author: Watkins, J. Fenner, J.

text:
    No. 287.
    William Lampkins vs. Vicksburg, Shreveport and Pacific Railroad Company.
    1. It is essential to the validity of a transaction that the particular lawsuit which is to be prevented or put an end to should be specially mentioned in it.
    2. A compromise is a contract, and to have the force of things adjudged it must be perfect and complete in itself, and nothing loft for ascertainment by parol proof.
    3. There being no dispute as to the fact of a passenger having been ejected violently from a railroad train, while running at a high rate of speed, by a person representing himself tobe a conductor, and possessed of theparaphernalia of such officer at the time, and being actually engaged in taking fares of other passengers, a strong presumption is created that such person was, in fact, a conductor of the train. When this presumption is aided by the positive and uncontradicted testimony of two witnesses, who saw the passenger ejected, very strong circumstantial proof will be required to overcome it and relieve the railroad company from liability.
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.

      Land & Land for Plaintiff and Appellee:
    1. AVhen the testimony is conflicting and contradictory, or when there is a question of character or credibility of witnesses or of false swearing and the like, the verdict of a jury will be affirmed, if for a reasonable amount, and sustained by the testimony of many witnesses, though contradicted by other’s, 41 An.-385, 810.
    2. A verdict for $7500 for loss of a leg and attendant suffering is reasonable. See 38 La. An. 777; 41 La. An. 861.
    3. A compromise induced by fraud is null and void. C. C. 3079. The assertion of what is false, by words, writing, or any other means calculated to produce a belief of what is false or an ignorance or disbelief of what is true, is a fraud. O.C. 1847, Story Hq. Jur., See. 193.
    4. A contract with a person of weak mind and for an inadequate consideration, “furnish the most vehement presumption of fraud.” Story lb., Secs. 236-246.

      Wise & Herndon for Defendant and Appellant:
    1. The burden of proof is on plaintiff to show that an employe of defendant company caused the injury and damage to plaintiff.
    2. Railroad companies are under no obligation to furnish their trains with a standing police force sufficient for the emergencies of occasions of extraordinary danger to passengers, which could not have been foreseen. Thompson’s Carriers of Passengers, p. 295.
    3. If the assault upon the passenger is so sudden that it cannot be prevented, and the conduct of the person making the assault has previously not been such that his action might reasonably have been anticipated, the carrier will not be responsible for the consequences. Ibid., p. 304.
    4. The instrument of date June 26,1889, is an act of compromise.
    5. A transaction or compromise is an agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent in the manner in which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. C. C. 3071.
    6. Transactions have between the parties a force equal to the authority of the thing adjudged. They can not be attacked on account of any error in law or any lesion. C. C. 3078.
    7. The plaintiff claims the agreement with his attorneys contained a power to them to settle and compromise, and that power is an irrevocable power.
    8. To constitute a power irrevocable it must be coupled with an interest. Story on Agency, par. 474; Hunt vs. Rousmaniers, Administrator, 8 Wheat, R. 174.

      9. Mental incapacity is no ground to annul a compromise transaction. C. C. 402.
    10. If mandate to the attorneys is irrevocable because oí the interest they have in the thing itsell, it is a litigious right and reprobated by law. C. C. 2658, 8556, 18, 2447.
   The opinion of the court was delivered by

Watkins, J.

The defendant corporation is sued for damages for personal injuries sustained by the plaintiff by reason of his having been violently ejected from a passenger train on its road about twenty miles east of the city of Shreveport, at about 9 o’clock on the night of November 10, 1888.

Claim is made for $20,000, but on the trial the jury awarded $7500, and from a judgment to that effect' the defendant has appealed.

The defence is a general denial, and a plea of compromise and payment.

As admitted by the defendant’s counsel, in brief and argument, the facts developed on the trial, i. e., in relation to the happening of the occurrence, are briefly these:

On the night in question the plaintiff was a passenger on one of the defendant’s excursion trains going east from Shreveport. Nine passenger coaches and one baggage car composed the train. On this train were a large number of people — men, women and children — returning to their homes from their attendance on the Shreveport fair. The plaintiff while sitting on one of the steps of the rear platform of the fourth coach from the engine was approached by some one, who demanded his fare. He did not have his ticket in possession, but told this person that a gentleman on the train had his ticket, and asked time to get it. Thereupon this man pushed or shoved him off the train. The speed of the train was about twenty-five miles an hour; and by the fall the plaintiff’s left leg was broken. He lay all night by the roadside, and was next day found and carried to the Charity Hospital in Shreveport, whereat his broken leg was amputated two days subsequently.

