text:
    No. 9108.
    Orleans Appeal.
    REMEDIAL LOAN SOCIETY, Appellant, v. FREDERICK SOLIS AND ROBERT E. TREPAGNIER. PATRICK J. MORRIS, Intervenor.
    (December 1, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Landlord and Tenant,' Par. 1, 5. ,.
    A contract of lease which either party may terminate on giving fifteen days’ notice does not fix its duration and under Article C. C. 2685 is one by the month.
    2. Louisiana Digest, Landlord and Tenant, Par. 33.
    Holding over after the expiration of each month creates a tacit reconduction from month to month and a new contract for each month.
    (Civil Code, Art. 2689 — Editor's Note.)
    3. Louisiana Digest, Chattel Mortgages, Par. 5.
    A chattel mortgage yields a preference to a contract of lease and to every tacit reconduction thereof made prior to recordation of the amount of mortgage; but enjoys a priority over every lease or tacit reconduction made subsequent thereto.
    Appeal from Civil District Court, Hon Porter Parker, Judge.
    This is a contest for priority between a lessor and a chattel mortgagee.
    Judgment amended and affirmed.
    Legier & Gleason, McEnerny & Waguespack, attorneys for plaintiff and appellant.
    Prank T. Doyle, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a contest for priority between a lessor and a chattel mortgagee.

By an Act of Chattel Mortgage dated April 28, 1922, recorded on the same day, the defendants in this case, Solis and' Trepagnier, mortgaged in favor of A. P. Raymond all the machinery located at 900 Tchoupitoulas Street and 346 Joseph Street to secure the payment of their seven promissory notes each for $200.

The present suit was filed to enforce the payment of said notes by the seizure and sale of the machinery mortgaged.

Patrick J. Morris intervened, and alleged that he was the owner of the premises 900 Tchoupitoulas Street and 346 St. Joseph Street; that he rented said premises to the defendants under a verbal lease at $75.60 per month; that the defendants had failed to pay the rent for the month ending January 15th, 1922, up to the present time, making a total of thirteen months or $982.80 due and unpaid; that the plaintiff in this suit had seized the contents of said premises; that he was entitled to be paid by preference over said plaintiff.

Patrick J. Morris filed another intervention in which he averred that at the time the Chatel Mortgage was executed, on April 28th, defendant was already in arrears four months, January, February, March and April 15th; that he was entitled to be paid by preference the whole amount of rent due to him, $982.80; and he prayed that' the Sheriff be ordered to pay that amount to him, out of the proceeds of sale by preference to the plaintiff

There was judgment in favor of Patrick J. Morris, intervenor, recognizing his lessor’s privilege and right of pledge on the machinery contained in the leased premises and his preference over the plaintiff, and ordering the Sheriff to pay him his rent of $982.80.

The plaintiff appealed.

James Donelson, agent of intervenors, and Fred Solis, the defendant, testify that the properties were rented for $75.60 per month, as stated in the intervention; that the defendant, Solis, had occupied the premises as lessee since 1917; and that the rent is due since December 15th, that is, for the month of January 15, 1923; it was a verbal lease to terminate on '15 days’ notice.

Sec. 4 of Act 198 of 1918, p. 373, reads as follows:

“That every chattel mortgage shall be a lien on the property mortgaged from the time same is filed for recordation, which filing shall be notice to all parties of the existence of such mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

The decisions construing this section have not been uniform.

In the case of Roses vs. Biggio, No. 7904 O. B. 56, this court held that a chattel mortgage was preferred to an artisan' who had repaired an automobile on the ground that the latter had no privilege but only a right of detention.

It went further and recognized the superiority of the chattel mortgage over all privileges subsequently arising.

In the Succession of Watlington, No. 7310 Orleans Appeal, the court said:

“The chattel mortgage granted under Act 151 of 1916, at p. 371, is superior in rank to any privilege arising subsequently thereto, including the widow’s homestead under Art. 3253 of the Civil Code previous to its amendment.”

See also Jefferson Finance Co vs. Lafleur, No. 113,688 City Court, Judge Stentz.

In the case of Lyons vs. Clark Warehouse, Judge Leche of the Court of Appeal of the First Circuit, sitting at Baton Rouge, on December 29, 1922, decided that the lessor’s privilege was superior to the chattel mortgage, although the latter came into existence before the lessor’s privilege attached, on the ground that the lessor’s privilege is of a higher nature than a mere privilege and is a pledge and confers upon the lessor the right to retain the things subject to it until he is paid. C. C. 2705-3218. See Loyola Law Journal, April, 1923.

It was upon that ground, that the lessor’s right was more than a privilege and was a pledge, that the Supreme Court decided that the law did, not require the lessor’s pledge to be recorded under the Constitution of 1868 which required all privileges to be recorded. Johnson vs. Tacneau, 23 La. Ann. 453; Johnson vs. Tacneau, 24 La. Ann. 143.

The Court of Appeal for the Second Circuit, sitting at Shreveport, in the case of Bernhardt vs. Sandel, No. 1775, took a contrary view and decided that the chattel mortgage, which came into existence before the lessor’s privilege, was superior to the lessor’s privilege. Both cases are reported in the Loyola Law Journal of April, 1923, Vol. 4.

But the case of Youree et al. vs Limerick, No. 26,209, not reported, finally decided in November, 1924, settles the jurisprudence.

The issues involved were the question of priority between the lessor’s privilege and the chattel mortgage. The District Court and the Court of Appeal for the Parish of Caddo recognized the priority of the mortgage above the lessor’s privilege, which was in conflict with the decisions of the Court of Appeal for the First Circuit in the case of Lyons vs. Clark, decided in December 22, 1922.

The facts were as follows: The plaintiffs, Youree et al., were the owners of the premises No. 310 Texas Street in Shreveport; they leased the premises to one Yaky. Vaky sold out to Caporal, who became plaintiff’s tenant.

On July 11, 1921, -Caporal borrowed from Papas $4,500, for which he gave his note, due January 30, 1922, secured by a chattel mortgage, duly recorded, on all the contents of the leased premises.

On April 15, 1922, Caporal sold out the business and furniture to Limerick, who assumed the obligations of the chattel mortgage and of the lease and thus became plaintiff’s lessee. Limerick failed to pay the rent. Plaintiffs, in December, 1922, sued Limerick for $1,200 due since October 1, 1922, and for lessor’s privilege.

Papas intervened, claiming $1,50^0 balance due on Caporal’s note of $4,500 with chattel mortgage on the contents of the leased premises superior to the lessor’s privilege.

The District Court gave judgment in favor of plaintiffs, the lessors, for the amount claimed, with lessor’s privilege; but granted Papas a priority over the lessor for the balance of $1,500 due upon his chattel mortgage note.

This judgment was affirmed by the Court of Appeal.

The law of the case is as follows: Act 198 of 1918, Sec 4, p. 372:

“That every mortgage shall be a lien on the property mortgaged from the time same is filed for recordation, which filing shall be notice to all parties of the existence of such mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

Said the court:

“The Act in express terms provides that the chattel mortgage privilege ‘shall be superior in rank to any privilege or lien arising subsequently thereto’. No exception is made; clearly then the word privilege includes the lessor’s privilege.”

No reference is made to the cases in Johnson vs. Tacneau, 23 La. Ann. 453, and Wm. A. Burnett vs. B. B. Cleneay, 24 La. Ann. 143, defining the lessor’s privilege. .

The decision in the case of Lyons vs. Clark was based upon the theory that the lessor’s right was of a higher order than a mere privilege and that it gave the right of detention. But the Supreme Court held that the theory and judgment were wrong.

The Court of Appeal for the Parish of Orleans in the case of Roses vs. Biggio, No. 7904, decided in -May, 1920, that the privilege and right of detention of a workman for repairs upon a movable yielded to a chattel mortgage recorded prior thereto.

Therefore the court said:

“We are therefore of the opinion that the privilege resulting from the execution and recordation of a chattel mortgage takes precedence over and primes a lessor’s lien arising subsequently thereto. And, of course, the converse is also true; that a prior lessor’s lien is superior to a subsequent chattel mortgage.”

But the Court of Appeal misapplied the law and its interpretation of it. It decided that the claim of the plaintiffs was entitled to a privilege only up to the amount due on the date of the recordation of the chattel mortgage; and that inasmuch as the mortgage was dated and recorded on July 13, 1921, and the rent was paid up to October 1, 1922, the chattel mortgage was entitled to a priority for rent becoming due subsequent to July 13, 1921. In other words, the privilege had ceased with the payment of the rent. No rent due, no privilege. But the Supreme Court said that the lessor’s privilege did not arise with the tenant’s failure to pay the rent; but originated and took its birth with the lease itself and reached all property brought .into the leased premises thereafter and existed during the life of the lease. The Court of Appeal was therefore in error in not so holding.

The judgments of the District Court and of the Court of Appeal recognizing the superiority of the claim of the chattel mortgage were set aside, and the plaintiffs’ lessor’s privilege was recognized as superior to the mortgage to the extent of $1,200.

Upon the rehearing there was nothing said affecting the above opinion. The original judgment of the- Supreme Court was reinstated upon the following ground: It seems that in stating the facts of the case the court has assumed that Limerick had assumed the original lease to Caporal. The truth was that, at the time of the sale to Limerick, April 15, 1922, the old lease was cancelled and a new one entered into between the ' plaintiffs and Limerick. But at that sale Papas, intervenor herein, guaranteed that the contents of the premises were free from any claims of Caporal’s creditors. The court held that this was an estoppel which precluded Papas from claiming a priority over the plaintiffs.

