered into between them in writing. Towards the middle of the water furnishing season, on the 7th of July, the defendant and a Mr. Duller, an agent of plaintiff, but without authority to sign contracts, met for the purpose of drawing up the contract. Mr. Duller filled out the usual printed form — defendant furnishing the description of his land — and handed it to defendant for signature. Defendant, without reading, enquired whether the contract was the same as last year’s. Mr. Duller answered that it was, with the exception of a few clauses. Defendant,, without reading, declined to sign, giving as his reason that he would not sign until the company had signed and he could have his copy of the contract. This, he says, he was doing under advice of counsel. Thereafter, on the 23rd of July, the contract was signed by the company, but not by defendant. The company was desirous of obtaining defendant’s signature, but in point of fact never did obtain it. Whether defendant intentionally avoided to sign the contract, does not positively appear. The company’s mode of carrying on its business is to make contracts with its customers in writing. The agent of the company testifies that his company’s instructions to him were that the company required contracts to be in writing.

Under these circumstances, we conclude that- the execution of the written contract was a condition precedent to the existence of the contract. “It is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed. The distinction is manifest between those cases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that it shall be reduced to writing, and those in which, as in this ease, it is a part of the bargain that the contract shall be reduced to writing. In the first class of cases the original verbal contract is in no manner impaired by the failure to carry out the subsequent agreement to put it in writing. In the second class of cases, the final consent is suspended; the contract is inchoate, incomplete, and it cannot be enforced until it is signed by all the parties.” Fredericks vs. Fasnacht, 30 Ann. 119.

The application of this doctrine is not restricted to executory agreements, but extends to agreements in part, or in whole, carried out. Thus in the case of DesBoulet vs. Gravier, 1st N. S. 420, the agreement was for the sale of a boat. The agreement was complete as to everything except the execution of the writing agreed upon between the parties. The suit was for'the price of the thing sold. Porter, J., organ of the court, said: “For do we think that the fact of Gravier having acknowledged himself to be in possession of the schooner, by directing the person who had her in charge, to take care of her for him can prevent the application of the principle to the case before us. We regard this fact of possession as one of those circumstances which, coupled with others, would have made the. same complete if there had been no agreement to put it in writing; but when that agreement exists, the necessity of complying with it arises from the parties having added that condition to the other things required to make a legal contract. Fo case indeed, could occur, where the operation of the principle of law here invoked could be examined, unless the contract was complete, independent of its being reduced to writing, and we canniot distinguish between possession and consent, and price, and the other circumstances which would make the agreement binding.”

Thus, again, in the case of Meyer vs. Labau et als., 51 Ann. 1726, Louis Cyr, Paul Cyr and George Labau sold a store and the good will thereof to the plaintiff. The sale was evidenced by two instruments. One of the instruments was signed by all three of the vendors; the other, by George Labau and Paul Cyr, but not by Louis Oyr. Subsequently the vendors established a rival store, thereby violating the contract for the sale of the good will, and suit in damages was brought against all three of them. The court held that George Labau and Paul Cyr, who had signed the instrument selling the good will, were liable; but that Louis Cyr, who had not signed the instrument, was not liable; quoting 3rd M. 349; 1 F. S. 421; 24 Ann. 433; 4 La. 77; 30 Ann. 32; 28 Ann. 33. “In this instance,” said the court, “the parties did contemplate that the understanding and agreement as to good will, etc., should be reduced to writing and signed.”

Again, in the case of Bloeker vs. Tillman, 4 La. 77, the parties entered into an agreement by which the plaintiff was to take charge of the defendant’s warehouse and have one-third of the net profits; and by which, further, the agreement should be reduced to writing. The agreement was reduced to writing; was signed by the plaintiff; was handed to the defendant; who agreed that it was correctly written out, and promised that he would sign it. The defendant did not sign the agreement, but kept it. The plaintiff took upon himself the management of the warehouse and continued therein for about four months; when he was dismissed by the defendant. He brought suit for his proportion, of the profits for the time he was actually in the employ of the defendant, and for damages for a violation of the contract. Said the court, Martin, Judge: “The judge did not err. The ease before him was one in which the parties contemplated a written contract to be deposited in the hands of a third person, for their common security; nothing shows in either of them an intention to be bound by a parol contract. The plaintiff himself subscribed to the agreement and gave time to the defendant to do the like. Till the writing was perfected ’by the signatures of all the parties, it was but an inchoate one, and either party had the right of recanting. The- defendant, in doing so, availed himself of a legal right.”

The plaintiff is entitled to recover of the defendant the value of the water taken, but this recovery cannot be had in the present suit; it being well settled that a person suing on a contract cannot recover on a quantum meruit.

As a further result, the sequestration must be dissolved, since, under the Act 26 of 1898, the plaintiff has a privilege only where there has been an agreed price; and in the absence of a contract there is no agreed price. The lower court allowed the plaintiff in reeonvention five hundred dollars damages on dissolution of the sequestration. We see no reason for changing this judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed with costs in both courts.

Rehearing refused.


author: Blanchard, J.

text:
    No. 14,162.
    Eureka Homestead Society vs. Joseph Batt, Recorder of Mortgages.
    IN RE Eureka Homestead Society applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      McGloskey & Benedict, for Applicant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff society bought certain real property from one Underhill.

Underhill had, a year previously, bought the property from one Eulham.

At this purchase from Eulham a mortgage certificate was produced purporting to show what incumbrances were of record affecting the property.

This certificate failed to show the existence and registry of a claim against the property for paving a street which bordered it.

Sometime after plaintiff purchased from Underhill, the owner of the paving claim asserted his right, and to prevent the sale of the property owing the paving privilege the society settled the claim.

It then brought this suit to recover of the recorder of mortgages the amount so paid. The cause of action is stated to be plaintiff society’s reliance on the truth of the certificate annexed to the act of sale from Eulham to Underhill.

The case was properly non-suited by the Court of Appeals for want of proof on part of the plaintiff that in purchasing the property from Underhill it had acted on the faith of the certificate of mortgage which the recorder of mortgages gave when Underhill bought from Eulham.

The offer in evidence of the act of sale from Eulham to Underhill and from Underhill to plaintiff, together with the mortgage certificates annexed to those acts, and the declaration of the notary therein, did not suffice to prove this.

If plaintiff had the legal right to recover, which is its contention, there should have been testimony that in purchasing from Underhill it (the society) had relied upon the certificate which was given by defendant at the time Underhill bought from Eulham.

Besides, it is not considered that the ease presents any of the exceptional features, whether of law or fact, which, under the rule announced in repeated decisions, justify the granting of the writ of review, and the same is, accordingly, denied.


text:
    No. 13,696.
    James O’Rourke vs. City of New Orleans, et als.
    Syllabus.
    On Motion to Dismiss.
    Acts of acquiescence must be averred with sufficient particularity to make It evident, if the proof be as alleged, that the intention of the person charged with having acquiesced in a judgment was to comply with the judgment.

      On the Merits.
    1. Although the defendants had the authority to have a building demolished as unsafe, yet upon judicial investigation they must sustain the order to tear down the building by sufficient evidence.
    2. The defendants acted in good faith. The error was one of judgment for which the defendants, under the circumstances, cannot be held in damages.
    APPEAL from the Civil District Court, Parish of Orleans.King, J.

      Benjamin Rice Forman, for Plaintiff, Appellee.

      M. Bracos Bimitry, Assistant Oity Attorney, and Samuel L. Qilmore, Oity Attorney, for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff in injunction sought to restrain the defendants from tearing down a building of which he is the owner.

With reference to the facts, we are informed by the evidence that the city engineer, Mr. Bell, made an examination of this building, but did not condemn it at the time. The engineer, acting as he had a right to do, upon the report of one of the assistants in his office (and not upon personal re-examination after his first examination, some six months previous), notified the Commissioner of Public Works that plaintiff’s building was gradually moving toward the street; that the building was out of plumb to an extent that it had become dangerous to let it stand. The engineer informed the commissioner of the fact that attempts had been made to "tie the building with tie rods, but as these tie rods are pressed through the party walls between his, plaintiff’s building, and the two-story warehouse next to it, the movement of the building is carrying this party wall with it.” (Quotation from the letter of the engineer, before referred to, to the commissioner.)

After this examination had been made, the commissioner gave notice to plaintiff, based on the city engineer’s letter, of the unsafe condition of his building, and directed him to take down his building within three days from the date of notice, or the building would be taken down by the city. After the three days had elapsed, the workmen for the city commenced to tear down the building, but this was stopped by the injunction now before us for decision.

The defendants, in the examination of plaintiffs building, in giving notice to plaintiff, and in attempting to tear down the building, were acting under Ordinance No. 6533 of the Council, which provides that whenever a building is dangerously unsafe, with the approval of the Mayor, the commissioner, after notice, is authorized to take it down.

The judgment in the District Court was pronounced for plaintiff, maintaining the injunction. The defendants appealed. Before this court, the defendants moved to dismiss the appeal, on the ground that plaintiff had acquiesced in the judgment by demolishing the building which defendants contended was unsafe and erecting another on the same site. Counsel for the city also suggested, in argument, that this court is without jurisdiction rafione materiae, for the reason, that the amount involved is less than two thousand dollars.

There is no merit in the motion to dismiss on the ground of acquiescence. The mere fact that the plaintiff chose to take down this building some time after he had received notice to take it down is not, in itself, sufficient to justify us in holding that he thereby abandoned his injunction and complied with the city’s notice to take it down, and, besides, the affidavit filed herein as a basis of the motion is not dated, and does not indicate whether the building was taken down after, or before, the case had been finally decided by the District Court.

If it was taken down before the judgment had been finally rendered, it would scarcely be a timely issue to be presented on appeal. In the second place, we note the suggestion made in argument by defendants’ counsel, that plaintiff has reduced his demand to less than the lower limit of the court’s jurisdiction only to say that while it is true that plaintiff in his answer to the appeal asks that the judgment of the District Court be' amended so as to allow him fourteen hundred dollars as follows: Five hundred dollars to pay his attorney’s fees, and nine hundred dollars for loss of rent. In our view, the controversy between the parties is not reduced to these fourteen hundred dollars.

Plaintiff alleged, in substance, in his petition for an injunction, that the building which the defendants were attempting to demolish was worth more than two thousand dollars. On this appeal, he seeks to have the judgment sustaining his injunction affirmed in which a right is involved alleged to be worth more than two thousand dollars to the plaintiff; the matter is, therefore, within this court’s jurisdiction, even if no account be taken of the fourteen hundred dollars to which we do not understand that the issues are limited. Both, as related to the jurisdiction only, are before us for determination, viz: the right claimed as growing out of the attempt to demolish the building, and the claim for fourteen hundred dollars before mentioned. The motion and application to dismiss are denied.

Taking up the merits of the case for decision, we are informed by the evidence that the building of plaintiff, made of brick, fronted on South Peters street. The wall was about forty-five feet in height and had twenty feet front, and ran back on St. J oseph street one hundred' and twenty feet.

The city engineer, at the time, Mr. Brown (the administration no longer in office, when the city undertook to have plaintiff’s wall taken down), called the attention of the owner to the leaning wall in question. The defect was remedied to the satisfaction of this officer, who was no longer in office when the case was tried, but was a witness on the trial, and said that it was absolutely impossible for the wall to fall; that it was in the same condition it was in in 1893, or 1894, when it was anchored, in compliance with notice he had given to the plaintiff.

The builder of a two-story warehouse, adjoining the building in question, testifies that he thoroughly anchored the building complained of to the new building which was also owned by the plaintiff; that rods were placed near each other (about five feet one from the other) from the outside of the wall on St. J oseph street, straight through the party wall of the new adjoining warehouse. Four experienced builders testified that the wall complained of, braced as it was, was not dangerous; that it was impossible for the wall to fall without carrying down with it the warehouse to which it was strongly anchored.

It appears that iron clamps were fastened on the outside of the wall to the ends of iron tie rods connecting it with the opposite wall to prevent further leaning or bulging. This work had been done, we understand, in a manner satisfactory to the city authorities at the time. The assistant city engineer, upon whose report the commission acted, said that the wall is not safe unless it is tied very well and anchored. He never looked inside to see if it was tied and anchored, and did not know that the tie rods ran through the building from St. Joseph street on to, and through the party wall of the adjoining warehouse. He examined the wall exclusively on the outside, and did not make such an inspection as should have been made under the circumstances.

The city authorities, who sought to have the building demolished, were of the opinion that the wall complained of was not safe because it (owing to the tie rods attached to the adjoining building) was pulling down or causing the new party wall to lean also, and that it would carry down with it in its fall all the walls to which this St. Joseph street wall was braced by tie beams.

The witnesses for the plaintiff, on the other hand, testified that the anchors were amply strong to hold the wall; that the party wall was not giving away at all; that there was nothing about the roof, the beams, or the walls to indicate that the party wall adjoining the building in question was at all taken out of plumb by pressure. No serious effort was made to meet this evidence of defendants’ witnesses.

The weight of the evidence is with the plaintiff. This was the opinion of the district judge who heard the number of witnesses who testified. We have not discovered that he erred. In our view, the city had the authority to take down the building after notice given as in this case, but when issue is raised as to the dangerous condition vel non of the building, she should sustain her action with sufficient testimony. In this case she has not succeeded.

In the next place, in the order of the issues, we have already noted that plaintiff, in his answer to the appeal, lays claim to damages in the sum of fourteen hundred dollars. No demand was made for this amount in the District Court. No proof was offered specifically to prove up this claim.

Ordinarily, plaintiff in injunction is not entitled, to damges in the amount of the fee of attorney. The city’s attempt was not arbitrary; the officers throughout acted in good faith, and if they erred, they erred on the safe side. Under the circumstances, we feel that it would not be just for us to hold the city responsible for the damages claimed. While with the light before us the wall in question is made to appear as having been strong enough, taken as a whole, the position of plaintiff is not such as to give right to judgment for damages in reeonvention.

The judgment is therefore affirmed.


author: Nioholls, O. J.

text:
    No. 13,907.
    Martha Scott vs. Wilhelmina C. Leonard, et als.
    Syllabus.
    A seized debtor who becomes the adjudieatee at a sheriff’s sale made of his owa property, and pays the sheriff the amount of the bid, acquires no new title. (C. C. 495-2443.)

      APPEAL from the Seventeenth Judicial District, Parish of Vermilion. — Gordy, J.

      W. W. Edwards, for Plaintiff, Appellee.

      Hubert M. Ansley, for Defendants, Appellants.
   Statement of the Case.

The opinion of the court was delivered by

Nioholls, O. J.

This action is brought by a judgment creditor of the defendant, Wilhelmina O. Leonard, to set aside as fraudulent and simulated a judicial sale made of certain property in the Parish of Vermilion, made on the ■ — ■ day of-, in enforcement of a mortgage upon the property held by Desire Hebert, and on the same grounds to set aside a subsequent mortgage granted on said property and various transfers made thereof up to the present time. Plaintiff alleged that the object of the same was to place the property beyond the reach of her claims.

The District Court rendered judgment setting aside these various acts, declaring them null and void and simulated. It decreed the property to still belong to Wilhelmina Leonard and that it was subject to seizure and sale in satisfaction of plaintiff’s judgment. It ordered the erasure of the inscription of the mortgage upon the record. The defendant appealed.

The district judge, in his reasons for judgment, gave a detailed statement of the different transactions which were so set aside, and the grounds upon which he acted in adjudging them simulated. An examination of the record satisfies us that his conclusions were correct and that judgment was rendered according to the law and the evidence.

We see no necessity for setting out in this opinion what the evidence was. The case turned upon questions of fact. Desire Hebert, as a mortgage creditor, had the undoubted right to have the defendant’s property sold, and had any third person bought it, plaintiff would have had no legal grounds to complain, but it was shown that the seized debtor herself was the adjudicatee at that sale in the name of an interposed party. The adjudication vested in her no new title; a person cannot buy property which he already owns. (C. O. 2443.)

The adjudication left that title of the property just where it was before. The payment made by the defendant to Hebert after the sale, left the situation precisely the same as it would have been had the defendant made the payment before the judicial proceedings had been resorted to.

For the reasons assigned, it is hereby ordered, adjudged and decreed, that the judgment appealed from be, and the same is hereby, affirmed at costs of the appellants.

Rehearing refused.