Defendant’s counsel makes no question of the fact that a gross and wanton outrage was perpetrated on the plaintiff by somebody, but he strenuously insists that the person who inflicted it was neither an officer or employé of the company, and it is therefore in no way responsible for the injury inflicted or the damages sustained.

But whatever may be the- facts in the case as appertaining to its liability, he claims — and defendant’s answer sets up — a compromise and settlement made with the plaintiff pendente lite as a bar to his demands and recovery of damages.

Hence the defence is twofold: (1) A compromise and settlement; (2) a denial of defendant’s responsibility for the unlawful act.

I.

Of the Effect of ti-ie Compromise.

On December 29, 1888, this suit was filed, and on the 26th of June, 1889, the subjoined document was executed by the plaintiff, viz:

“Form 1516.

Vicksburg, Shreveport and Pacific Railroad Company to Wm.

Lampkins, Dr.

“ Shiloh, La., June 26, 1889.

“ On consideration of the sum of $150 to me paid by the Vicksburg, Shreveport & Pacific Railway Company, the receipt whereof is hereby acknowledged, I hereby release and acquit said company of all claims by reason of injuries sustained by me west of and near Shreveport on the 10th day of November, A. D. 1888, by jumping from train and having leg run over, the same being settlement in full of any and all claims I have against said company in consequence of, or in any way connected with, said injury, whether caused by negligence of said company or any of its employés. One hundred to be paid in cash down, and fifty dollars to be- remitted to me on or before July 5, 1889.

(Signed) “ Wm. Lampkins.

“ Witness to reading, signature and payment

(Signed) “ W. F. Lindsay.”

This is the document relied upon as a compromise, having the force of things adjudged, between the parties to the litigation.

From the evidence it appears that this alleged transaction was negotiated by an agent or claim adjustor of the defendant. This agent sought the defendant at- his residence near the village of Shiloh in Union parish, several miles distant from the railroad, and about eighty miles distant from Shreveport, where this suit was filed, and he found Mm in Ms house confined of his affliction. He then had a conversation with him about the accident, in the course of which he admits saying that “ he thought it would cost the company something like $100; that is to bring the men here. I told Lampkin they expected him with their witnesses when the ease came up, and that both of the conductors would be there for the purpose of proving they were not the men who shoved him off the train, and establishing their innocence. * * * * * , My whole object was to convince Lampkins that he could recover nothing in this suit.”

It is a noticeable feature of this instrument of writing that it contains no mention of the lawsuit that was to be compromised; and that while the consideration is mentioned as $150, only $100 of this is specified as cash.

The code declares that “ a transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.” R. ■€. O. 3071.

“.This contract must be reduced to writing.”

As a contract it must, like all other contracts, be full and complete in itself; but, in respect to the particular lawsuit to be compromised, this one is silent; and, as to the price agreed on, something was left to be done. For, it is in proof that, when the time designated in the instrument, for the payment of the deferred instalment of the price, had arrived, that amount was tendered to and refused by the plaintiff. It is evident that there was no perfect agreement, and the contract was incomplete. And soon afterward we find Lampkins and a companion journeying to Monroe — the domicil of the company — seeking additional advice on the subject, and endeavoring to procure some more definite satisfaction in the premises.

The code provides that “a compromise entered into on documents which have since been found false, is null in tofo.” R. C. C. 3081. It is likewise null if the contract was imperfect and the terms misunderstood. To be valid as a transaction this contract must be complete in itself, and nothing left to be established by parol proof. This case differs essentially from Calhoun vs. Law, 39 An. 594.

Just prior to the filing of this suit the following agreement was made and entered into between the plaintiff and his counsel, viz:

“ WM. LAMPKINS versus V., S. & P. R. R. 00.

“No. 3334. In Bistrict Court of Parish of Bossier.

“Know all men by these presents, that I, ¥m. Lampkins, having retained and employed the law firm of Land & Land to institute and prosecute to final judgment the above entitled suit for the recovery of damages against the said company for irreparable injuries inflicted upon my person, do hereby as a further consideration of their services in said suit renounce and waive my right to compromise said suit with said company, or to compromise the judgment that may be rendered in my favor in said suit; and I do hereby constitute my said attorneys my special and exclusive agents to-compromise said suit with said company, or to. compromise any judgment which may be rendered in my favor against said company for damages for injuries inflicted on my person, provided any proposition of compromise should be made by said company, either before or after judgment. Done and signed this the 27th day of December, 1888.

(Signed) “ William Lampkins.”

On the trial of the case plaintiff urged this agreement in restraint of his right to make the compromise of the suit without first consulting his counsel. There is no doubt that, having employed counsel to bring the suit, it was the duty of plaintiff to first consult them before making any compromise of the case. And no written contract between them was necessary to consecrate this obligation. The plaintiff being a young colored man, at the time suffering from the amputation of his leg and under treatment, and not of a bright or intelligent mind, did not appreciate this obligation, and was unmindful of it. Some six months after the suit was filed and much of the written evidence had been taken, plaintiff’s counsel served a copy of this agreement on defendant’s counsel, that they might be fully apprised of plaintiff’s agreement and renunciation of his right to compromise the suit. This notification was brought home to the claim agent just previous to the alleged compromise. He admitted his knowledge of it, and that he disregarded it and gave plaintiff’s counsel no notice of it. To say the least, this course of conduct was in exceedingly bad taste, and reprehensible in the extreme, and places the transaction in a doubtful light. We think it was altogether unjustifiable and can not receive our approbation. .If reputable attomeys who engage in the prosecution of justifiable litigation, at great labor'and expense, are to have themselves thus superseded and their cases turned out of court by over-zealous representatives of adverse parties, at any time and without notice, and have no redress — to borrow a Shakespearian phrase: “Othello’s occupation’s gone.” Coming in this doubtful guise, we cannot enforce this alleged compromise. On the trial, and in open court, plaintiff’s counsel tendered the defendant the sum of $150, and by receiving it the status quo would have been restored.

II.

With regard to the identity of the person who shoved the plaintiff off the train- the principal controversy arises. Quite a number of witnesses were interrogated on the subject, and, as is usual in such eases, there is a marked conflict of testimony. It is certain that plaintiff was approached by some one purporting to be a conductor, who demanded his fare. Lampkins says that this person wore a cap, he thinks, and had a lantern in his hand and a pair of clippers. It was he who pushed him off the train. He said: “The man had on a cap, but as to the clothes I do not remember. I did not notice whether the man had brass buttons on his coat or not. It was tolerably light; the lantern was all the light I had to go by.”

On the platform of the ear and quite near Lampkins stood^two other persons, who were eye witnesses of the whole transaction. One of them testified as follows:

“ I saw the conductor coming through the coach taking up fares.. He passed through the third coach from the engine; came out on the platform where I was standing and collected fare, twenty-five cents from me and John Horton; he (the conductor) went to Lampkins and asked him for his fare, and he told him hp did not have any fare; that there was a man in the cars that had his fare; that if he would allow him a little time, he would get his ticket; he asked him about the third time for his fare, and then told him: ‘ Get off here, then,’ and Lampkins seemed not to move. ’ The conductor took his lantern off his arm and set it on the platform of the car beside him, and then pushed and kicked him off. I and John Horton were standing there, and I said: ‘iThere, now, boss; you killed that man.’ The conductor said: ‘No; that did not hurt (the) d-s-b-.’ ”

This witness further stated that the conductor went into the next car, taking up tickets, and soon afterward returned and asked him: “Do you reckon I hurt the d-s-b ?” and he replied: “I reckon so.” He said this man wore a cap and carried a lantern, and had a pair of cor-ductor’s clippers in his hand.

This witness’ testimony is fully corroborated by that of his associate, who stood on the platform. The testimony of the plaintiff is to the same effect. Another witness testified that “ a short while after leaving Shreveport the conductor and porter came through the train saying that ‘ we have put him off; we have never failed yet.’ ”

Still another witness swears that he heard the conductor say he put Lampkins off the train. He subsequently modified the statement by saying he did know who it was made this remark.

The defendant’s witnesses testified that the two conductors who had charge of the train were not dressed in uniform, and the two -conductors declared that they had neither punches nor clippers; and -only one of them admitted that he carried a lantern. Other witnesses state that there was a party of four or five college cadets on the train, disguised as conductors, taking up fares from colored passengers.

One of these witnesses swears that he saw these young men collecting fares from colored men that night. He says: “ One of them handed me a pair of green spectacles, and asked me to keep them so the conductor would not recognize him.” He said he knew the 'youngman, and that he showed him the tickets he had taken up.

He says he went forward to the baggage car and informed the conductor of their proceedings, an! they came back through the train in search of the young men, but they failed to find them. But neither he nor the conductor state that he gave their names. This gentleman was a local agent of the defendant, and well known to the conductor.

On the other hand, five witnesses of the plaintiff, all of whom were on the same coach with the plaintiff, state that they saw nothing of the kind. This witness of the defendant fails to connect those young men with the plaintiff in any way. The details of the occurrence, as related by the eye witnesses, clearly show that the plaintiff was not pushed off the train by any one of them. The man who pushed him off carried a lantern and a pair of conductor’s clippers. He was entirely clone. , They saw him as he came through the car collecting fares of the passengers. -He then came out on the platform and took up their fares, and called on the plaintiff for his. Afterward he passed on into the next coach, and subsequently returned. He did not wear green spectacles. Neither of those cadets had a lantern or a conductor’s clippers. Itwas quite dark when the train left Shreveport, and at 9 o’clock no one could see how to read a ticket out on the platform of the coach where the plaintiff was sitting that night, without the use of a lantern. Certainly, the appearance of four or five young men on the train taking up fares from the passengers would haüe attracted general attention, and the defendant' could have easily proven that fact, if it was a fact, by many witnesses, whereas he produced but one. It is hard to believe that any young cadet would have pushed the plaintiff off the train in the manner described, just for the sake of a little sport — taking into consideration that the night was dark and he was entirely alone. If, as stated, these five young men went through the train and collected tickets from colored passengers; before the conductor came into the coach, how was it that there were not a number of persons besides the plaintiff ejected from the train for failing to have their tickets? And, if this occurred after the conductor had passed through the train, how did it happen that passengers had tickets in their possession, as they were on their return trip home?

Taking this statement in any light we may, and it appears utterly absurd. We feel convinced, from a careful perusal of all the evidence, that plaintiff was ejected from the train by an official or employs of the defendant, and that it is responsible to the plaintiff for the injury sustained by the loss of his leg, which was caused either by his fall from the train or by the wheels of the cars passing over and crushing it.

The plaintiff is a young colored man, of twenty-four years of age. He has no money or property. Is a laboring man who would likely earn $200 ayear, and has a reasonable prospect of living twenty-ñve years. He makes claim for $5000 for physical pain and suffering, $10,000 for the loss of his leg, and $5000 for punitory damages for a malicious and careless act of the defendant’s employé in pushing him off the train.

After being pushed off the train he lay on the ground, without assistance, from 9 P. m. of one evening until 8 a. ji. of the following morning, when he was found by one of the persons who stood on the platform and saw him fall. The next day he was carried to the Charity Hospital at Shreveport, where his left leg was amputated two inches below the knee. He was under treatment for several months, and suffered great pain. Under these circumstances we think he is entitled to the sum of $4500; of this amount $2500 for the pecuniary damages sustained in consequence of the loss of his leg, and $2000 for physical suffering, with legal interest from date of this decision.

There are numerous elements of damages that have entered into our computation and assessment of the allowance which we have made, and which need not be mentioned here. But it is proper to observe that this case was tried before a jury who knew all the witnesses, and gave consideration to their testimony, which is conflicting and contradictory. They saw the witnesses when they testified, and were better capacitated to place a just estimate upon their evidence than we are; and we regard their appreciation of it as justly entitled to great consideration at our hands, and consider that their verdict should not be lightly considered or hastily disturbed. In this case we find no warrant for reversing their conclusions. Griffin vs. Railroad Company, 41 An. 808.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is amended and reduced to $4500, and that, as thus amended, same be affirmed, and that the plaintiff and appellee be taxed with the costs of the appeal.

On Application for Behearing.

Fenner, J.

Independently of the technical objections noted in the opinion, our avoidance of the compromise might well rest upon the ground of the undue influence exercised upon and the unjust advantage taken of the plaintiff, an ignorant, weak-minded and suffering negro, by the astute agent of defendant, who, though advised that the plaintiff’s interests were under the protection of competent counsel in whose favor he had renounced the power of compromise, avoided the counsel, and sought the plaintiff in the seclusion of his sick room, and, by working on his credulity and his fears, extorted his consent to an unconscionable bargain.

We have stricken from the opinion the quotation of certain testimony, which it now appears, though embodied in the record, had been ruled out. The error, in no manner, affects our conclusions.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 291.
    C. R. Mower vs. W. M. Kemp.
    i. While it is true that a legislative act authorizing a private corporation to ex \ ecute a mortgage on lands and franchises which have been donated to it by the State, being a private act, should be introduced in evidenpe, yet that it has not, can make no difference when such act has been, in another cause, recognized and enforced by a decree of this court. We are bound to take judicial cognizance of our own decisions.
    2. In case the federal government, neither by legislative enactment nor judicial construction, has declared the forfeiture of a grant o,f lands to a railroad corporation, the Legislature of the State, which is designated as the trustee in the granting act of Congress, can — if she has done no act to estop her from setting up an adverse claim to a present grantee — forfeit such grant, on the ground of the non-fulfilment of the condition subsequent to said grant — the completion of the railroad within the fixed period of ten years.
    6. The State having by legislative enactment authorized a railroad corporation, as donee and grantee of lands and franchises which she bestowed upon it, to execute a mortgage thereon, is estopped from impeaching same. Rights acquired through the enforcement, judicially, of such mortgage can not be destroyed by subsequent legislative action by the State.
    4. The corporation acquires an apparent legal title to the lands and franchises which are adjudicated to it under such judicial foreclosure of a mortgage, and the State, as trustee, is estopped from disputing its validity-, or setting up adverse right or title in herself. Only the United States government, as grantor, can in such-case take advantage of the grantee’s non-performance of condition subsequent which is attached to the grant, and this must be done by act of Congress or judicial proceedings and decree.
    5. So long as a railroad company is permitted to retain the occupancy of such granted lands, and to exercise the franchises it has thus acquired, and the grantor shall forbear to forfeit the grant, the corporation is entitled to proceed with the construction of its railroad to completion “out of time,” and thus fulfil the condition subsequent that is attached to the grant.
    6.At most, an intervening, repealing statute, enacted by a Legislature of the State, as trustee, could repeal and avoid its oxen donation to the railroad company; but it containing only like conditions as those prescribed in the granting act of Congress, left the grant as it was originally. And it having never been revoked by act of Congress or judicial decree, a mere possessor of the granted lands, without title from any source, can take nothing by the effect of the repealing statute, the condition subsequent having been intermediately fulfilled.

      7.The granted lands having been withdrawn from sale and settlement and passed into the domain of private property — not subject to entry under the United States government homestead laws; and defendant not having a title from any source whatever, must be treated as a trespasser, and not entitled to recover the value of improvements in excess of the annual revenues of the land.
    PPEAL from the Second District Court, Parish of Bienville. Boone, J.

      Stubbs & Bussell and Wise & Herndon for Plaintiff and Appellant:
    1. In a grant of lands by Congress to aid in the construction of a railroad, uthere be and hereby is gra/nted,” are words of absolute donation; importan immediate transfer of title, and vest a present title in the grantee, though a location of the road and filing of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishes this.
    2. The condition in such a grant, that “if the road is not completed within a certain time, no further sale shall be made, but the land shall revert to the United States,” is a condition subsequent.

    3. Time not being the essence of the grant, it is not forfeited, ipso facto, by the failure of the company to perform the condition; but to enforce the forfeiture* action must be taken by authority of Congress.
    4. The company had still a right to construct the road out of time; and until in some way Congress takes advantage of the breach, it is the duty of the government to give the company the benefit of the grant. 8 Opin. Atty. Gen. 244-256; 11 Opin. Atty. Gen. 47; 16 Opin. Atty. Gen. 397-572; H. B. Ex. Dec. 47th Cong. 29* p. 85, Atty. Gen. Brewster; 9 Wall. 95; 94 U. S. 743; 97 U. S. 291; 103 U. S. 426; 104 U. S. 329; 106 U. S. 360; 113 U. S. 629; 115 U. S. 306.

      5. No one can take advantage of the non-performance of “a condition subsequent” hut the grantor or his heirs or successors; and if they do not; see fit to assert their right to enforce a forfeiture, the title remains unimpaired in the grantee.
    6. On the failure of the company to complete the work, a forfeiture of the grant, if it resulted therefrom, can he enforced only by the United States, by judicial proceedings, or the action of Congress. 21 Wall. 60; 115 U. S. 306; 32 Eed. Bep. 899.
    7. By the terms of a grant of land to a State to aid in the construction of a railroad within its hounds, the State is a mere trustee or mutual agent of the grantor and the beneficiary.
    8. The grant is to the enterprise, and upon the completion of a railroad between the termini named and on the route designated in the grant, its acceptance by the trustee, and certification thereof to the grantor, the trust is at an end, and is terminated ex necessitate.

    9. The road opposite to the premises in controversy having been completed and accepted, the title, however imperfect whilst encumbered, if it may he so termed, by the uses to which the lands were to be applied, has become perfect and indefeasible. 82 Eed. Bep. 907.
    10. Lists of lands selected by the grantee and certified by the General Land Office convey as complete title as patents. Legal title passes as completely by such certification, if patent is not expressly required by law, as though patent issued. U. S. Bev. Stat., Sec. 2449 ; 6 Land Dec. 543; 115 U. S. 102; 116 U. S. 381.

      11. An estate in fee can not be defeated for a breach of a condition subsequent by a legislative act, unless the condition is expressed in the deed. 2 Bl. Com., 158-4; 4 Kent Corn., 120,128; 16 Wall. 228.
    12. The condition subsequent is the resolutory condition of the civil law. The contract is not dissolved of right by failure to comply; the party complaining must either sue for a specific performance or dissolution of contract. C. O. 2046. Conditional obligations are such as arc made to depend on an uncertain event. * * * If the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then the resolutory condition. O. O. 2021.
    The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or hinder. C. O. 2024.
    The contract of which the condition forms a part is, like all others, complete by the assent of the parties; the obligee has a right of which the obligor can not deprive him; its exercise is only suspended, or may be defeated, according to.the nature of the condition. O. C. 2028.
    The condition being complied with luis a retrospective effect to the day that the agreement was contracted. O. C. 2041.
    If the conditions be potestative * * * their non-fulfilment does not of right operate a dissolution of the donation; it must be sued for. O. C. 1566.
    A resolutory condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution or demand a specific performance. C. O. 2046.
    The resolutory condition may be expressed in the contract, as well as implied; the principles which control are the same.
    In all cases the dissolution of a contract may be demanded by suit or exception, and when the resolutory condition is an event not depending on the u:iU of either part-u, the contract is dissolved of right; hut in other cases it must be sued for, and the party in default may, according to circumstances, have further time allowed for the performance of the condition. O. O. 2047.
    18. The act of the Legislature transferring* the lands to the company contained no provision in terms for forfeiture to the State, nor was there any subsequent agreement providing for forfeiture; therefore there could be no forfeiture by the State except by judicial proceeding*. 92 IT. S. 66.
    14. The State had a right, in furtherance of thd object of the grant, to make any disposition of the lands it saw fit, “so that it did not cut off the right of the United States to compel the application of the lands to the purposes for which they were granted or prevent their forfeiture in case the company failed to perform the conditions of the grant.” 82 Ifed. Itep. 906.
    15. The State transferred the lands to the company; specially authorized the mortgage of same to secure the loan to build the road; the mortgage was executed. Third parties became owners of the debt secured by this mortgage; the mortgage was closed, and the property and all its rights and privileges acquired by plaintiff, with the full permission and in the mode indicated by the State; the State then is privy to all these proceedings, and is estopped frotn divesting our vested right, destroying our right as third parties to comply with the condition subsequent, and thus earn the lands she held in trust for the enterprise. Therefore Act 89 of 1879 is null. 1 Kent 456; Cooley Cons., 857; 16 Wall. 203; Cons. La., 155.

      10. Under the terms of the act of Congress the lands have become the property of the railroad complying with the condition subsequent by constructing the road between the termini named and along the route designated.
    Failure to perform a condition subsequent is excused when it is prevented by ris major, the act of God or that of the obligee. 21 Pick. 889; 3 Denio 334; 8 Blackf. 139; Pothier on Obligations, 212; C. C. 2040; Willis vs. Smith, 3 La. 501; J9 La. 235; 6 R. 450.
    The courts of Louisiana will take judicial notice of the fact of the late war between the States from 1861 to I860, inclusive, and that the State of Louisiana was an active party thereto.
    It is well settled, indeed it is the textual provision of our Code, that where the resolutory condition when implied, or the condition subsequent expressly stipulated, is an event depending on the will of either party, the dissolution of the contract must he sued for in all cases when it embraces immovable property, and the party in default may, according to circumstances, have a further time for the performance of the condition. Noe vs. Taylor, 13 lia. 254. The case of Gayden vs. L., N. O. & T. R. R. Co., 39 An. 269, is directly in point, and wo commend it to the court as fully sustaining our position that the State was without authority to pass the Act 39 of 1879. We assume that the rules laid down by the .state in its Civil Code, for measuring and preserving the rights of its citizens, will bo observed when treating, itself a party, with one of its citizens. The parent should not disregard the rules of action he prescribes for his children. Then when the Code of Louisiana establishes so clear a rule as above stated, the State will not be permitted to violate it, thus disregarding the contractual rights of its citizens. The rights of the State are under the law, not beyond it. While the act of 3d of June, 1856, was a contract between the Federal government and the State of Louisiana, and may be governed by the common law, and the construction of the Federal courts, yet the act of lltli of March, 1857, was a contract between the State of Louisiana and the V., S. & T. R. R. Co., one of its citizens, and in its execution and enforcement the lex loci must govern. This being so, under the plain provisions of our Code arid its interpretation by our courts, the State was without authority to annul the donation or transfer of the rights it had received from the Federal government to the V., S. & T. Co., and therefore the Act 39 of 1879 is null and void and of no effect, as divesting the rights before conferred by the State on said company.
    17. As against a mere trespasser who sets up no title, plaintiff is not bound to show a title perfect against the world. 12 An. 748; 15 An. 76; 35 i\n. 612; 41 An. 898.
    18. A. mortgage made by a railroad company is binding in the several parishes through which it may pass, by the record of same in the parish of the domicil of the company. Act 1855, p. 205, Rev. Stat., Sec. 693. ‘

      J. A. Dorman and D. H. Patterson for Defendant and Appellee;
    1. In a grant of lands by Congress to a State to use in the construction of a railroad between certain termini the words, “there be and is hereby granted,” import a grant in presentí to the State, and vests the legal title in the State, of which it can not divest itself, except in the manner pointed out by the granting act. Schulenberg vs. Harrison, 21 Wall. 44; Farnsworth et ais. vs. R. R. Co., 2 Otto 49.

      2. Tlie provision in such a grant, “that the lands hereby granted to said State shall be disposed of only in the manner following; that is to say, that a quantity of land not exceeding 120 sections and included in a continuous length of 20 miles of said road may be sold, and when the Governor of said State shall certify to the Secretary of the Interior that any 20 miles are completed, then another like quantity of land hereby granted may be sold,” etc., make it a condition precedent that the road shall be completed opposite the lands granted before the State can dispose of them. Ibid.

    3. Any disposition of the granted lands by the State prior to the happening of the condition precedent was null and void and inoperative for any purpose. Ibid.
    4. The words “shall be disposed of only in the manner following” restrict the State to the manner pointed out, and prohibit any other disposition by the State; therefore any disposition made by the State in violation of the prohibition is null.
    5. The words “no further sales shall be made” are a positive prohibition of the State’s making any sale of the land after ten years, if the road has not been completed prior to the expiration of that time; and any disposition made before the expiration of this time is a violation of this prohibition, and therefore null.
    6. A forfeiture by the State of an interest in lands and other franchises granted for the construction of a public work may be declared for non-compliance with the condition annexed to the grant by legislative enactment. 21 Wall. 44; 2 Otto 49.
    7. So after a State has made a grant to a railroad of certain lands granted to it by Congress upon certain conditions to use for the purpose of aiding in constructing a railroad upon a certain line upon the same conditions, it may declare the grant forfeited for non-compliance with the conditions of the grant; and this may be done by legislative enactment. Ib. lieports of Attorney General, and Commissioner of General Land Office. See Public Domain, pp. 831-844.
    8. In such case the fact that said railroad company had mortgaged its road with its franchises and privileges is no estoppel to the State, for the mortgagees acquired their mortgages subject to the right of the State to declare such forfeiture. 2 Otto 49.
    9. The mortgagees can not claim therefore that Act No. 89 of Acts of 1879 impaired a right vested in them, forthey acquired. their rights subordinate to the-Stace’s right to declare the forfeiture.
    10. A private statute must be offered in evidence on the trial of a suit, and can not be judicially noticed. 33 An. 963, Workingmens Bank vs. Converse.
    11. After the Legislature had passed Act No. 39 of 1879 forfeiting the grant to the V., S. &P. It. It. Co., the Governor of the State was without authority to accept the road from the present company as a compliance with the terms of the grant originally made, but which were repealed by said act.
    12. The passage of Act No. 39 leaves the legal title to the lands in controversy in the State of Louisiana subject to congressional action, either to take them back and open them for entry and settlement, or grant them to the present railroad company, as may to them seem best.
    13. Plaintiff must recover on the strength of his own title, and not on the weakness of his adversary.

      14. The petitory action corresponds in character with the writ of ejectment at common law, and can be maintained only where the right of xoossession can be shown. The petitioner in a petitory action must recover on the strength of his title, and this must be a legal, in contradistinction from an equitable, title. 10 II. 257.
    15. Plaintiff must show a title which can be traced back to another who had in himself the right of property in the thing sold or claimed. Brown vs. Brown, 15 An. 159.
    16. An action of rovendication may be defeated by proof of an outstanding title in a third person. Baines vs. Burbridgc, 15 An. 454.
    17. The holder of an incomplete title has no standing in court, and courts can not confirm a title, for this would be legislative action. Bois vs. Bransell, 4 JEL 449.
    18. One entitled to the benefits of the homestead laws settling upon the lands belonging to the United States government, with the bona fule intention of acquiring a home for himself, is not a mere trespasser.
    19. It has long been the policy of the government to encourage bona fide settlers to acquire homesteads on lands belonging to it.
    20. Where one brings a petitory action for the recovery of land, and claims in the same suit a money judgment for the use of said land, he is in equity and justice estopped from disputing the claims of defendant for the enhanced value of the soil when the improvements put on the land by defendant are the only thing that rendered the land fit for such use. 26 An. 589.
    21. ’To allow plaintiff in such case to take the improvements made by defendant without paying for them, and at the same time receive pay from defendant for the use of them, would be as inequitable and repugnant to justice as to allow one to claim both the thing and the price.
    22. The decree of the United States Court filed did no more than to recognize such mortgage rights as the bond holders had, and did not decree that they had a mortgage on these unearned lands.
    23. The purchasers at master’s sale bought several months after Act Xo. 89 of 1879 was passed, and therefore had full notice, and acquired no other rights than the mortgage company had.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action for the recovery of a small tract of land situated in the vicinity of the route of the Vicksburg, Shreveport & Pacific Railroad, with its rents and revenues; and the plaintiff also claims damages for the destruction of timber.

Defendant is sued as a naked trespasser, without color of title or right in the property.

To this suit defendant first filed an exception of no cause of action, which having been referred to the merits, he filed an answer, in which he averred that he was in possession of the property, that plaintiff was without any legal or valid title to said land, and had no such interest therein as to entitle him to sue him for its recovery. He further averred that he is entitled to the -benefit of the homestead laws of ^he United States government, and, believing that this land had reverted to the government, or that the title thereto was in the State of Louisiana, and therefore would so revert, as the railroad had not been completed within the time required by the granting act of Congress, he made a settlement and located on this land, with the bona fide intention of acquiring a home for myself and family, and of entering same under the homestead law, as soon, as it was declared subject to entry; or, if said land should be confirmed to said railroad company, that he would purchase same from it; and that he had repeatedly offered to buy it from, said company, if it could make him a clear, warranty title — but it could not do so.

He makes claim for §1200 as the value of his improvements in case of eviction, and pleads the prescription of one year against plaintiff’s demands for revenues and value of timber destroyed.

The cause was tried by á jury of the vicinage, and from an adverse verdict and judgment plaintiff has appealed.

The history of plaintiff’s title is as follows: In 1887 plaintiff acquired title from the Vicksburg, Shreveport & Pacific Railroad Company; and it acquired by purchase at master’s sale, made on the 1st of December, 1879, in the foreclosure of a mortgage, which was executed on the 1st of September, 1857, by the Vicksburg, Shreveport and Texas Railroad Company, whose right, title, interest aud franchises the said Vicksburg, Shreveport & Pacific Railroad Company had in the meanwhile acquired.

This mortgage of the said lands, appurtenances and franchises of the Vicksburg, Shreveport & Texas Railroad Company, was specially authorized by an act of the Legislature of date March 19, 1857.

There had been another act of the Legislature passed on the 11th of March, 1857, formally accepting the benefits of the act of Congress of date of June 8, 1856, donating certain lands to the State of Louisiana, for the purpose of aiding in the construction of a railroad from the Texas State line to the Mississippi river, at a point opposite Vicksburg, in the State of Mississippi; and upon the same terms disposed of the same to the said railroad company.

On defendant’s answer, and this chain of title thus traced back to the United States government, his contentions are as follows:

That there is no evidence in this record of any special authorization by the State to the Vicksburg, