author: DAWKINS, J. CROW, J.

text:
    No. 1775
    Second Circuit
    BERNHARDT v. SANDEL
    (January 18, 1923, Opinion and Decree.)
    (June 2, 1926, Rehearing Refused.)

      (Syllabus by the Editor.)

    ,1. Louisiana Digest — Landlord and Tenant —Par. 105, 106.
    The landlord’s lien provided by Articles 2705, 2707 and 3218 of the Civil Code .attaches to the property on the leased premises when the contract or lease becomes effective.
    2. Louisiana. Digest — Landlord and Tenant —Par. 111; Chattel Mortgages — Par. 1, 4.
    Under Section 4 of the Chattel Mortgage Law, Act No. 198 of 1918, the chattel mortgage primes a landlord’s lien becoming effective by the making of a new lease after the chattel mortgage was recorded even though the mortgaged property was not moved.
    3. Louisiana Digest — Chattel Mortgages— Par. 1, 4.
    The word “pledge” is included in the word lien as used in Section 4 of Act 198 of 1918 thus making a chattel mortgage a lien which shall be superior in rank to any privilege or lien arising subsequently thereto.
    ON REHEARING
    4. Louisiana Digest — Landlord and Tenant —Par. 105.
    The landlord’s lien is created by the lease of agreement between the landlord and tenant and not by the moving of immovable property into the premises.
    5. Louisiana Digest — .Landlord and Tenant —Par. 111.
    The landlord’s right of pledge, while giving the landlord the right of retention, does not advance the rank of his lien or prevent other creditors of the lessee from seizing and selling the property covered by the landlord’s lien.
    Appeal from the Parish of Ouachita, Hon. P. M. Odom, Judge.
    Action,' by Pauline Bernhardt against Charles Sandel. G. E. McGraw third opponent. There was judgment maintaining the third opposition. Plaintiff appealed.
    Judgment affirmed. On first rehearing former judgment reversed, but on second rehearing original judgment affirmed.
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    J. M. Munholland, of Monroe, attorney for defendant, appéllee.
   DAWKINS, J.

On the first day of January, 1920, plaintiff leased to Geo. E. Mc-Graw, a building in the City of Monroe, to cover a period of twelve months, commencing on the 1st day of January, 1920, and ending on the 31st day of December of that year. On the 16th of February, 1920, Mc-Graw sold the lease he had so acquired to one Charles Sandel, together with a lot of household effects such as are used in conducting a boarding house, only part of the purchase price .being paid in cash, and notes were given for the balance secured by vendor’s lien and chattel mortgage on the goods sold to Sandel.

On January 1, 1921, Mrs. Bernhardt, the plaintiff, leased the building which she had leased to McGraw for the year 1920, to Charles Sandel, for a period of three years, beginning January 1, 1921, at a monthly rental of $150.00. Sandel having defaulted on the payment of the rent for the months of September, November and December, 1921, plaintiff brought this action to recover judgment for the rent then due on the lease and for such other sums that should fall due during the pendency of the action. She caused a writ of provisional seizure to issue, along with her demand, under which the furniture and other property in the leased building were seized. In her demand, she has averred the lessor’s privilege on all the effects in the building existed in her favor, and stood as pledge for the payment of her privilege.

There was the usual prayer in -her petition that her privilege be recognized, the writ sustained, and the proceeds from the sale of the seized property be paid to her by preference, and for judgment for the sums shown to be due her on the lease, and she also demanded that the lease be cancelled and annulled.

Judgment was rendered on plaintiff’s demand by default, and the sheriff proceeded to sell the seized property; thereupon, Geo. McGraw filed a third opposition in the proceedings, in which he averred the sale by him to the defendant Sandel. In February, 1920, of all the property seized by the sheriff, and his debt, privilege and chattel mortgage thereon to the amount of $950.00, and praying that he be paid the amount of his said debt and lien from the proceeds resulting from the sale of the property, in preference and by priority over plaintiff.

Defendant Sandel made no defenses to either demand, and judgment was given against him in plaintiff’s favor for the amount due on her claim up to the time of the judgment, with interest, and the rent contract was cancelled and annulled. Sometime thereafter, the court rendered judgment on the contest between plaintiff and intervenor. In this judgment, the court held that the lien and privilege on the proceeds of the property sold under third opponent’s chattel mortgage was superior to the privilege claimed by plaintiff, and the sheriff was ordered to pay the proceeds to opponent in satisfaction of his said debt to the amount of $950.00. From the judgment, the plaintiff has appealed.

The case was submitted to the court on the following statement of facts:

“It is agreed that the goods sold by G. E. McGraw to Chas. B. Sandel were in the leased premises at the time of the sale and execution of the chattel mortgage from Sandel to McGraw. That the chattel mortgage was lawfully executed and recorded in the current chattel mortgage record at the time of its execution.
“That all rent due by G. E. McGraw on his lease contract to Mrs. Bernhardt was assumed and paid by, Mr. Sandel.
“That at the expiration of the McGraw contract of lease, a new contract of lease was made between Mrs. Bernhardt and Mr. Sandel, and the provisional seizure was sued out on this lease contract.
“That the seized property has never been off the leased premises up to the time of the provisional seizure.
’‘That Mr. Sandel owes Mrs. Bernhardt the amount of rent sued for.
“That Mr. Sandel owes Mr. McGraw the amount claimed in his opposition.
“That the chattel mortgage property sold for $445.00 which fund is claimed by G. E. McGraw.
“That other seized property sold for $75.00, upon which G. E. McGraw makes no claim.”

The issue presented in this case is the same as claimed in the case of Frank Betts & Son vs. Adam Clark; Walker Bros., third opponents, recently before this court, and No. 1510 on the docket thereof. In that case, the court said:

“The legal question presented in this case, is, which of the litigants is entitled to receive the proceeds arising from the sale of ’’the mortgaged property. It would seem that the statute (Act 198 of 1918) creating chattel mortgages, leaves no doubt as to who should receive the proceeds. Section 4 of said Act reads as follows:
“ ‘Be it further enacted, etc., that every mortgage shall be a lien on the property mortgaged from the time same is filed for recording, which filing shall be notice to all parties of the existence of said mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”
“Plaintiff’s mortgage was executed and recorded before opponent’s privilege came into existence, and if the language of the statute is to be accepted as meaning what it states, there can be no doubt of the superiority of plaintiff’s privilege. But opponents contend (and the same contention is urged in the present case) that under Articles 2705, 2707, and 3218, they have the superior privilege. We quote these articles:
Art. 2705: “‘The lessor has, for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased.’
Art. 2707: “‘This right of pledge effects not only movables of the* lessee and under-lessee, but also those belonging to third persons, when their goods are contained in the house or store, by their own consent, express or implied.’
Art. 2318. ‘The right which the lessor has over the products of the estate and on the movables which are found on the place leased, for his rent, is of a higher nature than a mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor, on the contrary, may take the effects themselves, and retain them until he is paid.’
“Opponents urge that since under these articles the right of pledge which is given to the lessor is of a higher nature than a mere privilege, it must be seen that Section 4 of Act 198 of 1918, does not rise higher in its effect than a mere privilege- or lien, and cannot outrank a right of pledge, which is higher than a mere privilege or lien. We take it that the word pledge is included in the word lien, as used in Section 4 of Act 198. The language of this Section is that the lien created by the mortgage ‘shall be superior in rank to any privilege or lien arising subsequently thereto’.”

We do not know if the word lien has ever been defined by the courts of this state. Evidently, the word has a broader meaning than the words, privilege, mortgage or lease, for we speak of the vendor’s lien, the lien of the furnisher of supplies, the lessor’s lien, mortgage lien, and even the lien of the pledge. Thus' designating privileges, mortgages and pledges.

Webster defines a lien as a “legal claim; a charge upon real or personal property for the satisfaction of some debt or duty; a right in one to control or hold and retain the property of another until some claim of the former is paid or satisfied.”

In Bouvier’s Law Dictionary, the word is defined as: “a hold or claim which one person has on the property of another as a security for some debt or charge. The right which one person possesses in certain cases of retaining property placed in his possession belonging to another, until some demand which the former has is satisfied.”

The American and English Encyclopedia of Law, 2nd Ed., vol. 19, says:

“A lien at common law is a right in one man to retain that which is in his possession belonging to another until certain demands of him — the person in possession— are satisfied.”

Each of these definitions of the word lien includes the definition of pledge as defined in the Article of our Code. Article 3133 declares that a pledge is a contract by which a debtor gives something to his creditor as a security for his debt. 43 A. 1038.

We are of the opinion that the Legislature, in the enactment of Act 198 of 1918, designed to make all claims on chattels inferior to the holder of a chattel mortgage where such claims arise subsequently to the execution and recordation of such chattel mortgage.

The foregoing views cover the situation in the ease before us, and in accordance with the conclusion reached there, we are of the opinion that the judgment appealed from is correct and it is hereby affirmed.

CROW, J.

This action involves a contest between plaintiff (in the original suit) and third opponent, over the proceeds of the sale of some personal property. Plaintiff contends that her lessor’s lien and privilege on said property and the proceeds of the sale thereof outranks third opponent’s chattel mortgage.

The original lease of the property on which the mortgaged personal property was located was between plaintiff and third opponent, George E. McGraw; but before the expiration of the lease, defendant, Charles Sandel, took over the lease, which was to expire on December 31, 1920, and then continued on the premises aforesaid, and, in January, 1921, re-leased the property for a period of three years, from January 1, 1921. Third opponent’s chattel mortgage was made and recorded before the new contract of lease was made with Sandel but after the first lease contract, which Sandel took over, was made with McGraw, and after McGraw had moved on the leased premises and placed the personal property aforesaid on said leased premises.