The plea of estoppel was maintained and the former decree reinstated.

“In addition to his chattel mortgage the vendor has his vendor’s privilege, which need not be recorded, and lasts as long as the thing sold remains in the purchaser’s possession, and is superior to the subsequent chattel mortgage.” Weiss vs. Hudson, 151 La. 1, 91 South. 525.
“A person accepting a chattel mortgage on personal property takes it subject to all unrecorded liens and privileges existing on the property at the time.” P. 4, Sec.....; also Continental Bank & Trust Co. vs. Succession of McCann, 151 La. 555, 92 So. 55.

In the Youree case there was a lease for a stated time.

But in the case under consideration there is no lease for any period exceeding one month. The lessor and lessee both agree that there was no time specified for the duration of the lease; that each could put an end to their relations by giving fifteen days’ notice.

This was tantamount to a lease by the month.

C. C. 2685 (2655): “If the renting of a house or other edifice, or of an apartment, has been made without fixing its 'duration, the lease shall be considered to have been made by the month.”
2 Orl. App. 85, 4 Orl. App. 365, Paquettel vs. Gauche, 17 La. Ann. 63, 11 Orl. App. 318, C. C. 2689 (2659): “If the tenant either of a house or of a room should continue in possession for a week after his lease has expired without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued and he cannot be compelled to deliver up the house or room without having received the legal notice of warning directed hy Article 2686.” Bowles vs. Lyon, 6 R. 262.

This is called “tacit reeonduction.” S. Dolese vs. C. F. Barberot, 9 La. Ann. 352; Marmiche vs. Roumieu, 11 La. Ann. 477.

But the lease is continued from month to month only. Connell vs. Hill, 30 La. Ann. 255; John Armstrong vs. John M. Bach, 20 La. Ann. 190; Geheebe vs. Stanby, 1 La. Ann. 17; Bowles vs. Lyon, 6 R. 262; 24 Cyc. 1167; 2 Ct. App. 421; 8 Ct. App. 120.

Every continuance is a new contract. 12 Ct. App. 218, 224.

In the language of Article 2690 (2660):

“In the Cases provided for in the two preceding Articles, the security which may have been given for the payment of the rent shall not extend to the obligations resulting from the lease being thus prolonged.”

The chattel mortgage in this case was recorded on April 28, 1922. Defendant’s rent began on the 15th of each month. He owed for December 15, 1921, payable in advance. Considering each monthly tacit reconduction as a new and separate contract, then the five several contracts on December 15, 1921, and on the 15th of each succeeding month, including April 15, 1922, amounting to $378.00, originated prior to the chattel mortgage of April 28, 1922, and are entitled to a priority over it. The other contracts which were formed tacitly on May 15, 1922, and on each ensuing month thereafter subsequent to the recordation of the chattel mortgage, April 28, 1922, are inferior to the chattel mortgage and must yield a priority to it.

It is therefore ordered that the judgment appealed from in favor of Patrick J. Morris, intervenor, be reduced from Nine Hundred and Eighty-two 80/100 Dollars to Three Hundred and Seventy-eight Dollars, and as thus amended that it be affirmed; costs of appeal to be paid, by said Patrick J. Morris.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 1453.
    First Circuit Appeal.
    MRS. SALLY C. BLANCHARD, INDIVIDUALLY AND AS TUTRIX, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY.
    (December 2, 1924, Opinion and Decree.)

      (Syllabtis by the Editor.)

    1. Louisiana Digest, Appeal — Par. 715.
    No provision is made in the Code of Practice to allow courts of appeal to remand cases for a new trial or that defendant be authorized to take testimony in the lower court to prove certain facts alleged in the motion, but it is the duty of all courts to accomplish justice.
    2. Louisiana Digest, Railroads — Par. 58, 60, 62.
    Where a train of 31 freight cars was backing over a crossing without a lookout and the crossing was wholly unprotected by a flagman, the railroad was guilty of gross negligence, which caused a death in an auto collision which resulted.
    3. Louisiana Digest, Railroads — Par. 64, 65.
    The deceased was not contributorily negligent because he did not come to a full stop and cut off his auto engine to listen before going on the railroad track. He had a right to believe that the railroad train crew would have regard for the safety of the public. (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Parish of Allen, Hon. Thomas F. Porter, Jr., Judge.
    This is, a suit to recover damages for death of husband and father in a collision between a train and auto. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Williams and Reid, of Oakdale, attorneys for plaintiff, appellee.
    Pujo and Bell, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Sally C. Blanchard, individually as widow of James M. Blanchard, deceased, and as natural tutrix of Clint and Evelyn Blanchard, her minor children, born of her marriage with the said deceased, brought this action in damages against the Gulf, Colorado & Santa Fe Railway Company on account of his death.

She substantially alleges that James M. Blanchard, her husband, owned and operated an automobile omnibus and while attempting to make a public highway crossing of said railroad in the City of Oak-dale a little after midnight on March 11th, 1923, a backing freight train operated by said railroad company, with a flat car at the end, shot suddenly out of the darkness at a reckless rate of speed and ran over his automobile, crushing it under the car- and that her husband received injuries in the collision from which he shortly afterwards died.

That her husband approached the crossing driving his automobile so' slow that it was barely moving, not going faster than 2 miles an hour, and entirely under his control; that before entering on the crossing he looked up and down the railroad track and listened for the approach of trains and not seeing nor hearing any he entered on the crossing; that there was no light nor lookout at the end of the backing train, nor at or near the crossing, and he had no warning of its approach.

That the railroad company was guilty of gross negligence and carelessness in the operation of said train and that its said negligence and carelessness was the sole proximate and only cause of said collision and of the death of her husband. She claims individually and as tutrix $39,-000.00 damages, with interest.

The railroad company filed an exception of no cause of action, which being overruled it answered, denying the negligence and carelessness alleged by plaintiff and averred that the collision was due solely to the fault of the deceased. Its answer admits that the rear end of the backing train which it was operating collided with the automobile operated by Mr. Blanchard, plaintiff’s husband, and that there was no-light actually on the rear end of the train but avers that the crossing was amply protected by a flagman with a lighted lantern and urged that if defendant was guilty of fault and negligence the decedent, James M. Blanchard, was guilty of contributory fault and negligence in that he did not stop, look and listen before entering on the crossing.

That if he had stopped, looked and listened or had done so at a time and place where the looking and listening would have been effective, he would have seen and heard the approaching train in time to have stopped his automobile and prevented the collision, that his failure to do so precluded recovery by plaintiff.

That said Blanchard was guilty of fault in that he did not look for nor see nor hear the flagman who tried to stop him before he drove upon the track, etc. Judgment was rendered in the lower court in favor of the plaintiff individually and as tutrix for $16,500.00, with interest.

Defendant moved for a new trial which, being overruled, it appealed.

Defendant and appellant has moved this court to set the judgment appealed from aside and remand the case to the lower court for a new trial or that defendant be authorized to take testimony in the lower court to prove certain facts alleged in the motion.

There is no provision for a remand for such a purpose in our Code of Practice; except that all courts have power and authority and it is their duty to accomplish justice and as long as a case is under our control we have that power and to that end such motions are not unknown in our jurisprudence. The motion ' to remand will be considered first.

The ground in the motion to remand that the decedent, while pinned underneath the car, had been heard to say that “he saw the little light” is one of the grounds urged in the motion for new trial. This matter was, therefore, known to defendant previous to the appeal. It was not substantiated on the trial of the motion for new trial by any evidence.

The averment in the motion to remand that the deposition of the'man named Deckler, of Center, Texas, can be obtained in case of a remand; is not coupled with any averment that it could not have been done just as well in support of the motion for new trial or as part of defendant’s testimony on the trial in chief in the lower court.

It would be unreasonable, to remand the case now to give appellant an opportunity to take Deckler’s depositions when it could have done just as well for the trial in the lower court. ‘ Not only that, but the result of a remand for the purpose would be uncertain.

Another ground for the remand prayed for is that Cleveland Conley, witness for plaintiff, testified in the lower court that he had not been charged with any crime; when as a matter of fact he was at the time charged with desertion from the army.

That the court in deciding the case relied largely on his evidence. The record of the War Department annexed to the motion shows that- a Cleveland Conley deserted August 4th, 1921.

This case was tried in the lower court June 11th, 1923, therefore between the date of the desertion charged and the trial there intervéned 2 years and 10 months. According' to the testimony of the witness and that is all the information we' have concerning his whereabouts during this interval of time he has not concealed himself. The motion to remand does not suggest .any reason why he has not been arrested on the charge of desertion. Due to the . lapse of time since the date of the charge and the fact that he has not been arrested on such a charge, and nothing indicates that he has evaded arrest, we incline . to the view that this witness is not wanted by the government on said charge.

Then, again, suppose the witness to be the party charged; the charge is open to investigation, and his declaration that he had not been charged, etc., does not bear directly on the facts testified to by him concerning the merits of the case.

The result of a remand for the purpose of proving the desertion would be uncertain. We do not think the case should be remanded on this account.

Another ground urged in the motion to remand is that the witness, Conley, testified in the lower court that he was with a party at the time of the collision whose name he did not know, who saw the collision, etc.; that he thought the party worked in the shop at Meridian, La.; that the court in deciding the case had largely relied on this witness and his testimony that a party was with him and. saw the collision was untrue, etc.; that diligent inquiry made at Meridian had not located anybody there who had been with the witnéss in Oakdale and seen the collision, etc..

Ah' ex parte report, etc., is annexed to the . motion.

W.e. find that Conley testified on the trial that- a : party came to him at the cafe in Oakdale the night of the, collision and asked to be shown the way out to Meridian through the Bowman-Hicks Quarters; that he got into an automobile with the party and .rode with him to the crossing, where they stopped, witness getting out; that the party said to him while they were together that he had taken the wrong road and two men told him to get out; that very soon after their automobile was stopped the collision occurred and he did not' see the party any more; that the party with him saw the collision, etc.

Defendant could have ascertained from Conley while interrogating him the cafe mentioned by him and made inquiry there if such a party had been seen there or going to or coming from there; could have made inquiry in the quarters of a city of the size of Oakdale and ascertained whether any stranger had been seen in there and required to leave on the night 'of the collision and summoned witnesses in rebuttal, or could have attacked the statements of the witness in a motion for new trial; summoned witnesses and investigated the matter in the lower court.

The report annexed to the motion is not sufficient for any purpose. It would be unreasonable to remand the case in order to give defendant another opportunity to do what could have been so easily done in the lower court. A remand for the purpose might lead to nothing.

Another ground urged in the motion to remand is that the witness, Charles Robinson, testified on the trial in the lower court that John Snowdon was present at the wreck; that defendant had discovered that such was not the case; that the lower court had relied largely on the testimony of this witness, etc. Two ex parte affidavits are annexed to the motion in support of this ground, one signed by a party named Fred Snowdon, who says he also goes by the name of John Snowdon, and that he was,not at the collision; another by a party named Willie Snowdon, who says he was not at the collision. We find that Charles Robinson testified on the trial that he had talked with John Snow-don, the party he mentioned, the day previous to the trial in Oakdale and stated the locality in which the party lived in Oakdale. Defendant could have summoned John Snowdon in rebuttal or could have urged the question of his presence at the collision, as claimed by the witness, in a motion for new trial and summoned the party, etc. Defendant does not show due diligence in the lower court; besides, the result of a. remand for the purpose would be uncertain as to the effect on the testimony of Robinson.

The certificate from the War Department excepted, the reports annexed to the motion do not purport to be investigations personally made by the attorneys for the mover, nor to have been made under their personal supervision. A credit which they are not receiving would have been given thereto had such been done.

The showing made for the remand prayed for is not sufficient.

The motion to remand is refused.

The rulings of the lower court overruling the exception of no cause of action and on the ground that the deceased had while pinned underneath the car been heard to say that “he saw the little light” were correct. Our judgment on the merits will dispose of the motion for new trial on ground that the judgment appealed from is contrary to the law and the evidence.

There is no dispute about the fact that the collision occurred a little after midnight on a frequently used highway crossing of defendant’s railroad in the City of Oakdale. That defendants’ freight train containing 31 cars which had come into Oakdale from the west and pulled east far, enough to get on a switch, was backing west on the switch track at about 4 miles an hour with no lights nor lookout at the end of the backing train; that the forward end of the leading car struck the Blanchard omnibus as it got about half-way over the crossing.

And it cannot be denied that Mr. Blanchard should have stopped and looked and listened and in a way that his looking and listening should have discovered under ordinary circumstances the approach of a nearby train and seen a light or flagman on the crossing if such was there at the time.

Plaintiff claims that the evidence shows that he did look and listen, that the darkness prevented him seeing the nearby train; that it made such little noise as it approached him that it did not attract attention and he, therefore, failed to hear it; that the crossing was wholly unprotected.

Witnesses speak of the night as dark, but it was not too dark for Cornelia Groves, Clarence Landrum and Ernest Ford, occupants of the Blanchard omnibus, to see clouds and stars in the sky, trees and houses on the side of the highway as they passed them on their way to the crossing and the crossing when they reached it.

Mr. Blanchard was driving north on the highway and sitting on the left hand side of the front seat of his omnibus; Cornelia Groves was seated on the same seat with him at his right, Clarence Landrum on the right-hand side of the vehicle near the middle, Ernest Ford on the right-hand side near the rear end. The position in which Mr. Blanchard and Cornelia Groves were seated shows that the front seat faced the way the omnibus was going, from which there being no evidence to the contrary we assume that the other seats faced the same way which caused Clarence Landrum and E'rnest Ford to face the way they were going.

Clarence Landrum and Cornelia Groves testify that when Mr. Blanchard got within about 10 ft. of the crossing he stopped; that his omnibus stood still about 3 minutes, but Ernest Ford says the automobile did not quite stop running; but all say that he drove up to the crossing very slow, so slow that a child could have stepped out of the automobile without stumbling; they estimated his speed at about 4 miles an hour as he came up to the crossing, and they all say that he looked up and down the track and listened before he drove on it.

Cornelia Groves and Clarence Landrum say that they also looked and listened for trains and did not see nor hear any; did not see any light or flagman at the crossing; that nobody hollered at them; according to their testimony there was no light nor flagman at the crossing. They further testified that there were no curtains on the omnibus, that it had glass windows through which they could see; that the 2 front windows were up; some of the others were up; ¿orne were down; that the train struck them as they got half-way across the track, and that they were not aware of its presence until it struck them.

Another witness named Hargrove testified without objection that Mr. Blanchard, while being carried from the wreck to the doctor’s office, stated: “If they don’t put somebody on the crossing there will be more killed ‘than was here tonight,” and that after reaching the office he said: “That there wasn’t anybody -on the crossing and that he didn’t see anything nor hear anything.

Charles Robinson, witness for plaintiff, testifies that he was walking along the highway on the east side of it and on the south side of the railroad and going toward the crossing; that Mr. Blanchard’s truck or omnibus passed him going to the crossing when he was about 100 ft. south of it, and he saw the collision, was looking right at it, that his view was unobstructed, the headlights of the omnibus showing bright. He did not see any light or flagman at the crossing; he did not hear anybody holler at Mr. Blanchard from the crossing, and did not see nor hear the train until it struck the truck. He was not asked whether or not Mr. Blanchard stopped before entering on the crossing and looked and listened; but asked as to his speed at the time he. passed him about 100 ft. south of the crossing says he was going slow, and asked how he went on the crossing says he went on it slow. This witness being on’the east side of the highway, was in good position to see a train, on the same side backing toward the crossing, if any could be seen or heard.

Cleveland Conley, witness for plaintiff, testified that he saw the collision from the north side of the railroad at a distance of 15 or 20 ft. from the crossing. He had just driven up to the crossing in an automobile with another party; their automobile went dead, the party he was with and himself both got out; the party he was with started to crank his automobile when he noticed Mr. Blanchard coming and stated he would wait until he had passed. Witness says as soon as the automobile he was in stopped running and he got out of it he noticed the box cars backing toward the crossing some distance away; he then noticed Mr. Blanchard coming about 20 ft. distant from the crossing and turning his eyes saw about the same time the leading flat car about the same distance from the crossing and repeatedly says that in a second afterwards the collision took place; that he did not see nor hear the flat car until a moment before the ■ collision. •

His view . was ' unobstructed; the headlights on Mr. Blanchard’s omhibus as' it approached showed bright; the evidence does not enable us to say whether witness was on the east or west side of the highway.

He was not asked whether Mr. Blanchard stopped, looked and listened before entering on the track, but was asked whether Mr. Blanchard’s truck was going slow or fast as he ' approached the crossing, and answered that he approached it very slow and drove 'on it running slow, about as slow as a Ford car will run, which he estimated at about 4 or 5 miles an hour.

It was incumbent on plaintiff to show that Mr. Blanchard stopped and looked and listened for a time . and in a way that under ordinary circumstances the near-by train would have been seen or heard; no matter whether the railroad company took precautions to protect the crossing or not.

The positive statements of Cornelia Groves and Clarence Landrum that he did stop, about 3 minutes, is not entirely negatived by Ernest Ford that he did not quite stop running; nor' by the testimony of Charles Robinson and Cleveland Conley, who were not asked the direct question and their general statements rather indicate that they could not have stated exactly either way. We are satisfied from the evidence that he came to a full stop, but certainly if he did not come to a full stop he had, according to the evidence, his automobile running so slow as he came •up to the crossing that it was entirely under his control and could have stopped almost instantly, and that his approach was ■ so slow that he ■ was enabled to look up and down the track and listen before he entered the crossing, and actually did so. The evidence shows that his view was unobstructed except by the darkness., We are satisfied, that the end of the back ing train, a low flat car, then a coal car, then a flat car, then a box car leading in the order named, with no light nor lookout on the end of the leading car, moving slowly in the dark not .over five miles an hour, the locomotive about 1000 ft. away was not conspicuous to the occupants of Mr. Blanchard’s truck, like a box car would have been had it been at the end of the train or the trees and houses on the side of the highway as they passed theip, nor the graveled crossing as they came up.to it. Charles Robinson, about 100 ft. south of the crossing and on the east side of the highway, did not see nor hear it until it struck Mr. Blanchard’s truck. The automobile in which the witness, Conley, was riding had stopped, its engine had died and he had gotten out of it, yet he did not see nor hear the flat car ahead of the box car until it had come within about 20 ft. of the crossing and only a second before the collision.

If Mr. Blanchard had stopped his truck, killed his engine.and gotten out of it when within 20 ft. of the track he would, no doubt, have heard and seen the flat car as soon as Sid the witness Conley, but ordinary prudence and caution did not require him to stop his automobile, kill his engine and get out and then look and listen before attempting the crossing. The Stop Law was not in force at that time.

Seated in his automobile, his engine running, although within about 20 ft of the track, the nearest box car some 70 ft behind the nearest and leading flat car, moving in the darkness as slow as stated, with no light on the - leading car; the leading flat car was invisible to him and did not .make enough noise to attract his attention, and in the absence of a light or flagman at the crossing, he no doubt believed and had the right to believe that the crossing was safe.

Defendant admits in its answer that there was no light at the end of the backing train but avers that the crossing was amply protected by a flagman with a lighted lantern.

The burden of proof is upon the defendant to establish this defense.

Defendant’s principal witness is Henry West.

This witness was a brakeman on the train, and testified that he was at the crossing and, seeing Mr. Blanchard’s automobile coming up at about 25 or 30 miles an hour, he waved his lantern on the crossing, hut Mr. Blanchard did not stop but came on and he then hollered at him and was forced to step back on the south side to keep the automobile from hitting him. That immediately upon the collision he ran around the end of the train and flaged the engineer with a washout signal.

Will Stephenson, the other brakeman, witness for defendant, testified that he heard Henry West holler and turned around, looked back and heard him flag across the dirt road Stop! Stop!; that he saw the lights of the automobile, 25 or 30 ft. from the crossing, coming on not under 15 miles an hour, and it kept on coming until it was hit. That he was 7 or 8 cars from Henry at the time, or about 100 yards from the crossing, but he afterwards modified his statement.

Garland Sullender, conductor on the train, testified that he saw Henry West blocking in the middle of the track and after the lights of the approaching automobile came at him he gave the emergency signal to' stop. That West stayed at the crossing until the automobile was hit, etc.; that he heard West holler from the middle of the crossing, saw him giving signs, saw him give the washout signal to the engineer.

R. B. Marshall, engineer, testified that he had backed his train about 120 ft. before he saw the washout sigpal and that when- he got it he threw on the brakes, the signal calling for the emergency brakes.

The testimony of Henry West that Mr. Blanchard’s automobile came up to the crossing running about 25 or 30 miles an hour is weakened by E,. O. Davion and Ben Hargrove, who testify that the Blanchard truck was worm-driven and not capable of making over 18 or 20 miles an hour. His statement that immediately after the collision he ran around the end of the train and gave the washout signal to the engineer is weakened by witnesses for plaintiff and defendant, as follows:

Will Stephenson, the other brakeman, testified that about 4 cars passed the crossing after the collision.

Mr. Sullender, the conductor, says that the train backed over the crossing “not much over 4 miles an hour.”

Charles Robinson says that the train drove the Blanchard automobile about 4 car lengths west of the crossing before it stopped.

Curtis Johnson says that it was about 70 yards from the crossing to the place where the end of the flat car with the automobile under it was stopped.

Cleveland Conley said that the train backed over the crossing about like a man goes when he walks real fast; he estimated the speed at about 4 or 5 miles an hour.

R. B. Marshall, engineer, says he had backed the train about 120 ft. at the time he got the washout signal; that he applied the emergency brakes as soon as he got it, etc.

It is not contended that the engineer was not on the lookout or dilatory in getting the washout signal and stopping the train.

It, therefore, appears to us that Henry West did not run around the end of the train immediately after the collision and give the washout signal, else the slow-moving train would not have continued backing for about 4 car-lengths west of the crossing after the collision but would have stopped under emergency brakes almost immediately they were applied. We conclude that he was not at' the crossing at the time 'Of the collision; that he saw the collision some distance away and ran around the end of the train and gave the signal as soon afterwards as he could.

Our conclusion finds support in the testimony of the witness Conley who testified that he saw a man with a dim lantern about 30 ft. east of the crossing and on the north side of the railroad just before the collision and that “after the train had stopped” he saw two members of the train crew come from east of the crossing to the place where the automobile was under the end of the train and that one of them was • a negro with a lantern. The whereabouts of the brakeman West at the time of the collision, is strongly disputed by plaintiff and defendant.

The witness Conley appears to be the most definite witness on the subject. He is reported as saying in one place on cross examination; transcript, p. 137:

Q. This brakeman you saw was on the south side of the train?
A. Yes Sir.

We regard this answer as inadvertent because previously and subsequently in answering questions about the matter; put in a way in which his answers were bound to be intentional, he says he was on the north side and that he saw a man with a dim lantern on the same side about 30 steps east of the crossing which we take it was the brakeman West: See his testimony transcript, pp. 129; 13Q; 132; 137; 144; 145; 148. His testimony on pages 144 and 145 is as follows. Re-direct page 144.

Q. In regard to where this man was standing at the time of the collision was he standing on the side you were on or on the other side?
A. The side I was on. Question by the court.
Q. Was the train between you and him?
A. No Sir.
Q. When you saw him had the train backed up toward the west until it had got even with him?
A. He was about 5 or 6 cars down from the end, from the end of this flat car down away from the track.
Q. When you saw him?
A. Yes Sir. Re-direct.
Q. The same side you were on? .
A. Yes Sir.
Q. Do you know where that south stand is down there?
A. Yes Sir.
Q. How far is that switch stand from the crossing?
A. I don’t know Sir.
■ Q. Was he any where near that switch stand ?
A. The switch below the crossing. He was crossing over it at a little space from the track, the’ man with the lantern had just walked off from the track. He was standing off when I saw him.
Q. Were you on the north side of the track or on the south side?
• A. On the north side.
Q. Which side was he on?
A. North side.
Q Which direction from the crossing?
A. East of the crossing.
Q. When you went to see Mr. Blanchard when he was under the truck, what did you say on cross examination about the man with the lantern?
A. I saw a negro with a lantern go up there.
Q. Was that the same man you saw with a lantern up the track?
A., I suppose it was.
Q. Was he a white man or a negro?
A. A negro. Transcript p. 145.

The witness Conley apparently has no interest in the case and his answers are very straightforward throughout.

He places Henry West on the north side of the railroad and east of the crossing at about the time of the collision.

The testimony of defendant’s other brakeman Stephenson that he heard . Henry West holler and turned around, looked back and heard him flag Stop-Stop across the dirt road is deprived of weight in our estimation by his further statement that he was 7 or 8 cars from the crossing at the time because even if Henry West was on the south side of the track as he claims he could have seen at that distance the lighted lantern if he had one, but he could not possibly tell at that distance say about 100 yards whether Henry West was at or near the crossing at the time.

A like situation operates against the weight of the testimony of the Conductor when he says that brakeman West stayed at the crossing until the automobile was hit, that he saw West blocking in the middle of. the crossing, etc., heard him holler, etc., because he says he was about 15 car lengths down the track from the crossing at the time, that is about 200 yards and if we suppose that Henry West was on- the south side of the track' at the time,, the same side he was on; he could have seen a light in the lantern which West had; hut he could not possibly at such a distance know nor see through the darkness whether Henry West was at the crossing at the time or close thereabouts.

We have not found such weak points in the testimony of plaintiff’s witnesses. The switch east of the crossing and over which . the backing train came from the main line, was lined up, supposedly by Henry West.

This switch stand according to J. C. Reed, defendant’s civil engineer, is 11 ft. east of the crossing, but the clear proof that the train had backed only about 120 ft. when the emergency stop signal was received upon which it was stopped, no doubt almost instantly; the distance 120 ft. being about 4 car lengths, the distance that the train going about 4 or 5 miles an hour backed west of the crossing after the collision renders it incredible that the stop signal was given from this switch stand or from the crossing 11 ft. west of the same.

The district judge heard the testimony of Cleveland Conley, Charles Robinson and that- of the two brakeman and the conductor and has furnished us with his observation on that subject. We have reached a similar conclusion concerning the facts of the case. He also visited the crossing.

In Cherry vs. R. R., 121 La. 471, 46 South. 596, a freight train backing in the day time over a highway crossing in the town of Minden ran over a wagon drawn by a mule. The court held; pp. 478. “One who on a public highway approaches a railroad track and can neither hear nor see any indication of a moving train is not chargeable with negligence in assuming that there are none sufficiently near to make the crossing dangerous.”

In Holstead vs. R. R., 154 La. 1097, 98 South. 619, a freight train backing in the day time over' a street crossing in the town of Ruston collided with an automobile which had entered on it without first coming to a full stop; said p. 1100; “Our conclusion is that every one — upon approaching a railroad crossing or any other place of known danger. should so regulate his conduct as to be free from fault. If one can sufficiently see that the way is clear for him to pass without danger, he is justified in going on without stopping, but if the view is obstructed, he should approach cautiously until a view may be had.”

In Aymond vs. R. R., 151 La. 184, 91 South. 671, a train backing in the night time over a street crossing in the City of Alexandria ran over a messenger boy who had ridden a bicycle on the crossing without coming to a full stop; the court says, pp. 86, 87: “The night was dark, the crossing unguarded and poorly lighted. The train was backing without a light ahead to mark its presence and without a lookout preceeding it to give warning of its approach. The locomotive was several hundred feet to the rear, where the noise of the exhaust and whistle bell could be no indication that the dark and silent lead car was in motion.

This we hold to be gross negligence.

As to the obligation to'stop before crossing a railroad track, that must not be accepted literally as to require a person upon approaching a railroad to come at once to a' position of absolute immobility, but common sense and common practice both indicate that it will suffice for such person to have his own motion so checked and under control that he may instantly stop if need be.”

In Kramer vs. R. R., 144 La. 57, 80 South. 198, a train backing in the night over a street crossing in the City of New Orleans ran over a policeman who was endeavoring to cross the street on foot. The court said pp. 61, 62: “Although the backing of a railroad train through a city and over street crossings at night is not of itself such negligence as should render the railroad company liable for any accident that may result; it is an operation of sufficient danger to, the public to require the railroad company to maintain all reasonable safeguards, ' 'such as having a bright light on the forward end of the train and a lookout there in position to warn a person of danger. The defendant did not fulfill that duty to the public.”

In Maher vs. R. R., 145 La. 733, 82. South. 872, a freight train backing in thé night over a street crossing in the City of Baton Rouge ran over a man who was attempting to cross the street on foot. The court said pp. 738: “Our opinion is that it was gross negligence not to have a flagman on the crossing or a bright light or lookout on the rear end of the train under the circumstances. He had the right to believe and to act upon that belief that the railroad company and the train crew would have some regard for the safety of the public.”

In Clement vs. R. R., 148 La. 1050, 88 South. 394, a train backing in the night over a street crossing in the City of. Alexandria collided with an automobile. The facts are so similar to the facts in the present case that .the cases are almost alike in. that respect. A clause in the syllabus reads: “Where a train is backing at night over a crossing the gates of which are out of order with no light or lookout on the rear end of the train, the blowing of a whistle when the engine is more than 8 car lengths from the crossing is not sufficient warning of danger at the crossing.”

In this case we are satisfied that the crossing in question was wholly unprotected; that defendant was guilty of gross negligence in not protecting it and' that its negligence in that respect caused the death of plaintiff’s husband and renders it liable to her individually and as tutrix for the damages she and her children have thereby sustained.

We have considered the amount which she should recover on said account. We find the judgment appealed from correct in every respect. It is therefore ordered adjudged and decreed, that the judgment appealed from be and the same is. hereby affirmed; defendant and appellant to .pay the cost in both courts.


author: MOUTON, J.

text:
    No. ........
    First Circuit Appeal.
    FRANCIS VALLEY v. BENJAMIN E. CAU-SEY AND ERNEST M. FLOYD.
    (December 2, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana‘Digest, Landlord and Tenant. Par. 100.
    Where under Code of Practice, Article 287, a bond is made to release the property- Held under provisional seizure, for rent, the bondsmen are liable for the value of movables seized which were not returned. This, of course, only where there is proof of actual value.
    Appeal from the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.
    This is a suit against the surety on a release bond in a provisional seizure for rent and purchase price. There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    C. V. St. Amant, of Donaldsonville, and C. T. Wortham, of Donaldsonville, attorneys for plaintiff.
    Walter Lemann, of Donaldsonville, attorney for- defendant.
   MOUTON, J.

Plaintiff, in Nov., 1920, sued L. Dexter Floyd, as his lessee, for rent of a farm, obtained a provisional seizure- of two plows, of a black horse, a .bay- horse, three mules, one wagon, one lot of corn, three cows, two calves, eleven hogs, one lot of chickens, 30 or 40 in number, one buggy, a lot of cotton, about one and half bales, situated on the property leased. The amount of $1000.00 was claimed for the rent. He also alleged that he was. entitled to a privilege of $350.00 as vendor of three, mules he had sold to the lessee. He accordingly prayed for the recognition of his lessor’s lien, and vendor’s privilege in 'the. amounts above stated.

All of the movables above described, including the mules on which the vendor’s lien rested, were seized under the provisional seizure. The defendant, L. Dexter Floyd, had the property released under a forthcoming bond executed Nov. 20th, 1920, which was signed by Benjamin Causey and E,rnest M. Floyd, as sureties.

Thereafter, Jan. 6th, 1922, judgment was rendered against defendant in the sum of $430.00, with interest for rent, maintaining the provisional seizure, and ordering the sale of the property seized thereunder; also recognizing the vendor’s lien on the mules.

The present suit, as indicated by the title, is against the sureties on the release bond.

Of the property provisionally seized above described the following: 2 plows, 1 black horse, 1 bay horse, 3 mules, 1 wagon, 3 cows, and 2 calves, were appraised and sold by the sheriff.

Out of the proceeds of the sale, the sheriff realized a sum sufficient to pay the costs of court, and to turn over to plaintiff $361.69, which was applied to his judgment. Plaintiff claims that he obtained judgment against his lessee for $805.00 and that applying the sum he received from the sheriff, as aforesaid, leaves a balance of $509.68, due him by the bondsmen, Benjamin E. Causey and Ernest M. Floyd, defendants herein.

The original suit was brought against the lessee by plaintiff, lessor, the property was seized under the writ of provisional seizure therein issued, and the bond was furnished to release the property from that seizure. This suit is brought on the bond which was assigned by the sheriff to plaintiff, as alleged. This bond for the release of the property having been furnished in a suit by a lessor in an action for rent, must be tested under Article 287, Code of Practice, as. was pointedly held in Honeycutt vs. Whitten et al., 152 La. 1045, 95 South. 216.

Plaintiff in his petition alleges that L.. Dexter Floyd, the lessee, delivered to the sheriff the property bonded “with the exception of one black mule named “Stella”, which had died since the bonding of said property; one lot of cotton, about one and one-half bales; one lot of chickens, about 30 or 40; one lot of hogs, eleven in number,' and one buggy.”

The court in Honeycutt vs. Whitten, 152 La. 1045, 95 South. 216, said that where part of the property bonded is produced and returned to the sheriff, plaintiff is entitled to judgment on the bond for the difference between the amount of the bond and the appraised value of the property. In the instant case, the sheriff appraised some of the movables which had been bonded, above referred to, but did not appraise the movables which plaintiff herein claims were not produced or returned.

Hence, the case is not to be determined by the rule governing under article 287, C. P., as interpreted by the court in the case above cited.

The question presented for decision is, therefore, as to whether or not the bondsmen -are responsible for the value of the movables plaintiff alleges have not been returned.

Plaintiff alleges that the mule Stella was dead. The proof shows she died, apparently, of old age, a natural death. As lessee was, therefore, not at fault in not returning this mule, the sureties are not responsible for its value. Thirty or forty chickens were released under the bond, but it appears that some had died and it is not shown how many were on the premises when the sheriff demanded the delivery of the property, nor is there any proof of their value. The same condition exists as to the hogs. In the absence of such proof it is impossible for the Court to fix a value for the chickens and hogs. As to the- buggy, it was broken, dilapidated, and was practically valueless. The lot of seed cotton was likewise without value. There was a bale of cotton on the place which was not returned by the lessee. It was appraised by the witnesses at an amount ranging between $65.00 and $75:00. The lower court rendered judgment against defendants, sureties, for $68.51, and "Which was a fair value for the cotton. This, we find, is about the extent of their liability under the proof.

Right is reserved to plaintiff to sue for hogs and chickens.

Judgment affirmed.


text:
    No. 5275.
    First Circuit Appeal.
    MRS. SUSIE E. ANDING. v. THE TEXAS & PACIFIC RAILWAY COMPANY.
    (December 2, 1924, Opinion and Decree.)
    (See 158 La. 412, 104 South. 190)

      (Syllabus T>y the Editor.)

    1. Louisiana Digest, Pleading — Par. 77.
    Where plaintiff files a supplemental petition without obtaining “leave of court” as required by Code of Practice, Article 419 making the “Receivers of the T. & P. Railway,” the defendants; the service of' the supplemental petition and petition and citation is not sufficient to interrupt prescription because “leave of court” was not obtained.
    2. Louisiana Digest, Prescription — Par. 192; Citation and Appearance — Par. 6‘.
    Where there is no prayer in the petition that the “Receivers of the T. & P. Ry.” be cited in the capacity of defendants to answer and where 't'he're is nothing in the petition to indicate that the “Receivers of the T. & P. Ry.” injured the plaintiff;' a citation on “Receivers of the T. & P. Ry.” will not interrupt prescription.
    (Code of Practice, Arts. 178, 179 Editor’s note.)
    3. Louisiana Digest, Citation and Appearance — Par. 30.
    The sheriff’s return on a citation that he “served -a copy of the within citation and accompanying petition etc,” where there were two petitions is insufficient.
    Appeal from the Twenty-seventh Judicial District, Parish of Assumption, Hon. Sam A. LeBlanc, Judge, on petition for rehearing hy plaintiff and appellant.
    This is a damage suit against the “Receivers of the T. & P. Ry.”
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
   ELLIOTT, J.

Plaintiff petition for rehear-in the above case has been considered very closely and many cases examined in connection therewith. The cases Satterley vs. Morgan, 33 La. Ann. 846; Schwartz vs. Lake, 109 La. 1081; 34 South. 96; Gueble vs. Town of Lafayette, 118 La. 494; 43 South. 63; Babin vs. Lyons Lumber Co. 132 La. 873; 61 South 855, appear to be the most pertinent to the question whether the prescription of one year was interrupted against the Receivers of the Texas & Pacific Railway Company by plaintiff’s 1st supplemental petition and the citation issued and service made pursuant thereto.

Plaintiff’s 1st supplemental petition does not purport to amend the original petition; except to say that the Texas & Pacific Railway Company was in the hands of Receivers at the time her cause of action accrued and was still in their hands.

If her 1st supplemental petition had alleged that the Receivers had injured her and her original petition had been annexed thereto and made part thereof, the citation of the Receivers prayed for and judgment asked for against them, the original suit would have been changed to a suit against the Receivers, which plaintiff could d.o without leave of the court. Plaintiff did not do this; yet she can not amend her original petition so as to proceed on it as amended without “leave of the court” C. P. Art. 419; Trahan vs. McMannus, 2 La. 209; Baines vs. Higgins, 2 La. 220; James Callaway vs. Benjamin Webster, 1 R. 553; Tullos vs. Lane, 45 La. Ann. 333; 12 South. 508, and she did not obtain the leave of the court nor leave of the Receivers to amend; therefore her case depends on her 1st supplemental petition as being a suit against the Receivers.

In connection with the question we are considering the language found in the McCubbin vs. Hastings, 27 La. Ann. 713, to the effect: “That demand is the test and not the sufficiency of the allegations which support it;” does not apply because in that case there was a demand against the party against whom judgment was sought. In this case plaintiff’s 1st supplemental petition prays that said Texas & Pacific Railway Company be cited through said Receivers to appear and answer said original petition and this supplemental petition and for judgment against said defendant railway company and against its said Receivers as such; but there is no allegation in either petition to the effect that plaintiff was injured by the Receivers. We do not regard her prayer for judgment as one against the Receivers in the capacity of defendants who had injured her as they are not alleged to have done so. Nor does she pray that the Receivers be cited in the capacity of defendants to answer for any injury they have done her.

Another matter; the citation on the demand of her 1st supplemental petition is addressed to the .“Texas & Pacific Railway Company through John L. Lancaster and Charles L. Wallace, its receivers, etc. As the Receivers are not alleged to have injured. plaintiff we do not regard this as a citation to them to appear and answer on account of same.” C. P. Arts. 178 and 179.

The citation in question says — -“to comply with the demand contained in the petitions, of which a certified copy accompanies this citation or deliver your answer to the petitions.”

The sheriff’s returns on this citation that he “served a copy of the within citation and accompanying petition on the Texas & Pacific Railway Co. through J. L. Lancaster and C. L. Wallace its receivers by leaving same in their office in the hands of chief clerk.

We do not regard this return as showing service on the Receivers in the capacity of defendants, etc., and it cannot be said from the face of the return whether the sheriff served a copy of the original petition or a copy of the supplemental petition; the language does not imply that he served by one. It would require an amended return to show the truth and facts.

The result should a hearing be granted, the' judgment appealed from set aside and the case remanded with instructions that the sheriff be permitted to amend his return so as to show the truth and fact has been considered.

We have concluded that after all; an interruption of prescription as against the Receivers would not be shown under the law and that our opinion herein handed down affirming the judgment appealed from is correct and should therefore stand. •

It i,s therefore ordered that the rehearing prayed for by plaintiff and appellant be and the same is hereby refused.


text:
    No. 6843.
    First Circuit Appeal.
    SAM MAGGIO OR SALVATORE MARCHIFAVA. v. COL. A. T. PRESCOTT.
    (December 2, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Obligations — Par. 144, 170.
    Where ,A contracts with B to re-surface by placing gravel and ' shell and fix gutters on a drive or street in such a' manner that the water will drain properly; and upon completion of the work, the water does not drain properly; held that A cannot recover on his contract but is entitled to a quantum meruit of the sum that B has been benefited by the placing of gravel and shell on the street.
    2. Louisiana Digest, Appeal — Par. 626.
    Where there is conflicting testimony as to a verbal agreement .to improve certain streets free in order that the contractor may obtain other improvement work; the judgment of the trial court as to the credibility of witnesses not being erroneous is affirmed.
    Appeal from the 22nd Judicial District, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to recover the price of improvement work on streets. There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

The plaintiff Sam Maggio or Salvatore Marchifava sues to recover of defendant A. T. Prescott $457.00 with interest as follows:

In Art. 2 of his petition he alleges that $232.22 of the amount is due him under a verbal contract with defendant to place and grade a car of gravel in Lucilla Drive for $3.40 per cubic yard and in Art. 3 he avers that he placed the gravel and that the gravel and service amounts to $232.00. He avers in Art. 4 that acting. under said agreement he fixed the gutters in Lucilla Drive for $35.00 and moved a culvert for $3.00 amounting in all to $270.00 for work done in Lucilla Drive.

In Art. 5 he avers that he had under agreement with defendant fixed for him a lane called Bungalow Lane and had been paid $457.00 for that work and then acting under a further verbal agreement with defendant he cut, fixed, shelled and graveled other drives for which he was to receive $3.40 for each cubic yard of shell and gravel used; that he used in that additional work $187.00 worth of shell and gravel which with the amount due on account of Lucilla Drive makes the $457.00 claimed in this suit.

Defendant denies plaintiff’s allegations and avers on his part with reference to Lucilla Drive that plaintiff agreed to resurface and raise it sufficient to ensure proper drainage, correct the existing drainage so that the water would run off properly; finish off the gutters on each side and do all that was necessary to give defendant a finished street with proper drainage for $224.00 to be paid when the job was completed and accepted. That plaintiff had failed to carry out his undertaking. That the drive was not properly re-surfaced and built up so that it would drain properly; that it did not correct the drainage as agreed; that the work done was worthless to defendant.

In regard to the 2nd item claimed by plaintiff concerning additional drives after the work of Bungalow Lane had been done: defendant avers in his answer that he owes plaintiff nothing on that account; that plaintiff offered and undertook tó do that work without charge and as an inducement to obtain from defendant the job of grading and gravelling Bungalow Lane: that he owed plaintiff nothing on either of his demands. Judgment was rendered in the lower court refusing plaintiff’s demand as to both counts and he has appealed.

The plaintiff testifies that he graded and filled Lucilla Drive and established gutters and as to the drainage, he does not claim that the water does not stand on the drive and in the gutters after rains; but contends that his work was all right; that the drive needs maintenance and the gutters cleaning. Plaintiff contends that the trouble is not with his filling and drainage system but that defendant permits trash, leaves and loose gravel and shells to accumulate in the gutters and fill them up, preventing the drainage through them.

It is established by the evidence of the defendant and the other witnesses called by plaintiff that the drive in question has not been drained as a result of plaintiff’s undertaking.

The drainage of Lucilla Drive was defendant’s primary and principal purpose in having the work done and plaintiff understood that such was the case because he guaranteed to accomplish it if given the job and for which he was not to be paid by the quantity of gravel used but undertook the job for a lump sum.

Plaintiff admitted every time he was asked the question that he had guaranteed proper drainage if given the work.

The following is quoted from his testimony; note testy, pp. 54 & 55.

Q. Now your contract with Col. Prescott was to drain it properly was it not?
A. Yes, sir; to give him a surface that will drain.
Q. Proper drainage?
A. Yes, sir.
Q. You undertook to do that didn’t you?
A. Yes, sir, like the contract called for.
Q. You' guaranteed to get drainage there didn’t you? good drainage?
• A. Yes Sir, when I would get through I guaranteed good drainage. I told him that.

We are satisfied from the evidence the defendant says over and over, without any evidence to the contrary that. Lucilla Drive does not drain properly and did not immediately after plaintiff quit work on it as completed. That from the first, water stood on the drive and in the gutters after each rain, without flowing off and it is evident that further work of grading, filling and guttering must he done; otherwise conditions as to drainage will remain as they are until it is done.-

The contract did not contemplate concrete; or cement gutters or finishing, but plaintiff undertook the job of giving defendant good drainage and his grading, filling and guttering has not accomplished his undertaking. The drive is narrow; the fall slight and careful grading and filling is necessary to give proper drainage.

Plaintiff is not responsible for obstruction to drainage caused by automobiles running in the' gutters; nor for obstructions to the drainage caused by falling ' leaves, trash, shell and gravel; that is a matter of maintenance but the evidence shows that the work done did not accomplish the undertaking; regardless of the leaves, trash and things sliding in the gutters; for the reason that immediately after the first rain following the completion of the work; the water stood in the drive and in the gutters. The fault appears to be with the plaintiff’s work and he can not compel defendant to pay him for a job done under a guarantee; when the job as done does not accomplish the undertaking.

The lower court rejected his demand on account of Lucilla Drive finally he sues on a contract and can not recover on his present demand, but Lucilla Drive needed filling at the time of his undertaking and by authority of defendant he undertook the job of doing it. He has not done it properly, sufficiently nor well but the gravel he placed in it is bound to help to that end. Defendant ought to pay as á quantum meruit a sum equal to the sum he has been thereby benefited by the filling.

We would fix the amount in this suit if we could; but plaintiff has sued on a contract which he has not established, an undertaking by the job, which he has not accomplished. The record shows the sums he paid for shell and gravel shipped him; but there is no evidence nor offer of any to show that defendant has been benefited to any certain sum or amount by the gravel regarded as a help toward building up and elevating the drive. Justice requires that this question be left open to plaintiff, but in all other respects the judgment appealed from is correct.

As for the other item claimed in plaintiff’s petition on account of shell' and gravel used and applied on drives after he had finished his work on Bungalow Lane; defendant testifies that plaintiff agreed, undertook to do that work shell and gravel it just as he had done Bungalow Lane, as an inducement to be given the job of shelling and graveling the lane above mentioned. Plaintiff admits that he undertook to do the grading as an inducement for the job mentioned but alleges and testifies that he understood and supposed that he would be paid for the gravel and shell used in the work. Plaintiff advances his understanding and supposition and against it; defendant states that plaintiff agreed to do it; fix these side drives just as he had fixed Bungalow Lane; which meant that he was to shell and gravel them just as Bungalow Lane was shelled and gravel-led. The burden of proof is on the plaintiff to- prove his right to recover. According- to defendant he has no right to recover.

The lower court rejected plaintiff’s demand on the ground, of course, that he did not feel satisfied that plaintiff had established his right to recover under the evidence upon the subject.

We agree with the lower court that under the evidence in regard to this item of plaintiff’s demand he has not carried the burden of proof and the judgment appealed from will, as concerns this item, be affirmed. It is therefore ordered adjudged and decreed that the judgment appealed from be affirmed; except as regards a quantum meruit equal to the sum which defendant has been benefited by the gravel and shell used by plaintiff in filling and elevating Lucilla Drive, the value of same as a filler is to be left open and without prejudice to a recovery by.plaintiff against defendant on that account; but in all other respects the judgment appealed from is affirmed. It is further ordered that the plaintiff and appellee pay the cost of both courts.


author: LECHE, J.

text:
    No.............
    First Circuit Appeal.
    SOUTHERN HIDE & SKIN COMPANY v. H. STEIN & COMPANY.
    (December 2, 1924, Opinion and Decree.)
    (December 30, 1924, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Sales — Par. 69, 134; Damages — Par. 75.
    Under Article 2456 of the Civil Code “the sale is considered to be perfect as soon as there exists an agreement,” etc. Hence, when the purchaser refuses , to accept at destination a carload of hides weighed, inspected and loaded in the presence of an agent of the purchaser at shipping point, the purchaser is liable for the resultant damage to the seller.
    (Civil Code, Arts. 1930 and 1934. Editor’s note.)
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to recover damages for breach of contract.
    There was judgment for- plaintiff and defendant appealed.
    Judgment affirmed.
    Taylor & Porter, of Baton Rouge, attorneys for plaintiff, appellee.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Both plaintiff and defendant are engaged in the business of selling beef hides, the former being domiciled at Jacksonville, Florida, and the latter at Baton Rouge, in this State.

The plaintiff is Charles H. Maun who does business under the title of Southern Hide & Skin Co., and defendant is H. Stein who does business under the firm name of H. Stein & Co.

On or about November 20, 1922, defendant bought two carloads of hides from plaintiff. The sale was consummated at Jacksonville, Florida, the plaintiff acting through its manager and defendant acting through J. A. Carlton.

The authority of Carlton to act in behalf of defendant far from being questioned is admitted by defendant Stein, in his testimony.

The hides were inspected by Carlton, weighed and loaded in his presence, and the cars were sealed and, pursuant to agreement, were consigned to plaintiff at Baton Rouge, La. Two separate bills of lading were issued, marked “shipper’s load and count.” Whereupon Carlton drew two drafts each draft covering the price of the contents of one car, both drafts were drawn upon defendant, to the order of plaintiff and were attached to the respective bills of lading forwarded to a bank in Baton Rouge, where, upon their payment by defendant, the bills of lading were to be 'delivered to him. The cars reached Baton Rouge in due course, and upon being notified of their arrival, defendant went to the bank, took up one draft and accepted delivery of the contents of the car identified by the attached bill of lading.

Defendant then notified plaintiff that one of the seals on the other car had been changed, he made various propositions to plaintiff, with a view of abrogating the sale and entering into a new arrangement and refused to pay the other draft or accept the contents of the other car, described in the attached bill of lading, as he had done in the case of the car previously accepted by him. Plaintiff disclaimed any responsibility for the change of a seal on the unaccepted car and negotiations which in our opinion, can have no bearing upon the merits of this controversy, were unsuccessfully attempted by defendant with a view of entering into some new or additional agreements. Plaintiff was compelled to send an agent to Baton Rouge to dispose of the contents of the car, to the best advantage, and he brings this suit for the damages which he has suffered as a result of the non-payment of the draft which Carlton had given him on defendant.

Defendant denies liability but the amount of damage claimed by plaintiff, some $956.43, is not seriously disputed.

The District Court rendered judgment in favor of plaintiff, as prayed for, and defendant appeals. .

In our opinion, the hides contained in the unaccepted car, became the property of defendant as soon as they were counted, weighed and accepted at the price previously agreed upon and before the car left Jacksonville. The sale was completed at that place. It is true that defendant did not get possession of the hides in Jacksonville but it is equally true that neither did plaintiff get possession of the price, in money, at that place. In other words delivery was not made at Jacksonville, but was to be made at Baton Rouge. ■ ■

Delivery* is an incidental and not an essential obligation of the contract sale. The sale is perfect between the parties and the property is of right acquired by the purchaser as soon as there is an agreement for the object and for the price. C. C. 2456—Kessler vs. Manhein, 114 La. 622, 38 South. 473; Bloom’s Son vs. Union Rice Mill, 118 La. 312, 42 South. 947.

We believe the judgment appealed from should be affirmed, and it is see ordered.


text:
    No..............
    First Circuit Appeal.
    MRS. CLARA H. McCORMICK v. ARTHUR J. MONETTE.
    (December 2, 1924, Opinion and Decree.)
    (December 30, 1924, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest, Donations — Par. 3, 4, 5; Obligations — Par. 76.
    Under Article 1897 of the Civil Code, a donation made in contemplation of a future marriage which does not take place is void.
    Appeal from the Parish of East Baton Rouge, Hon. W.' Carruth Jones, Judge.
    This is a suit to recover a sum of money loaned to defendant. The defense was that it was a donation.
    There was . judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bouanchaud and Kearney, of Baton Rouge, attorneys for plaintiff, appellee.
    Shelby Taylor, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Plaintiff claims five hundred dollars from defendant for money loaned and from a judgment in her favor, defendant appeals.

Mrs. McCormick, the plaintiff and her daughter reside in the City of Baton Rouge where . Monette, formely a resident of Shreveport, had also removed when the occurrences forming the basis of this suit took place. At that time, about June 1923, plaintiff’s daughter was single, and she and defendant were engaged to be married. Defendant then owned a Ford Coupe in which he often took out riding, the plaintiff and his betrothed, the daughter of plaintiff. All three of the parties were of the opinion that a heavier and larger automobile would be more convenient and suitable for their-wants.. A Willys Knight was finally agreed upon as well adapted for their purposes. Monette owned the Ford on which he then owed quite a large balance for its purchase price. He had no money and Mrs. McCormick agreed to put up five hundred dollars, which amount together with the Ford was turned over to the Willys Knight Sales Agent in part payment for the new automobile. The question of fact upon which the parties in this suit disagree and upon which partly depends a proper disposition of the case, is whether plaintiff loaned the money' to defendant or whether she made him a donation of that amount in' consideration of his contemplated marriage to her daughter.

Shortly after the purchase of the new and larger automobile by Monette, plaintiff’s daughter accepted another suitor, was married to him and thus her engagement to Monette was abruptly terminated.

Plaintiff was very much distressed at this sudden turn of affairs and for a while, her friendly relations with Monette continued uninterruptedly. The daughter, now married, was however shortly thereafter forgiven by the mother, returned to the home of her girlhood and then followed the. present demand for the reimbursement of the five hundred dollars.

Plaintiff contends that she loaned the money to defendant, but defendant on the other hand, answers and says that this amount was donated to him in consideration of his contemplated marriage to plaintiff’s daughter. The evidence is by no means clear and convincing as to whether the money was loaned, or donated, by plaintiff to defendant. Weighed however in the light of the motives by which an ordinary person is usually influenced in his conduct and actions, the contention of defendant seems to be better supported by that evidence. But there is little use of analyzing the facts and circumstances which lead to that conclusion, for even if the money was donated, defendant must be cast, under the provisions of Article 1897 of the Civil Code. That Article is clear to the effect that a donation made in contemplation of a future marriage which does not take -place, is void, as having been made without cause or consideration.

. We do not know the reasons upon which the learned judge of the District Court based his judgment, but it appears to us that his finding is correct and for the reasons stated.

The Judgment appealed from is affirmed.


text:
    No. 7753.
    First Circuit Appeal.
    DAVID M. MEYERS v. MRS. MARY F. DAWSON ET AL.
    (December 2, 1924, Opinion and Decree.)
    (December 30, 1924, Rehearing Refused) (Writ to Supreme Court Granted)
    (See 158 La. 753, 104 South. 704.)

      (Syllabus T>y the Editor.) .
    1. Louisiana Digest, Pleading — Par. 18,-62.
    A petition to have a definitive boundary established stating that “errors in the matter- of description” in a deed -and a partition made it necessary, discloses a cause of action.
    (Code of Practice, Article 172, Par. 4, and Article 345. Editor’s note.)
    Appeal from the -22nd Judicial District Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to establish a boundary against which an exception no cause of action was sustained.
    Plaintiff appealed.
    Judgment reversed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Justin C. Daspit, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff David M. Meyers alleging himself to be the owner and possessor of a certain tract of .land described in his petition by title duly recorded and that he had found recently that his title under which he owned the land as well as an act of partition from which he deraigned title contained an error in the matter of description, bearing on the area and location of his land; that adjoining owners, deraigning title from the same act of partition were endeavoring to take advantage of said error to the injury and prejudice’ of his right title and ownership ; he named them in his. petition and brought suit to have.the alleged error recognized by the court contradictorily with the parties named, to the end that a definitive boundary might be established between their adjoining and contiguous tracts of land correctly and properly in conformity-with their titles.

The defendant Mrs. Mary B. Dawson excepted to his petition on the ground that it did' not set forth a cause of action and that moreover the allegations in plaintiff’s ■petition estopped ’ from claiming relief.

The district judge sustained both exceptions and plaintiff appealed. Both exceptions are to be judged on the face -of plaintiff’s petition.

The law says: “The limits must be fixed according to the respective titles of the parties.” If one or more of the -titles of ' the contiguous owners contain errors, such as plaintiff alleges in his petition; it is necessary for them to be rectified in order that the limits of each may be fixed, according to their respective titles. A boundary can not be definitely nor correctly established; based on errors in- the matter of description; such as the .plaintiff alleges in his petition.

■We have examined plaintiff’s petition and find that it sets forth a cause of action and in our opinion plaintiff is not estopped by the allegations relied on by the exceptor as grounds therefor.

The judgment sustaining the exceptions is in our opinion erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed and the case -is remanded to the lower court to be replaced ' on the docket and proceeded with as the '-law provides. The cost of the exceptions and of this appeal to be paid by defendant and appellee.


text:
    No.............
    First Circuit Appeal.
    WARREN D. WILLIAMS v. H. L. WEIL COMPANY.
    (December 2, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Citation and Appearance — Par. 17.
    Citations on A. and B. individually and as partners is sufficient citation on A. where there is no partnership and A. is the party defendant.
    2. Louisiana Digest — Deposit — Par. 7;. Warehouses — Par. 6, 7.
    A notice stating “Cars and contents stored at owners’ risk,” posted in a garage, does not exempt the owner from liability for his lack of care or prudence.
    3. Louisiana Digest, Mandate — Par. 74.
    Where the person in charge of public garage leaves it to drive the owner of an auto home .where he leaves the auto owner taking his car supposedly back to the garage; the garage employee, is acting as agent of the auto owner in so doing and the garage is not responsible for resultant damage to the car; it not being shown that the automobile ever reached the garage.
    (Civil Codé, Art. 1930. Editor’s note.)
    Appeal fro'm the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.
    ■This is a damage suit to recover the cost of a Ford Sedan.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    C. T. Wortham, of Donaldsonville, attorney for plaintiff, appellant.
    Walter Lemann, of Donaldsonville, attorney for defendant, appellee.
   LECHE, J.

Plaintiff is a traveling salesman, resides in Donaldsonville and owns a Ford Sedan automobile which he uses daily in the pursuit of his occupation. He usually leaves home on the morning returns at night and for some time, not definitely shown, had been under an agreement with the defendant, storing his automobile during the night in defendant’s public garage in Donaldsonville.

He alleges that on or about October 31, 1921, he drove his automobile into defendant’s garage to be stored under the terms of his agreement, and that during that night his automobile was stolen or taken out without his knowledge or consent and was found the next day several miles from Donaldson-ville, almost completly wrecked and ruined. Alleging further, the responsibility of defendant for the safe keeping of his automobile, under his agreement, he sues for damages to the machine and deprivation of its use, in the sum óf six hundred and fifty seven 78/100 dollars and costs.

The District Court refused his demand • and he has appealed.

. The evidence shows that plaintiff reached defendant’s garage about eight o’clock at night. That at that hour, the garage was in charge of a colored boy whose occupation was to stay there at night. .

Whether at the suggestion of plaintiff or the colored boy in charge, instead of leaving the automobile in the garage, plaintiff had the boy to drive him home, some six or seven blocks from the garage, and the last plaintiff saw of his automobile that night, was on the street in front of his home, where he got out of the machine and left it in charge of the boy, to be driven back to the garage.

The first defense is that defendant is not a commercial partnership, composed as alleged, of H. L. Weil and Wm. Blumenthal, but that the garage is owned by H. L. Weil who does business under the name of H. L. Weil & Company and from such fact defendant- argues that the plaintiff’s demand should be dismissed. Plaintiff’s demand is against the partnership and the individual members thereof, in solido. Citations in the case, were addressed to the partnership and to H. L. Weil individually, and to Wm. Blumenthal individually. Conceding that Wm. Blumenthal is not a member of the firm and that there is no such partnership, we believe that the citation was sufficient to hold the defendant H. L. Weil individually. • It was by his own act that third parties have been misled into the belief that other persons were associated with him.

The next defense is that there is a. notice posted upon the wall of the garage to the effect of warning chauffeurs and. owners “Cars and contents stored at owner’s risk.” It is elementary that a bailee or depositor cannot in any such manner or in fact, in-any other manner, exempt himself from responsibility for his own lack of care or prudence.

Neither of these defenses is well taken, but on the merits, according to the evidence in the record, we believe the case' is with-defendant.

Plaintiff does not allege in his petition the particular manner in which delivery was made of his automobile to the defendant. The inference from the allegations of his petition, which simply state's that “petitioner’s said car was in the said garage * * * of H. L. Weil Co.”, that night, would naturally be that plaintiff had made deposit or delivery at the garage. The colored boy, who was the first witness tendered by plaintiff, • swears that delivery was made in the garage, and he also, is silent as to the fact that he drove plaintiff home and that the automobile was left in his keeping on the street, in front of plaintiff’s home. It was only after plaintiff himself had been examined in chief, upon the witness stand, that the fact of his having left his automobile in charge of the colored boy some six or seven blocks from the garage, was first elicited. Whether the colored boy forgot to make this statement or whether he deliberately concealed that fact, is a matter of conjecture, but it taints his testimony with suspicion as to its credibility. It is apparent that the plaintiff and the colored boy are far apart as to the manner in which the delivery or deposit was made. Plaintiff says that he had on previous and similar occasions been driven home by this same colored boy, but he does not claim that this was done either with the knowledge, sanction or authority of defendant. Our opinion is that when plaintiff left the garage to be driven home' by the colored ■ boy, he accepted this service at his own risk, and that the boy, on that occasion was acting as his agent and not as agent of the defendant. What became of the automobile after plaintiff left it in charge of the colored boy, in front of his home, is only within the realm of mere supposition. The boy does not pretend to have driven the automobile from plaintiff’s home to the garage.

The District Judge did not believe that the automobile was brought back to the garage and we are of the. same opinion.

For these reasons the judgment appealed from is affirmed.


text:
    No. ......
    First Circuit Appeal.
    JOSEPH CHENEVERT v. FLORENCE EUGENIA LAWS.
    (December 2, 1924. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Pleading. — Par. 62.
    Where the petition states that a judgment for the identical account has previously been obtained against another party and does not allege that he is unable to execute that judgment; an.exception no cause of action will be sustained.
    2. Louisiana Digest, Pleading. — Par. 62.
    Where the petition alleges facts but does not show a cause of action; an exception no cause of action will be sustained.
    (Code of Practice, Art. 345. Editor's note.)
    Appeal from the Parish of West Baton Rouge, Hon. William C. Carruth, Judge.
    This is a suit to recover part of the proceeds of a crop of sugar cane sold.

      There was judgment sustaining an exception no cause of action filed by defendant and plaintiff appealed.
    Judgment affirmed.
    C. A. Holcombe, of Baton Rouge, attorney for plaintiff, appellant.
    Laycock, Barron & Laycock, of Baton Rouge, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment maintaining an exception of no cause of action.

It appears that plaintiff leased from Wilkinson & Lanford certain lands upon which he cultivated and grew during the year 1923 a crop of sugar cane. The money and supplies needed to plant and cultivate the crop were advanced to him by his lessors. The 'cane when harvested was turned over to the lessors, who sold and delivered same to the Cinelare Central Factory, herein represented by the defendant.

Wilkinson & Lanford, lessors, were to receive the crop, dispose of it, retain one quarter of its proceeds for rent and, after deducting their advances, pay the balance thereof to plaintiff.

Defendant not knowing, and in ignorance of the verbal agreement between plaintiff on one part and Wilkinson & Lanford on the other part, regarding the lease, the advances and the disposition of the proceeds of the crop, paid out all the proceeds in satisfaction of the obligations of Wilkinson & Lanford. Such are the facts and conclusions as we understand them from the allegations of plaintiff’s petition.

Plaintiff further alleges that defendant had held in her hands the sum of Three Hundred and Forty-eight 1-100 Dollars, or the sum of One Hundred and Seventy-three 7-100 Dollars for account of Wilkinson & Lanford, which she had promised, through her agent, A. W. Wallace, to hold subject to judicial determination, and that she had paid over said amount to certain other creditors of Wilkinson & Lanford, in violation of her promise to hold that fund, and he prays for judgment accordingly, in the alternative, against the defendant.

Plaintiff can only recover from defendant' under one of two theories. Either plaintiff was owner of the crop and became vendor thereof when it passed into the hands of defendant, or defendant by fraud, deceit or misrepresentation, has made it impossible for plaintiff to collect his claim against Wilkinson & Lanford and has thereby damaged him in that amount.

The first theory is untenable under the allegations of the petition. The crop was turned over by plaintiff to his lessors, who sold it to defendant. Defendant purchased the crop as that of Wilkinson & Lanford and there is no allegation that defendant had notice or knowledge of any claims or equities upon the crop in favor of plaintiff. There was then no obligation, legal or conventional, on the part of defendant to account to plaintiff for the price of the crop, or of any part thereof.

In order to recover under the second theory, it should appear not only that defendant by her conduct and actions caused plaintiff to refrain from garnishing the funds in her hands, but it should also affirmatively appear that if such garnishment had been resorted to, plaintiff could have recovered the amount of his claim against Wilkinson & Lanford. The petition does not contain this essential allegation.

Again, plaintiff in his petition, also alleges that previous to the institution of this suit, he had obtained a judgment in personam against Wilkinson & Lanford upon this identical claim, the petition, the answer and the judgment in that suit being inserted in the petition in the present action, but he does not allege that Wilkinson & Lanford are insolvent or that he is unable to execute his judgment against them.

We believe the petition fails to disclose a cause of action, and that the judgment appealed from should be affirmed and it is so ordered.