The following statement of facts were agreed upon and is found in the record, to-wit:

“It is agreed that the goods sold by G. E. McGraw to Chas. B. Sandel were in the leased premises at the time of the sale and execution of the chattel mortgage from Sandel to McGraw.
“That the chattel mortgage was lawfully executed and recorded in the current chattel mortgage record at the time of its execution.
“That all rent due by G. E. McGraw on his lease contract to Mrs. Bernhardt was. assumed and paid by Mr. Sandel.
“That at the expiration of the McGraw contract of lease a new contract of lease was made between Mrs. Bernhardt and Mr. Sandel and the provisional seizure was sued out on this lease contract.
“That the seized property has never been off the leased premises up to the time of the provisional seizure.
“That Mr. Sandel owes Mrs. Bernhardt the amount of rent sued for.
“That Mr. Sandel owes Mr. McGraw the amount claimed in his opposition. ’
“That the chattel mortgage property sold for $445.00, which fund is claimed by G. E. McGraw.
“That other seized property sold for $75.00, upon which G. E. IJcGraw makes no claim.”

There had been a conflict of jurisprudence between this court and that for the First Circuit of this state, until the Supreme Court decided, on writ of review to this court, the recent case of Youree, et al., vs. Limerick, et al., 157 La. 39, 101 So. 854, wherein- the holding of this court that a prior recorded chattel mortgage takes precedence of a lessor’s privilege on the mortgaged property, was upheld. However, in that case, the Supreme Court said:

“The lessor’s lien is purely statutory. See Revised Civil Code, Articles 2705, 2708 and 3218. It is the uniform rule that the lessor’s statutory lien attaches .to chattels as soon as they are brought on the leased premises and that said lien is in no wise dependent upon the maturity of the rent. Cyc. vol. 24, page 1250 (v) and authorities there cited.
“The Statutory lien of a landlord for rent attaches at the beginning of the tenancy, or when the chattels are brought upon the premises. * * * Such lien does not depend upon a levy and exists independently of the institution of any proceeding for its enforcement. The remedy by levy, distress or attachment, when available, is simply to enforce a lien' already existing. R. C. L., vol. 16, Sec. 503, p. 988, and authorities cited
' “The record establishes, and the foregoing excerpt from the opinion of the Court of Appeal shows, that the property covered by the chattel mortgage was In the leased premises at the time of the execution of said mortgage The lessor’s lien and privilege therefore had attached and was in existence when the chattel mortgage was given to the intervenor and third opponent. In this situation plaintiff’s claim outranked that of the intervenor and third opponent. Sec. 4 of Act 198 of 1918; R. C. L., vol. 16, sec. 504, page 988.”

The facts in the case at bar are praetically identical with those in the YoureeLimerick case, with regard to question here involved. The goods or chattels were on the leased premises before and at the time of the execution and recordation of third opponents’ chattel mortgage. Under the ruling of the case cited, supra, we must hold that plaintiff’s lessor’s privilege is superior in rank to that arising from third opponent’s chattel mortgage. However, since an application is, we understand, pending before the Supreme Court in the Youree-Limerick case, it is pretty certain that an application for a rehearing will be filed in this case, and, if the Supreme Court finally reverses its former ruling in the Youree-Limerick case, we shall, of course, grant a rehearing in this case.

For the reasons assigned, it is ordered, adjudged and decreed that our former decree entered, herein be, and it is, set aside and reversed; and it is now ordered, adjudged and decreed that the demands of third opponent for preference on the proceeds of the sale of the property herein involved, be, and are denied; and it is further ordered that plaintiff’s privileges as lessor be recognized and it is held to outrank the privilege or lien arising from third opponent’s chattel mortgage. Third opponent is to pay costs of third opposition, reserving to parties in interest the right to apply for a second rehearing.

PORTER, J., not having heard the argument, takes no part.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 10,020
    Orleans
    BUSCHER v. SOUTHERN RAILWAY CO.
    (March 29, 1926, Opinion and Decree.)
    (April 26, 1926, Rehearing Refused.)
    (June 1, 1926, Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Gowrt.)

    1. Louisiana Digest — Courts—Par. 8, 9; Pleading — Par. 66.
    In a transitory action arising in another state, the courts of this state, irrespective of the citizenship of the plaintiff, are without jurisdiction to entertain a suit brought by a foreign corporation doing no local business within this state. Under such conditions, a plea taken to the jurisdiction is well founded, despite the fact that the defendant corporation, under the laws of this state, has voluntarily designated an agent to represent it within this state as one upon whom citation may be served.
    Appeal from Civil District Court, Div. “E”, Hon. Wm. H. Byrnes, Judge!
    Action by Joseph H. Buscher against Southern Railway Company. There was judgment for plaintiff in part, and plaintiff appeals.
    Judgment reversed.
    Fred. A. Wulff, of New Orleans, attorney for plaintiff and appellant.
    Walter J. Suthon, Jr., of New Orleans, attorney for defendant and appellee.
   PER CURIAM

BELL, J.

Upon the facts noted and for the reasons stated in the opinion of this court this day rendered in the case of Frank Delatour and Edward Marmouget vs. Southern Railway Company, Inc., No. 10019 of the docket of this court, it is ordered that the judgment appealed from be set aside and reversed, and that there be judgment in favor of defendant,- Southern Railway Company, against plaintiff, Joseph PI. Buscher, maintaining defendant’s plea to the jurisdiction of the court, and dismissing plaintiff’s suit at his cost in both courts.


author: WESTERFIELD, J.

text:
    No. 10,459
    Orleans
    BOSICH v. CASE
    (May 24, 1926, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Payment—Par. 21.
    Defendant who has admitted the existence of a debt carries the burden of proving its payment.
    Appeal from First City Court, Section “C”, Hon. Wm. Y. Seeber, Judge.
    Action by Peter Bosich against Anthony Case. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    L. A. Dueros, of New Orleans, attorney, for plaintiff, appellant.
    Robert O’Connor, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges ' that he sold his oyster business to defendant by act before F. D. Charbonnet, notary public, for $500.00, of which $150.00. was paid in cash, and $350.00 by a note dated November 27, 1925, and maturing one year after date; that he received before maturity of the note a partial payment of $150.00 and therafter lost the note; that no further payments were made by defendant. He sues for $200.00.

Defendant pleads payment. From a judgment for defendant plaintiff has appealed.

Under elementary principles of procedure, defendant has admitted the existence of the debt and carries the burden of proving its payment. He has signally failed to sustain this burden. In his answer, when first interrogated on the stand, as a witness, he claims to have paid plaintiff, in person, at the (defendant’s) place of business. Subsequently he testified that “a man brought me the note”. He also testified that he put the note away and was unable to find it. F. D. Charbonnet, the notary before whom the act of sale was passed, testified that Case, the defendant, had agreed to give a chattel mortgage and a friend had agreed to loan the money, on an automobile truck for the purpose of paying plaintiff the balance due him and that Case subsequently refused to execute the mortgage; that after being served with citation in this suit Case came to. him and said that he had destroyed the pote. Case denied ever having seen Charbonnet or speaking to. him after suit was filed.

Anthony Massich testified that he heard plaintiff and defendant discussing the lost note in Mr. Charbonnet’s office and that Case agreed to execute a new note. The judgment appealed from must be reversed and it is now ordered that there be judgment for plaintiff, Peter Rosich, and against defendant Anthony Case, in the sum of $200.00 with interest thereon at the rate of 5% from judicial demand and all costs.


text:
    No. 9291
    Orleans
    BARTLETTE v. MICHEL BROTHERS
    (April 12, 1925, Opinion and Decree.)
    (April 26, 1926, Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Bankruptcy—Par. 19.
    When the proceeds of sale under execution in a state court are paid over by the sheriff to the plaintiff in execution and within four months thereafter the defendant is adjudged a bankrupt in the Federal Court, the sheriff’s sale cannot be set aside as void under Sec. 67 (f) of the bankruptcy law, nor can the proceeds in the hands of the plaintiff be recovered by the trustee in bankruptcy as an illegal preference under Sec. 60 (b) of the bankruptcy statute unless it is shown that the plaintiff knew or had reasonable grounds to know that the bankrupt was insolvent.
    2. Louisiana Digest — Bankruptcy—Par. 19, 30.
    The fact that the bankrupt was fugitive from justice and such fact known and alleged by the plaintiff in execution creates a presumption of dishonesty but not of insolvency of the debtor and cannot form the basis of a legal conclusion that plaintiff in execution knew or ought to have known of the bankrupt’s insolvency.
    Appeal from Civil District Court, Div. “C”, Hon. Percy Saint, Judge.
    Action by T. J. Bartlette against Michel Brothers.
    There was judgment in favor of plaintiff for $317.53 and defendant appealed.
    Judgment reversed.

      Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellee.
    F. Rivers Richardson, of New Orleans, attorney for defendant, appellant.
   OPINION

WESTERFIELD, J.

This is a suit by a trustee in bankruptcy to recover $572.52 as the amount of an alleged illegal preference.

There was judgment in plaintiff’s favor for $317.53 and defendant has appealed.

On November 17, 1919, the plaintiff firm alleging that Fernand B. Cavalier was indebted to it in the sum of $1515, sued out a writ of attachment upon the. ground that Cavalier had left the state permanently and was a fugitive from justice. After considerable litigation with Cavalier’s wife and others claiming ownership of the property seized (household goods) the sheriff realized $572.53 which amount on March 17, 1920, was paid over to the plaintiff. On April 10, 1920, involuntary bankruptcy proceedings were filed against Ferdinand Cavalier and his adjudication as a bankrupt followed on May 19, 1920. T. J. Bartlette, the present plaintiff, brought this suit on July 3, 1920, he having in the meantime been appointed trustee.

Was the money received by defendants as a result of the attachment proceeding an illegal preference under the Federal Bankruptcy Act is the question we are called upon to determine.

Section 67 (f) of the Bankruptcy Act as amended reads as follows:

“That all levies, judgments, attachments, or' other liens, obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt and the property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged and released from the same and shall pass to the trustee as a part of the estate of the bankrupt * * *. Provided that nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, or other lien of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry.”

It will be observed that it is the lien obtained by “all levies, judgments, attachments” through legal proceedings that is void, and only when obtained within four months of bankruptcy, 187 U. S. 165. The property of the bankrupt is by operation of this section of the law relieved of the lien and passes to his trustee unencumbered. And when the property has been sold and the proceeds are yet in the hands of the sheriff, the trustee is entitled to such proceeds, 5th Am. Ba,nk Reports 352. But when the lien is satisfied by the payment to the judgment creditor the proceedings in the state court are complete and neither the property nor the proceeds can be reached by the trustee under 67 (f) of the bankruptcy act.

“This subsection 67 (f) is not applicable where the money collected has already been paid to the judgment creditor as it does not operate to restore and then vacate a lien which no longer exists.” Collier on Bankruptcy, vol. —, p. 1589.

In a New York case it was held that:

“While proceedings are pending for the enforcement qf a lien created by a judgment or otherwise and before the lien is in fact satisfied by the lienor receiving the amount thereof doubtless the trustee in bankruptcy has the right to avoid the lien or follow the proceeds of the sale of the property to which the lien attached until they are actually paid over to the lienor. Such has been the interpretation placed upon this section by the Bankruptcy Court matter of Kennedy, 2 Am. B. R., 494.
“Until the' avails of' the sale actually reach the possession of the judgment creditor the proceeding to enforce the judgment may still be regarded as incomplete but when the proceeds are paid over, the lien of a judgment is in fact satisfied.”

Levor vs. Trustee, 8th Am. B. R. 459.

In the U. S. District Court of Oregon, Judge Wolverton held after citing the Levor case (supra) that “Where the proceeds of an execution sale have been paid over to the judgment creditor who was the purchaser before the filing of an involuntary petition in bankruptcy against' the judgment debtor, his trustee cannot by . summary proceedings compel a return of . the property or its proceeds.” In re Bailey, 16 Am. B. R. 289 (Syllabus). See also In re Resnek, 21 Am. B. R. 740.

In the case of In re Weitzel, 191 Fed. 463, the court said:

“The most serious objection is urged to the creditor’s claim upon the strength of the decision of In re Kenney, 105 Fed. 897, 45 C. C. A. 113, in which the Circuit Court of Appeals for this Circuit decided that, under section 67 of the Bankruptcy Law, a judgment obtained within four months prior to the filing of the petition was made null and void by the adjudication in bankruptcy and hence that money held by a judgment creditor as the proceeds of 'the sales under execution could be taken by the trustee as the property of the bankrupt, upon the theory that the right to the money had been destroyed by rendering the judgment null and void. Upon appeal to the Supreme Court of the United States, this decision was affirmed in Clarke vs. Larremore, 188 U. S. 486, 23 Sup. Ct. 363, 47 L. Ed. 555, upon a statement of facts by the Supreme Court showing that the sheriff 'in the case in question had the proceeds of the sale still in his hands. In other words, that the situation was yet in such a condition as would be covered by the word ‘levy’ or ‘lien’. The Supreme Court expressly avoids deciding yrhether the bankruptcy proceedings could affect a judgment and execution if payments had been made to the execution creditor, and that is the question we have in the present case.
“In as much as payme.nt of the judgment to the creditor by the sheriff wipes out the lien, and the judgment itself, to the extent of the execution levy, is vacated by payment so that it no longer .exists, it is difficult to see how the provisions of section 67 of the Bankruptcy Statute, could operate to the extent of requiring a repayment of the money.
“In the case of Clarke vs. Larremore, referred to in that opinion, Mr. Justice Brewer, in his statement of facts, is very careful to make it appear that the trustee was entitled to the custody of the fund because of the fact that it was still in the hands of the sheriff.”

But counsel says this proceeding is not brought under 67 (f) of the bankruptcy act and that as pointed out in In re Weitzel (supra) if other sections of the bankruptcy act void tlie transaction complained of here as an illegal preference he is entitled to recover. There can be no gainsaying this proposition, consequently we hasten to examine the other provisions relied on. We are referred to Sections 60 (b), 67 (c) reading as follows:

“If the bankrupt shall have procured or suffered a judgment to be entered against him, in favor of any person, or have made a transfer of any of his property, and if, at the time of the transfer, or of the entry of the judgment, or of the recording or registering of the transfer, if the law recording or registering thereof is required, and being within four months after the filing thereof and before the adjudication, the bankrupt be insolvent and the judgment or transfer then operate as a preference, and the person receiving it, or to be benefite.d thereby, or his agent acting therein, shall have reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person. And fqr the purpose of - such recovery, any court of bankruptcy, as herein-before defined, and any state court which would have had jurisdiction if bankruptcy , had not intervened, shall have concurrent jurisdiction.” Sec. 60 (b) Bankruptcy Act, 1898.
“All conveyances, transfers, assignments, or encumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under -the provisions of this Act subsequent to the passage of this Act, and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchases in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned or encumbered as aforesaid, shall, if he be judged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt, and shall pass to his said trustee, whose .duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or encumbrances of his property made by any debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void against the creditors of such debtor by the laws of the state, territory or district in which such property is situate, shall be deemed null and void under this Act against the creditors of such debt- or, if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt. For the purpose of such recovery any court of bankruptcy, as hereinabove defined, and any state court which would have jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.” ■ Sec. 67 (e) Bankruptcy Act, 1898.
“The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, unless he -was a bona fide holder for value prior to the date of adjudication. Such property may be recovered or its value collected from whomever may have received it, except a bona fide holder of value. For the purpose of such recovery any court • of bankruptcy, as hereinabove defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.” Sec. 70 (e), Bankruptcy Act, 1898.

There is no question .here of any conveyance by the debtor under Section 67 (e) and in order to recover under Section 60 (b) it must be alleged and proven that in suffering a judgment to be entered against him the creditor believed he had reasonable grounds to believe the debtor intended to give him a preference. In re Bailey, 16 Am. B. R. 293.

In the case at bar the debtor was out of the city and away from the jurisdiction of the court. In fact he was a fugitive from justice or at least it is so alleged in the petition for the attachment. It is not shown that plaintiff knew he was insolvent. The mere fact that the debtor was a fugitive creates no presumption of insolvency. A strong presumption of dishonesty may fairly be implied from the fact of flight but dishonesty and insolvency are very different things. “The wicked flee when no man pursueth.” We are accustomed to speak of “ill gotten gains” and never of ill gotten losses. Money has ever been regarded as the consideration for dishonesty and corrupt practices. Witness Judas and the thirty pieces of silver in the garden of Gethsemene and Joseph’s brethren and the twenty pieces of silver on the plains of Canaan as early and classic examples of contumacious perfidy resulting in a distinct improvement of the financial condition of the guilty parties whatever may be said of the moral or spiritual’ aspect of their conduct. “The wages of sin is death” but the same wage is paid to virtue and “the jingle of the guinea” has ever helped to “heal the hurt that honor feels”.

' The evidence does not establish that defendant knew or may reasonably be held to have known of the insolvency of its absconding debtor and the fact of his fleeing from justice known to and alleged by defendant creates no presumption which may form the basis of a reasonable conclusion that defendant must or ought to have known of such insolvency.

We have reached the conclusion announced with a full appreciation of the closeness of the ultimate question involved, and if we have erred we are consoled by the fact that we will soon be set right by a superior tribunal. In the meantime we are pleased to have reached a legal conclusion which seems to us of such manifest equity.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant, Michel Brothers, dismissing plaintiff’s suit at his cost.

Judgment reversed.

I respectfully dissent.

(Signed) W. A. BELL, Judge.


text:
    No. 10,019
    Orleans
    DELATOUR AND MARMOUGET v. SOUTHERN RAILWAY COMPANY
    (March 29, 1926, Opinion and Decree.)
    (April 26, 1926, Rehearing Refused.)
    (June 1, 1926, Writs of Certiorari and Review Denied by Supreme Court.)

      (.Syllabus by the Court.)

    1. Louisiana Digest — Courts—Par. 8, 9; Pleading — Par. 66.
    In a transitory action arising in another state, the courts of this state, irrespective of the citizenship of the plaintiff, are without jurisdiction to entertain a suit brought against a foreign corporation doing no local business within this state. Under such conditions, a plea taken to the jurisdiction is well-founded, despite the fact that the defendant corporation, under the laws of this state, ' has voluntarily designated an agent to represent it within this state, as one upon whom citation may be served.
    Appeal from the Civil District Court, Parish of Orleans, Div. “E”, Hon. William H. Byrnes, Jr., Judge.
    Action by Frank Delatour and Edward Marmouget against the Southern Railway Company.
    There was judgment for the respective plaintiffs in amounts less, than claimed, and plaintiffs appeal.
    Judgment reversed.
    Fred. A. Wulff, of New Orleans, attorney for plaintiffs and appellants.
    Walter J. Suthon, Jr., of New Orleans, attorney for defendant and appellee.
   OPINION

BELL, J.

This is an action ex delicto, brought by plaintiffs against the defendant railroad for injuries to certain race horses belonging to plaintiff. The accident occurred near Greenville, South Carolina, while the shipment was in transit from Bowie, Maryland, to New Orleans, Louisiana. The caretaker who was travelling with the horses ha,s also sued the defendant for physical injuries arising out of the same accident. The two suits have been consolidated for purposes of trial on appeal..

Defendant filed in each suit a plea to the jurisdiction of the court, which was overruled. Upon the merits, there were judgments for the respective plaintiffs in amounts very much less than claimed. Plaintiffs in both suits have appealed, and defendant, answering each of the appeals, has filed and renewed before this court its plea to the jurisdiction, praying that said plea be maintained in each suit, or, in the alternative, that this court either dismiss the suits on the merits or else reduce the amounts awarded.

Considering carefully the two records as consolidated, particularly certain stipulations between counsel and certain unrebutted testimony offered by defendant in amplification of the stipulation, we find the statements in defendant’s brief, which are pertinent to its plea to the jurisdiction, to be correctly set forth . as follows:

“The plea to the jurisdiction is based upon the ground that the defendant is a foreign corporation, organized under the laws of Virginia, and is accordingly not suable in Louisiana upon a cause of action arising in another state (South Carolina), although it has concededly qualified to do business in Louisiana and appointed an agent for service of process here. The contentions are made alternatively (a) that the Louisiana statutes do not authorize the institution of a suit against a foreign corporation here, arising out of business done elsewhere, or (b) that, if the Louisiana statutes do purport to confer jurisdiction of such a cause of action upon its courts, they then become unconstitutional insofar as they apply to such foreign corporations as the present defendant, which does no legal business in this state, but confines its operations solely to interstate commerce.
“The facts upon which the pleas to the jurisdiction were submitted and embodied in two stipulations, together with the testimony of an employee of the defendant covering its operations within the State of Louisiana.
“It appears from these stipulations and this testimony that the shipment of these race horses, accompanied by their caretaker, was a through interstate movement from Bowie, Maryland, to New Orleans, Louisiana, the route being as follows: Bowie, Md., to Washington, D. C., Pennsylvania Railroad Company; Washington, D. C., to Atlanta, Ga., Southern Railway Company; Atlanta, Ga., to Montgomery, Ala., Atlanta & West Point Railway Company; Montgomery, Ala., to New Orleans, La., Louisville & Nashville Railway Co.
“The record contains duplicate original of the through bill of lading issued by the Pennsylvania Railroad Company covering this movement, and that railroad, as the initial carrier of an interstate shipment, was legally responsible for the proper performance of the contract of carriage for the entire journey from Bowie to New Orleans. (Carmack Amendment, U. S. Comp. Stat., Sec. 8604 (a); Atlantic Coast Line vs. Riverside Mills, 219 U. S. 186.)
“The Southern Railway Company, as an intermediate carrier from Washington to Atlanta, assumed no such responsibility and the contract as to it was merely one for transportation between those two points. It was not responsible to the shipper for the transportation of these horses from Atlanta to New Orleans, or for safe handling of same during that part of the journey. (Atlantic Coast Line vs. Riverside Mills, 219 U. S. 186; 10 C. J. 544; Vincent & Hayne vs. Y. & M. V., 114 La. 1021; Thompson vs. Southern Pacific Co., 121 La. 994.)
“Buscher accompanied the horses as caretaker, and of course had the same routing. He testified that he purchased a local ticket from Bowie to Washington and then procured from the Southern Railway Company a through ticket from Alexandria, Va., to New Orleans. (Pltf’s test. 12, 15.) This, however, did not make the Southern Railway Company responsible to him for transportation beyond its own lines (i. e., beyond Atlanta), since the rule as to passenger transportation, unlike the rule as to interstate freight transportation, is that a carrier selling a through ticket beyond its own lines acts merely as an agent of the subsequent connecting carriers, and is not responsible for the performance of that portion of the contract of carriage. 10 C. J., 819; Missouri Pacific Railway Co. vs. Prude, 265 U. S. 99.
“It is thus demonstrated that, in both cases, the cause of action arises out of an accident which occurred in. South Carolina, in the course of the performance by defendant of a contract of carriage, which, as far as its own responsibilities were concerned, commenced at Washington or Alexandria and terminated at Atlanta.
“The stipulations further show that the Atlanta & West Point Railroad Company and the Louisville & Nashville Railway Company, which furnished the transportation from Atlanta to New Orleans, as well as the Pennsylvania Railroad Company, the initial carrier, are corporations separate and distinct from the Southern Railway Company, and are not affiliated with it or its system. It is admitted in the stipulation that the New Orleans & Northeastern Railroad Company, (which did not handle this shipment at all), operating a railroad line between New Orleans and Meridian, forms a part of what is called the Southern Railway System, with which the Southern Railway Company is affiliated, but the two are separate and distinct corporate entities and which are operated by separate and distinct corporations, two of which are the Southern Railway Company and New Orleans & Northeastern Railroad Company, and is not itself a corporation or a legal entity of any nature whatsoever. The Southern Railway Company has qualified in Louisiana as a foreign corporation, and has appointed one E. R. Oliver as its agent for service of process. It neither owns nor operates any railroad lines within the State of Louisiana, the closest point to Louisiana reached by its own lines and its own operations being Atlanta, Ga., Birmingham, Ala., and Meridian, Miss.
“The testimony of A. D. Stoll, assistant to,. Mr. Oliver, is to the effect that the Southern Railway Company owns no railroad lines and operates no railroad trains within the State of Louisiana, and that its only operations here are the solicitation of freight and passenger business for its lines in other states. It appears from his testimony that all of the Southern Railway System Lines maintain a joint office in New Orleans for the solicitation of freight and passenger traffic, the Southern Railway Company paying a pro rata of the expense of this office, but that all the railroad business obtained through the solicitation activities of this office for the Southern Railway Company covers movements outside of the State of Louisiana.”

In the light of the indisputable facts above noted, we are of the opinion that the plea to the jurisdictiqn should have been maintained.

It is contended for plaintiffs and defendant’s voluntary, compliance with the State statutes (Acts 194 and 243 of 1912; Act 267 of 1914; Act 179 of 1918), resulting in its appointment of an agent for services of process in this State, rendered defendant amenable to the present action, irrespective of the fact that the cause of action arose in a state other than that in which this suit is brought, and notwithstanding the fact that the alleged act of negligence was in no manner connected with any business conducted by the defendant within the State of Louisiana. In support of this contention, plaintiffs rely upon the ruling made in State ex rel. Watkins vs. North America Land & Timber Co., Ltd., 106 La. 621, 31 South. 172, where mandamus issued to. compel the appointee and resident representative in Louisiana of a London corporation to permit the relator to examine such books of the respondent as were actually located in Louisiana, the inspection having been denied relator by the designated agent, while the latter was actually residing in and acting for respondent in Louisiana. It is plain that in the cited case the cause of action upon which the mandamus proceedings was predicated, arose within the State, un.der whose judicial process relief was sought. The facts in the Watkins case, as against those under consideration, are clearly differentiated. A careful analysis of that decision convinces us that the question here at issue was not there decided. The court, however, indicated in discussing certain decisions of other courts tending toward the maintenance of jurisdiction over suits against foreign corporations on causes of action arising elsewhere, that if such issues were before it, i it would not be disposed to follow the extreme view expressed in the cited authorities. On that point, the court said:

“It is not necessary, nor would .we be disposed, to adopt the extreme view last above referred to. On the contrary, we might hold that the jurisdiction acquired by service of process- on respondent’s agent in this State is confined to-cases in which the cause of action arises here, and nevertheless maintain the jurisdiction so acquired in the. instant case. For, whilst, the relator’s right, if he has any, to inspect the respondent’s books, may spring from the contract made in England, the cause of action disclosed in his petition consists of the refusal of the respondent’s agent here to permit him to exercise that right.”

Whatever independent conclusions may be advanced as to the precise ruling made in the Watkins case, there is, however, a later and more conclusive authority which determines the jurisdictional question here involved. It is our opinion, that the question is no longer open to discussion, in the light of what has been determined by the United States Supreme Court in the case of Missouri Pacific Railroad Company vs. Clarendon Boat Oar Company, 257 U. S. 533, we quote, in part, from the opinion as follows:

“This is a writ of error to the judgment of the highest court of the State of Louisiana to which the case could be taken. The plaintiff, the Missouri Pacific Railroad Company, a Missouri corporation, sued the defendant company, the Clarendon Boat Oar Company, a New York company, for damages in the District Court of Rich-land Parish, for the. breach of an affreightment contract entered into in the State of Arkansas and to be performed in that State. The defendant appeared solely to except to the jurisdiction. The district court sustained the exception, and, on' appeal to the Court of Appeal of the Second Circuit, this ruling was affirmed and the cause dismissed. The Supreme Court of the State refused to entertain an appeal.
“Act No. 243 of 1912, p. 543, and Act No. 267 of 1914, p. 532, of the Annual Laws of Louisiana, provide that service. on foreign corporations may be made on any agent which the corporation has designated, and require that every foreign corporation doing business in the State shall file a written -declaration with the Secretary of State showing its domicile and the place or places where it is to do business and designating its agent, resident in the parish where its business is to be- done, and that service on said agent, whether personal or domiciliary, shall be a valid service on it. The Court of Appeal in this case held, following what it deemed to be the holding of the Louisiana Supreme Court in the case of Watkins vs. North American Land & Timber Co., 106 La. 621, that the Louisiana statute was not intended to give' the state courts jurisdiction over foreign corporations by service on agents appointed thereunder, in transitory actions arising ip another state. The action of the Supreme Court in refusing to entertain an appeal in this cause shows this to be the authoritative construction of the statute by the state courts.”

See Simon vs. Southern Railway Co., 236 U. S. 115; Mitchell Furniture Co. vs. Seldon Brick Construction Co., 257 U. S. 213.

Upon the authorities herein noted, we are of the opinion that the plea to the jurisdiction of the court is well founded, and should be maintained. It is therefore ordered that the judgment appealed from be set aside and reversed, and that there be judgment in favor of the defendant, Southern Railway Company, and against plaintiffs, Frank Delatour and Edward Marmouget, maintaining defendant’s plea to the jurisdiction of the court, and dismissing plaintiffs’ suit, at their cost in both courts.


author: MAY, Judge

text:
    No. 9429
    Orleans
    HUGHES LUMBER COMPANY v. MADISONVILLE SAW & PLANING MILL
    (July —, 1926, Opinion and Decree.)

      (Syllabus 6y the Court)

    1. Louisiana Digest — Mandate—Par. 1, 8.
    Agency is a question of law, to be determined by tbe relations of tbe parties, as they in fact exist, under tbeir agreements or acts.
    2. Louisiana Digest — Brokers—;Par. 2, 5, 12.
    The authority of a merchandise broker need not be expressly conferred. At the outset, he is the agent of the party who first employs him. Later, he may become the agent of the other party, if the latter instructs him to close the bargain, and under certain conditions, he may be the agent of both.
    3. Louisiana Digest — Mandate—Par. 6, 22.
    Authority of an agent does not depend upon conscious intention to confer it. If persons intentionally do certain acts, of which the legal effect is the creation of authority, that authority will exist, regardless of motive.
    4. Louisiana Digest — Brokers—Par. 2, 5 8, 9.
    In the absence of an expressed stipulation in a broker’s contract, as to who the broker represents, all of the facts must be taken into account in determining the question — such as, who first set the agent in motion? Who gave him his instructions? Whose interest is he to protect? Who is to pay his commission? Who could complain, as to- his negligence? Will holding him to be the agent of one party, leave the other without a representative present?
    5. Louisiana Digest — Sales—Par. 58, 82.
    Time of shipment, even though it be made the essence of a sale contract, may be waived by the purchaser, ■ as such waiver may be express, or it may be implied from any conduct on the purchaser’s part, inconsistent with an intention to insist on punctual performance.
    Appeal from Civil District Court, Division “F”, Hon. Percy Saint, Judge.
    Action by Hughes Lumber Company against Madisonville Saw & Planing Mill.
    There was judgment for plaintiff and defendant appeals.
    Judgment affirmed.
    F. P. Burns and St. Clair Adams, of New Orleans, attorneys for plaintiff and appellee.
    J. D. Dresner, of New Orleans, attorney for defendant and appellant.
   MAY, Judge

ad hoc. This is a suit by the Hughes Lumber Company, a Mississippi corporation, against Dendinger, Inc., owner and operator of the Madisonville Saw & Planing Mill.

The claim is for five hundred and forty-three dollars, ninety-five cents ($543.95), being the contract price of certain lumber, purchased by defendant from plaintiff.

On September 27, 1920, defendant sold to the Lucas E. Moore Stave Company, Inc., of New Orleans, a carload of lumber, at the price of forty dollars ($40.00) per thousand feet, “F.O.B. New Orleans,” “Ship at once”.

On or about October- 19, 1920, W. L. Tomlin, an employe of the defendant company, at a fixed salary, placed an order with S. L. Dawson, doing business as the Dawson Lumber Company, of Meridian, Mississippi, for the lumbqr in question, at .tlje price of .twenty-three, -dollars ($23.00) per thousand feet, F.O.B. car at point of shipment. Time of shipment to be “prompt".

On October 20,' 1920, Dawson ordered from plaintiff, the requisite lumber, at twenty-three dollars and fifty cents ($23.50) per thousand feet, E.O.B. mill, with instructions to ship to C. R. Phillips, at Canandaigua, N. Y., with invoice to Mádisonville Saw & Planing Mill, New Orleans. This order from Dawson to plaintiff, contains the notation, that it is in confirmation of purchase, and requests plaintiff to rush shipment, and to “ship this week sure”, and a further notation that Dawson’s commission is one dollar ($1.00) per thousand feet. The following appears printed upon the order: “Acknowledge receipt of this order direct to customer, which will be confirmed direct to you.” Accompanying the order, is a letter from Dawson, of even date, calling attention to the fact that “We have increased our price of twenty-three dollars ($23.00) to twenty-three dollars and fifty cents ($23.50), and have charged you one dollar ($1.00) per thousand commission.

On the same day, Dawson wrote defendant as follows:

“We are enclosing herewith copy of our order No. 1595 placed with the Hughes Lumber Company, of this city, and have just wired you car number as per enclosed confirmation.
“You will note that we have increased your price fifty cents (50c) as this will come from a mill that takes a two cents (2c) less rate than from here.”

On the same, day, Dawson wrote plaintiff:

“Kindly refer to our order for the account of Mádisonville Saw & Planing Mill, of New Orleans, and change shipping instructions to read as follows:
“Lucas E. Moore Stave Company,
“New Orleans, .La.”

On October 22, defendant wired to plaintiff, advising of Dawson’s error in shipping instructions, and asked for shipment to Lucas E. Moore Stave Company.

Immediately upon receipt of the above wire, plaintiff wrote defendant, stating that Dawson had already discovered the error in shipping instructions, and that plaintiff was advising its mill, as to the necessary change, and continues, “They were just ready to begin loading, so everything will' be all right, and shipping papers will be forwarded with the least possible delay.”

In his testimony, Mr. Hughes, president of the plaintiff company, says that when he received the original order from Dawson, for New York shipment, he arranged for loading into a Pennsylvania car, and-that when he received notice from Dawson to hold for further shipping instructions, he telephoned his mill at DeKalb, Mississippi, to hol.d shipment, and the mill thereupon applied the- Pennsylvania car on another order.

Mr. Hughes says further that, at that time,' cars were very scarce, and that “many railroads called for home routing”, .and that it might be for that reason that the shipping clerk (now dead) could not use the Pennsylvania car, and that he finally had to order an. L. & N. ear, in which to. make the New Orleans shipment, and that a car could not be procured on an instant’s notice.

On October 22, 1920, defendant sent plaintiff, a confirmation of the order, at the price of twenty-three dollars and fifty (Cent's ($23.50), per thousand feet,' and for. shipment to Lucas E. Moore Stave Company, New Orleans. .

On November 1, 1920, plaintiff shipped the lumber, consigned to Lucas E. Moore Stave Company,- and at the same .time, mailed to the defendant an invoice, with bill of lading attached.

On November 3, 1920, defendant sent bill of lading with defendant’s invoice to Lucas E. Moore Stave Company.

On November 4, 1920, Lucas E. Moore Stave Company, wrote defendant acknowledging receipt of bill of lading covering shipment in L. & N. car 4875, and stated, “We wrote you yesterday that owing to the delay in filling this order, we decided to have same cancelled. Last week when we ’phoned you, stating that if you did not fill the order immediately, that we would cancel it right then and there, you gave us a car number, Erie 98375, which you stated you were loading that day and would go forward the following day. We repeatedly requested you to furnish us with bill of lading covering shipment of this car, but to no avail. From the papers just furnished us, it is very clear to us that the above car mentioned never was intended to be loaded for us, and that you had not started, shipment forward. We are returning to you your invoice and bill of lading, and we will not accept this car of lumber, having purchased our requirements elsewhere”.

On November .3, 1920, Dawson wrote plaintiff, asking for status of the order; stating that it was given with the distinct understanding, that shipment would be made immediately; that fifteen days had elapsed; that defendant had just advised the writer that unless defendant was immediately furnished with invoice and bill of lading, the stave company would buy on the local market, and adding that if bill of lading had not already gone forward, to let defendant have same not later than Thursday, November 4.

On November 13, 1920, defendant wired plaintiff, cancelling order and plaintiff replied on November 15, 1920, that it had intended loading in Pennsylvania car 83563, but was advised to hold for shipping instructions; that mill applied above car on another order and loaded in L. & N. car; that plaintiff was not to blame and insisted that shipment be accepted.

On November 16, 1920, defendant wrote plaintiff, that the shipment had been definitely refused by the Lucas E. Moore Stave Company, on account of erroneous car number given, and that defendant would have to unload the lumber and make the best possible disposition of it.

On February 5, 1921, defendant wrote plaintiff, again referring to the fact that the lumber had been refused by Lucas E. Moore Stave Company because of failure to ship in car number given by plaintiff, and stating that it was necessary, after some demurrage had accrued, to have the car unloaded in the defendant’s yard, where it was still intact. Defendant wrote further, that it had referred the matter to the Lumbermen’s Credit Association for an opinion, and that plaintiff would be advised, if Lucas E. Moore Stave Company was forced to pay for the shipment, adding “If so, we will of course pay you”.

On September 21, 1921, defendant wrote plaintiff, advising that the lumber was still intact, in the defendant’s yard; that the defendant had hoped for instructions as to disposal; that freight, demurrage, unloading and stacking charges, etc., amounted to two hundred and fifty-nine dollars and nineteen cents ($259.19), and that storage charges would not be made until November 21, 1921.

On February 21, 1923, plaintiff brought suit, and defendant answered, admitting the order given by Dawson to plaintiff, and its confirmation by defendant, and further admitting that incorrect shipping instructions were furnished plaintiff by Dawson.

Defendant denied any indebtedness, however, for the stated reasons, that Dawson is a manufacturer’s agent; that defendant’s employe, Tomlin, placed the order with Dawson, giving the latter correct shipping instructions; that Dawson was plaintiff’s agent, and was paid a commission by plaintiff; that the lumber contracted for by defendant, had been ordered by the Lucas E. Moore Stave Company, who wanted prompt shipment, and that this was known by plaintiff’s agent, Dawson, and by plaintiff; that plaintiff’s agent, Dawson, on October 20, 1920, wired defendant that the lumber was being loaded in Pennsylvania car 83563; that in order to satisfy the Lucas E. Moore Stave Company, that its order was being given prompt attention, this information was furnished to them, and that the stave company, thereupon requested invoice and bill of lading, and same not coming to hand, threatened to cancel the order unless immediately furnished the car number; that thereafter, two other car numbers were furnished by plaintiff, and the shipment still not coming to hand, the Lucas E. Moore Company declined to accept same, feeling that on account of the various car numbers given, they could apparently place no reliance upon the information furnished.

Defendant further answers, that it was put to certain expense, by way of freight, and storage charges, etc., and reconvenes for such charges, together with loss of profit on sale.

There was judgment in the trial court for plaintiff, in the sum prayed for, the trial judge, in written reasons for judgment stating that he found Dawson to be defendant’s agen?, and that the shipment was made by plaintiff in the customary manner.

Upon trial, Mr. Hughes, president of plaintiff company, testified that Dawson is in the commission lumber business; that he, Hughes, alone solicited orders for his company; that Dawson came to him and said that he had an order from the Madisonville Saw & Planing Mill for some 2x10, and some small timber; that witness told Dawson what the price would be, and accepted the order; that witness did not employ Dawson to obtain the order; that Dawson would get orders and take them around to different concerns; that defendant subsequently wrote confirming the order, and changing the shipping instructions; that witness thinks he received a telegram from defendant, saying that Dawson had made a mistake in shipping instructions; that plaintiff shipped the lumber on October 31, 1920; that the original bill of lading and invoice were sent to defendant; that so far as witness knows, there were only two cars involved in this shipment, the Pennsylvania car, which had to be released upon changing shipping instructions, and the L. & N. car, in which the lumber was shipped to New Orleans; that witness has no recollection of ever having given defendant notice of car Erie 98375, and that there is nothing in his records, pertaining to such a car and number; that witness believes he finally got the correct shipping instructions on October 22, 1920, and that the shipment was made November 1, 1920; that defendant wired plaintiff, on November 13, and after the car had been on the road thirteen days, that the shipment was refused on account of errors in car numbers given; that so far as witness can recall, Dawson had, after giving the correct shipping instructions, nothing further to do with- the matter, except that he wrote the letter t>f September 3,' saying that if plaintiff, did not furnish the lumber, they would have to buy it on the local market and charge plaintiff company „with the difference. Hughes further says, that at the time Dawson wrote" that letter, defendant had the invoice and bill of lading; that witness did not consider Dawson as his representative; that Dawson had the order and would have gone with it to anyone; that Dawson placed orders with no certain person, but with anybody; that he, witness, did not employ Dawson, but paid him a commission; that the usual commisison is fifty cents (50c), but Dawson made him pay one dollar ($1.00); that witness wanted defendant’s formal order, “before he would have made the shipment”; that he did not offer Dawson a commission to sell the ’ lumber; that Dawson told him he had the' order and, “I said, who is it for, and he gave me the name of the concern, and I asked the price and they told me. I do not remember whether twenty-three dollars ($23.00), or twenty-three dollars and fifty cents ($23.50). He said, will you accept the order, and pay me a commission, and I sad I would.” Hughes further testifies, that defendant confirmed the order at twenty-three dollars and fifty cents ($23.50).

Paul A. Blanchard, in the employ of defendant as assistant to the general manager, testifies as to the duties of defendant’s employe, W. L. Tomlin. Witness also, wrote the letter of September 22, 1921, the plaintiff, enumerating the various disbursements • by defendant, such as freight, and unloading charges, and says that he saw the cancelled vouchers for those disbursements. He further testifies, that the lumber in question, was stacked in' defendant’s yard, where, it has received the best of care, except that it might have been put in, a shed, and that the charge of five dollars ($5.00 per month, for storage, made by the defendant, is very reasonable.

Mr. Dendinger, vice-president and general manager of the defendant; company, says that he signed the vouchers for the disbursements testified to; that Tomlin was a paid traveling salesman; that his company was never able to get the Lucas E. Moore Stave Company -to accept the lumber; that witness never employed Dawson to represent him in the lumber’s purchase; that his company rendered an invoice to the Lucas E. Moore Stave Company on November 3, 1920; that the bill of lading and invoice from plaintiff were in defendant’s possession on that date; that according to the custom of the trade, an order designating “prompt shipment” should be made within a week, and that when lumber is sold to go forward “at once”, it means immediately, but with a recognition of the fact, that you cannot load lumber at a mill on receipt of an order, but it would probably take a day or two; that defendant company had made the sale to the Lucas E. Moore Stave Company on September 27, 1920, and that the contract covering such sale called for “at once” shipment; that he considered that in purchasing the lumber from plaintiff on October 19, 1920, for delivery to Lucas E. Moore Stave Company, his company had complied with the conditions to ship at once, unless there was some other understanding between his salesman and Lucas E. Moore Stave Company; that Lucas E. Moore Stave Company did not reject the shipment because of the delay, but because of the giving by plaintiff of various car numbers, which irritated the representative of the stave company so much, that he did not want to do any further business; that “ship this week sure”, means, within the week of the day of contract, which in the present instance, meant before November 1st; that defendant waited until November 13, before notifying plaintiff that defendant would not accept the shipment, because the Lucas E. Moore Stave Company declined the shipment about that date. Later on, this witness again admits that Lucas E. Moore Stave Company declined the shipment on November 3, 1920.

It is fortunate that the issues of fact presented to us for consideration are quite clear and largely undisputed.

In truth, the entire transaction, out of which this controversy arises, is fully outlined by the documentary evidence on file, and the testimony of the witnesses, except as to matters of detail, is of slight value other than for the identification of the exhibits.'

It remains for us, therefore, to consider these facts in connection with the defenses made, the first and basic defense being that Dawson was plaintiff’s agent, and that acting in such capacity, his mistake in shipping instructions was the mistake of plaintiff.

In support of this position, defendant says that its traveling representative, Tomlin, placed the order with plaintiff through Dawson, who is a manufacturer’s sales agent, and that being a sales agent, Dawson was necessarily agent for plaintiff, who paid him a commission, while the only person who received compensation from the defendant was Tomlin, who was already a salaried employe.

On the other hand, plaintiff’s president, Hughes, says that Dawson was never employed by his company to secure the order, but would take orders and submit them to anybody; that in the present instance, Dawson came to him with the order and plaintiff named the price and closed the contract; that the usual commission in matters' of this sort is Fifty Cents (50c), but that Dawson made him pay One Dollar ($1.00).

We do not agree with defendant, that because Dawson was a “Sales Agent” and was paid a commission by plaintiff, he was necessarily plaintiff’s agent.

The authority of a merchandise broker, need not be expressly conferred, and in practice, ordinarily is not. At the outset, the broker is the agent of the party who first employs him, but he becomes the agent of the other also, when the latter instructs him to close the bargain, (Mechera on Agency, Second Edition, Sec. 2375).

Authority is not dependent, upon proof of a conscious intention to confer it. Here as elsewhere, if parties intentionally do certain acts, and the. legal effects of those acts is the creation of authority, the authority will exist, even though the parties do not actually contémplate that result. (Me-chem on Agency, Second Edition, Sec. 247).

In a case such as the present one, where there is nothing definite, in the contract of employment, as to who the broker represents, all facts must be taken into account, in determining the question. Such as who set the agent in motion originally? Who gave him his instructions? Whose interest was he primarily to protect? Who was to pay him? Who could complain as to his negligence? Will holding him to be the agent of one party, leave the other without a representative present? (Mechem on Agency, Second Edition, Séction 300.)

Applying these inquiries to the instant case, we find that the defendant, first engaged Dawson, and in fact, from the order given to'Dawson, it would'appear that he, himself, is the seller, and not the agent of ■ any one.

Defendant says that Dawson was, from the very beginning, plaintiff’s- agent, but certainly plaintiff would not be liable in damages for breach of contract, if Dawson had never placed the order with him. Cóntinuing on, we find that the defendant, contracted with Dawson, both as to. price and -terms of shipment, and certainly neither price nor terms could be, in any way, binding upon plaintiff, until he entered into a contract embodying them.

As to whose interest was he primarily to protect, Dawson certainly deemed defendant to be his especial charge, else why did he write plaintiff on November 3, 1920, saying, “We gave you the order on October 20, with the distinct understanding that the car would move immediately * * *. The Madisonville Saw & Planing Mill called us this morning and advised that unless they were furnished with invoice and bill óf lading immediately, their customer would buy on the local market and charge the difference • t-o you * * *. We ask that if invoice and bill of lading have not already g-one forward, that you let Madisonville -Saw -& Planing Mill have same not later than Thursday, 4th.”

Then again, turning to the order, given to Dawson by plaintiff, we find printed therein, “Acknowledge receipt of this direct to customer, which will be confirmed direct to you”.

Prom the foregoing, it is quite clear that Dawson was primarily to protect defendant’s interest, and so construed his duty, and that plaintiff only, could complain of his negligence.

-It is true that plaintiff paid Dawson’s commission, although in" view of the fact that Dawson charged one dollar ($1.00) commission instead of fifty cents (50c), and increased the price of the lumber from twenty-three dollars ($-23.00), to twenty-three dollars and fifty cents ($23.50), with defendant’s approval, it would look very much as if half of the commission was paid by defendant.

We do not believe however, that the payment of the commission, is the controlling factor, determining agency in this case. It may be that Dawson, was the agent of both, but he was certainly defendant’s agent when he passed the order to plaintiff, with shipping instructions, and when he wrote the letter of November 3, 1920.

Defendant next takes the position, that such error in shipping instructions was corrected by Dawson on the same day that it was made and that plaintiff should not be allowed to use such error as an excuse for any delay in shipment.

Plaintiff answers this by saying, that when it made the contract with Dawson, it had an available car, and was ready for immediate loading and shipment to Canandaigua, N. Y., but that when the change in shipping instructions was made, plaintiff had to abandon shipment in that car, and wait for another, that could be used to transport fhe lumber to New Orleans.

It seems to us, however, that the issue presented for determination is not so much affected by the lapse of time between the making of the original contract and the notification to plaintiff of error in shipping instructions, as it is by the fact that plaintiff’s contract to ship to New York, is altogether different from the amended contract calling for New Orleans shipment. The record shows that when plaintiff received notice from defendant of change in shipping instructions, he replied that he had already been so advised by Dawson, and that it was all right, and that shipping papers would be forwarded with the least possible delay.

Plaintiff’s obligation under the corrected contract was, therefore, to ship with the least possible delay, and we find nothing to indicate that he di.d otherwise.

Suppose however, that this mistake in shipping instructions, being so promptly corrected was not, in fact, the cause of any justifiable delay, and that plaintiff’s obligation was still “to rush this shipment all possible” and to “ship this week sure”.

The term “prompt shipment” appears in the order from defendant to Dawson, and may be considered as embodied in the instructions from Dawson to plaintiff to “rush this shipment all possible”, and defendant’s vice-president, Dendinger, testifies that according to the custom of the trade, “prompt” means within a week, and “ship this week sure” • means shipment within the week of day of contract.

The only testimony in the record however, as to the proper interpretation to be given these terms, is that of Mr. Dendinger, and the force of his testimony, is most decidedly affected, when he says further, that the lumber in question, was sold by his company to Lucas E. Moore Stave Company, on September 27, 1920, under a contract calling for an “at once shipment” while his company, did not contract for such lumber through Dawson until October 20, 1920, but that he, the witness, considers that his company was, ne.vertheless, acting in compliance with its obligation to the Lucas E. Moore Stave Company, “unless there was some other understanding between our salesman and the buyer”.

But even had plaintiff’s obligation been to ship within the week, Dawson by his letter of November 3, 1920, acquiesced in and ratified, any and all delays up to that date, and defendant’s failure to decline the shipment until November 13, 1920, or ten days after its receipt of bill of lading and invoice from plaintiff, was in itself a ratification.

We, see no error in the judgment appealed from and it is therefore,

Affirmed.


author: WEBB, J.

text:
    No. 2562
    Second Circuit
    WILLER AND KERN v. WEBB
    (April 10, 1926, Opinion and Decree.)
    (May 7, 1926, Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Attachment—Par. 45, 98.
    A petition for an attachment which merely states the name of the defendant with the prefix “Mrs.” does not necessarily indicate the legal status of that person or suggest a way that would make it necessary to dissolve the attachment.
    2. Louisiana Digest — Attachment — Par. 103; Pleading — Par. 55.
    An exception of verification is a dilatory exception under Act 228 of 1924 and cannot properly be considered a motion to dissolve an attachment.
    3. Louisiana Digest — Corporations—Par. 130, 133, 134.
    Section 16 of Act 267 of 1914 should be construed as vesting the same power in all the officers of the corporation who are considered as managing officers as are vested in the president and vice-president.
    4. Louisiana Digest — Attachment—Par. 61.
    The eecretary or any other officer of a corporation are competent sureties on an attachment bond made by the corporation.
    5. Louisiana Digest — Pleading—,Par. 22.
    The plaintiff does not have to set forth the status of a woman defendant whether marrie.d or unmarried in his petition.
    6. Louisiana Digest — Evidence—Par. 58; Marriage — Par. 62.
    A married woman is given the right to appear in court and protect her interests whenever they are involved, but she cannot be relieved from proving the facts upon which her defense is based.
    7. Louisiana Digest — Marriage—Par. 58, 62.
    Under Article 25 of the Civil Code as amended by Act 219 of 1920, a mar- - ried woman has the right to appear in her individual status in court, establish the fact of her marriage and protect her rights under the law.
    Appeal from the City Court of the City of Shreveport, Caddo parish, Louisiana. Hop. David B. Samuel, Judge.
    Action by Wilier and Kern, Inc., against Mrs. Pearl Webb for merchandise purchased and writs of attachment and garnishment. Defendant moved to dissolve the attachment with damages. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    Crow and Coleman, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, Miller and Kern, Inc., bring' this action to recover judgment against defendant, Mrs. Pearl Webb, in the sum of three hundred dollars for 'goods, wares and merchandise alleged to ' have been sold to defendant', and, under appropriate allegations, obtained an order for writs of attachment 'and garnishment.

The' defendant moved to dissolve the attachment, and claimed damages amounting to one hundred and fifty-five dollars.

We summarize the grounds upon which the motion to- dissolve was based, as follows:

1. The petition failed to state a right or cause of action.

2. The petition is not verified in accordance with law.

3. The affidavit is insufficient to warrant the issuance of the writ of attachment.

4. The attachment bond is not such as is required by law.

The motion to. dissolve was submitted and overruled, and the defendant, through counsel, moved for a new trial, alleging:

“That the defendant is a married woman, living under the regime of community of acquets and gains existing between her and her husband, T. L. Webb; that she is not separated from her husband either by judgment of divorce or judgment of separation from bed and board, neither is she separate in property either by marriage contract or by judgment of any court, and that the debt sued on by plaintiff herein was contracted under the community of acquets and gains and during the time when defendant was a married woman, whose husband was, and still is living and from whom she is not divorced and who is not made a party to plaintiff’s suit, and that move is without capacity to stand in judgment herein.”

The motion for a new trial being overruled, counsel for the parties signed' an agreement which reads as follow's:

“It is hereby agreed, by and between the attorneys for the plaintiff and the attorneys for the defendant in the above styled and numbered cause, that the exceptions of no cause of action and want of proper verification, and the motion for a new trial filed by the defendant, with her affidavit attached thereto, be taken and considered by the court as the answer of defendant; and it is further agreed that this cause be submitted to the courts, of both original and appellate jurisdiction, wholly and exclusively on the pleadings filed herein, namely: the petition of plaintiff, and the exceptions of no cause of action and want of proper verification and the motion and affidavit for a new trial thereon, filed by the defendant.”

The case was submitted under the agreement and the court rendered judgment against the defendant for the amount claimed, sustained the writs of attachment and garnishment, and ordered the garnishee to pay over to plaintiff the amount admitted to be due, which amount was less than the amount of the judgment.

The defendant, Mrs. Pearl Webb, appealed.

OPINION

We shall consider the case first as relates to the writ of attachment and motion to dissolve, and second on the merits.

I.

MOTION TO DISSOLVE ATTACHMENT

1. The petition failed to state a cause or right of action. The basis of this contention is that a married woman is not liable for the debts of the community, and that all debts contracted during the existence of the marriage are presumed to be community debts and therefore one who seeks to obtain judgment against a married woman for a debt, must allege facts which if true would render her liable, and that plaintiff having set forth the name of defendant as “Mrs.” Pearl Webb it must be presumed she was a married Voman, and no allegation being made which would render a married woman responsible for goods purchased by her, the petition fails to state a cause of action.

We are of the opinion the prefix “Mrs.” does not necessarily indicate the legal status of the person designated to be such as to differentiate her liability from any other who may be alleged to have purchased merchandise, and the court would not have been warranted to refuse to issue the order for attachment on that ground, nor to have recalled it by dissolving the attachment, on the suggestion that the defendant was a married woman, which appears hern to have been the only way in which the matter could have been called to his attention, as the motion to dissolve did not mention this circumstance.

2. The petition is not verified in ac'cordance with law.

The suit is by a corporation alleged to be organized under the laws of this state; the petition is verified by the secretary, bnd the • position taken by defendant is that, 3t not appearing from the petition or affidavit that the president was absent, or that the secretary was the managing officer, the verification was insufcient. Conceding the position taken to be true, the exception of' verification is a dilatory exception, and if sustained would not necessarily cause the dismissal of the suit, but the court in such cases may in its discretion allow the verification to be amended (Act No. 228 of 1924) and hence we are of the opinion that the exception of want of verification cannot be properly considered on a ' motion to dissolve.

3. The affidavit is insufficient to warrant the issuance of the writ of attachment.

The facts as shown by the pleadings, as to this, are stated above, and while this point as well as the preceding is not pressed on appeal, we understand the basis of the position is that the secretary is not alleged to be the agent of the company, and the law does not presume him to be the agent within the meaning of Article 244 of - the Code of Practice.

Section 16 of Act No. 267 of 1914, provides that the president, vice-president or any manager of a corporation shall have the power to authorize the institution of suits, etc., to have conservatory writs issued, and sign bonds for the corporation, etc.

We are of the opinion that the law should not be construed as limiting the powers expressed to the president and vice-president, but that the statute should be construed as vesting the same power in all of the officers of the corporation who are considered under the law as managing officers of the corporation.

“The secretary is one of the general managing agents of the corporation, and when in the discharge of the duties of his office he represents the corporation itself.”

Thompson, Corporations, 2nd ed., sec. 1505.

4. Th.e attachment, bond is not such as is required by law. This position was based, as we are informed, upon the theory that the secretary of a corporation is incompetent as a surety on a judicial bond executed by the corporation; but, it is not pressed here, and in a general way, the corporation being in law a distinct entity from any of the shareholders, or officers, we are of the opinion the secretary or other officer of the corporation would in this respect be a competent surety.

II.

MERITS

The grounds upon which the defendant bases her contention that the judgment was erroneous, is the presumption of the law that all purchases by the spouses made during the existence of the marriage are for the benefit of the community, and the obligations thus created are the debts of the community, for which the wife is not liable; contending that in order to hold a married woman liable for any debt created during the existence of the marriage, even by her purchases, the person seeking to hold* her responsible must allege and prove facts which rebut the presumption of law or overcome it otherwise, such as fraud, etc., and as plaintiff in the present instance has alleged no fact which would rebut or overcome the presumption, and it appearing that she is a married woman, the court could not render judgment against her.

Since the change in the law by the amendment of Article 25 of the Civil Code which reads:

“Men and women are capable of all kinds of engagements and functions, except where the law decrees to the contrary, and unless disqualified by reasons and causes applying to particular individuals.”

And the enactment of Act No. 219 of 1920, which reads:

“A married woman, whether a resident of this state or not, shall be competent to contract debts, purchase, sell and mortgage, and to bind and obligate herself personally with reference to her separate and paraphernal property, and to appear in courts and to sue and be sued to the same extent and in the same manner as though she were a femme sole; provided that nothing herein contained shall be deemed or construed to authorize a married woman to contract with her husband, or to grant her the right to mortgage or pledge her separate and paraphernal property for the benefit of her husband, or to bind or obligate herself personally or as surety for her husband; and provided further that nothing herein contained shall be deemed or construed to affect in any way the statutes of this state establishing and regulating the matrimonial community of acquets and gains and prescribing what shall be deemed separate property of the spouses.”

Married women may be said to have a dual legal status, that is, a married status, in which they are not sui juris, and an individual status in which they are sui juris, and it is sometimes difficult to determine in which status they appear, which difficulty is presented by the record in the present instance; as we find the defendant (who subsequently claimed that she was a married woman) appearing before the court in the motion to dissolve the attachment, and claiming damages for wrongful issuance of process, and on the merits appearing and asking the court to determine that she is a married woman and therefore not sui juris as to the claim made against her.

It appears to us that the defendant has in this case appeared in her individual status, and in such status she had the right to appear and establish the fact of her marriage from which the legal presumption flows, and that she may thus appear without the authorization of her husband or of the court, and thus by her answer it appears she admits the. purchase by her of the commodities and undertakes by her plea to show merely that she was a married woman at the time of the purchase.

It appears from the briefs of counsel that they are not in accord as to the effect of their agreement; counsel for the defendant taking the view that at the time the. court rendered judgment the marriage of the defendant had been established, while counsel for the plaintiff takes the view that no evidence was offered in support of the plea as to. the alleged fact, and in this situation we look to the agreement.

We are of the opinion that the agreement does not show the defendant was admitted to be a married woman, and unless it be that, the court is without authority to render a judgment whenever it is suggested that one of the parties is not sui juris, we see no reason which would have, authorized the court to have refused to render judgment.

We concede a married woman cannot be held responsible for the debts of the community, where the obligation does not arise under unusual circumstances, and also that a judgment which may be rendered against a married woman for a debt of the community may be different from that which might be rendered against a minor; but conceding that the judgment rendered against the defendant was for an obligation of the community and that it is res judicata, we are of the opinion the court had to render the judgment which it did, unless it be that in every case where a woman is sued the plaintiff must set forth her status, whether married or unmarried, which we are of the opinion is not the law.

Conceding that the right of a married woman to contract is the exception and not the rule, yet she is given the right, as all other citizens are, to appear in court and protect her interests whenever they may he involved, and when she appears she must come in her individual status, and her pleadings are not to be differentiated from those of any other person, and when she appears to protect her rights she cannot be relieved of proving the. facts' upon which her defense is based.

For the reasons assigned, the judgment is affirmed.


author: PHELPS, Judgé

text:
    No. 10,474
    Orleans
    HORTMAN-SALMEN COMPANY, INC. v. SMITH, ET AL.
    (June 21, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mechanic’s Privileges —Par. 2, 6, 13, 23.
    Section 2 of Act 139 of 1922 has no application to cases where no contract for the construction of a building has been entered into by the owner; such cases are governed by Section 11 of said Act. In view of the provisions of Section 19 of Article XIX of the Constitution of 1921, and of the fact that Section 1! of Act 139 of 1922 does not prescribe any time within which liens falling within the provisions of said section shall be recorded, the recordation of a lien falls within the terms of Section 11 of Act 139 of 1922 cannot affect persons who have acquired the property subsequent to the period during which the materials were furnished and who have recorded their titles prior to the registry of .any claim of lien by the furnisher of the material unless it be held that the provision of Section 2 of Act 229 of 1916, . requiring registry within forty-five days after the acceptance of the work is still in effect. It is unnecessary to decide in this case whether Act 229 of 1916 is repealed in toto by Act 139 of 1922 as plaintiff’s lien was not registered within the time required by the former Act.
    Appeal from the First City Court of New Orleans, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by Hortman-Salmen Company, Inc., against Robert Smith, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John J. Reilly, of New Orleans, attorney for plaintiff, appellant.
    S. F. Gautier and McLoughlin & West, of New Orleans, attorneys for defendant, appellee.
   PHELPS, Judgé

Ad Hoc. Plaintiff, Hortman-Salmen Company, Inc., brought this suit against Robert Smith, Clayton J. Borne, Fidelity Homestead Association and Brooks L. Vassar for the payment of plaintiff’s claim as material man, amounting to two hundred and eighty-five dollars and seventy-four cents, and for the recognition of plaintiff’s lien and privilege on the property in question. The facts are admitted and are as follows:

On November 19, 1924, Smith was the owner of a lot of ground in the city of New Orleans. Vassar, a contractor, was en/gaged in the construction of a building on the said ground. The building was erected without any contract or bond. Between November 19, 1924, and January 24, 1925, plaintiff sold and delivered to Vassar lumber which was used by Vassar in the construction of the building and no part-of the price of said lumber -has been-paid. On January 24, 1925, Smith sold the property to the Fidelity Homestead Associa-tion, and on the same day the Fidelity Homestead sold the property to Borne. There were annexed to both acts of sale the usual certificates showing that at the time of the execution of the sale the property was free from any encumbrances. On August 17, 1925, plaintiff recorded a sworn statement of account in the mortgage office, and served a copy on the then owner, Borne. This was more than sixty days after the completion and occupancy of the building. No written acceptance of the building was ever recorded in the mortgage office.

There was judgment in favor of plaintiff against the trustee of Vassar, who had gone into bankruptcy, but dismissing plaintiff’s suit as to Borne and the Fidelity Homestead and refusing to recognize a lien and privilege upon the property.

Plaintiff abandoned the suit as to Smith when the case was called for trial. Plaintiff alone has appealed, and the question involved on this appeal is, therefore, the correctness of that part of the judgment in favor of Borne and the Homestead in refusing to recognize the lien and privilege upon the property.

Section 19 of Article XIX of the Constitution of 1921, which is substantially the same as Article 186 of the Constitution of 1898, provides:

“No mortgage or privilege on immovable property, or debt for which preference may be granted by law, shall affect third persons unless recorded or registered in the parish where the property is situated in the manner and within the time prescribed by law.”

It is well settled that even actual knowledge on the part of third parties does not supply the want of registry of a lien. (American Brewing Company vs. Artigues, 147 La. 155, 84 South. 571.) Plaintiff, therefore, cannot hold the Fidelity Homestead or Borne, or obtain recognition of the lien and privilege on the property unless it can show that the law prescribed a specific time within which this lien must be recorded, and that such lien .was recorded within the time thus prescribed.

Plaintiff relies upon the provisions of Section 2 of Act 139 of 1922 that the material man must record a sworn statement “within; thirty days, after the registry of notice which the recorder of mortgages of the parish where the work is done by the owner, of his acceptance of the work or of the contractor’s default, or the recordation of the architect’s certificate of completion, until which time the delay to file claims of ¡privilege shall not run”. But that section clearly has no application to a case where, as here, no contract has been entered' into for the work of repair or construction of the building. Section 2 and also Section 5 manifestly relate only to cases where the owner has entered into a contract for the repair of or construction of the building. Cases where the owner has undertaken the repair or construction of the building for his own account or where no contract for such repair or construction has been entered into by the owner or governed by the provisions of Section 11 of Act 139 of 1922, which reads as follows:

“Whenever the ow’ner or his authorized agent or representative undertakes the repair, reconstruction, erection or construction of a building or any other work for his own account or for which no contract has been entered into, then any person furnishing services or material or performing any labor on said building or other structure may record in the mortgage office in the parish in which said work is being constructed, a 'certified copy of the building permit, or affidavit of. claim or any other writing evidencing same; which recordation shall create a lien and privilege upon the building or other structure, and upon the land upon which it is situated, as created by this Act, in favor of the said contractor, master mechanic or contracting engineer, and sub-contractors, workmen, journeymen, cartmen, truckmen, mechanics and furnishers of material, as their interest may arise, for the period of one year from the completion or occupancy of the building or other work, which term shall not run pending judicial proceedings.”

It will be observed that Section 2 does not prescribe any time within which the building permit or affidavit or claim shall be recorded, but merely provides that such recordation “shall create a lien and privilege for the period of one year from the completion or occupancy of the building or other work”. This period of one year is not the time within which the lien may be recorded, but is the period during which the lien, when once recorded, remains effective.

In view of the provisions of Section 19 of Article XIX of the Constitution of 1921, and of the fact that Section — of Act 139 of 1922 does not prescribe any time within which liens falling within the provisions of said section shall be recorded, the recordation of a lien which falls within the terms of Section 2 cannot affect persons who have acquired the property subsequent to the period during which the materials were furnished, and who have recorded their titles prior to the registry of any claim of lien by the furnisher of the material unless it be. held that the provision of Section 2 of Act 229 of 1916 requiring registry within forty-five days after the acceptance of the work is still in effect.

In the light of the broad scope of the title and provisions of Act 139 of 1922, and especially the repealing clause thereof, it might be urged that said Act repeals in toto the provisions of Act 229 of 1916. It is, however, unnecessary to decide this question for the reason that even if Act 229 of 1916 was applicable, plaintiff’s claim of lien was not registered within the time required thereby as the claim was not registered until more than forty-five days after the delivery of the last material by plaintiff and until more than forty-five days after the completion and occupancy of the building. (Gleissner vs. Hughes, 153 La. 134, 95 South. 529; Cook vs. Carter, 160 La. —, 106 So. 704.)

The judgment appealed from is correct and it is therefore affirmed.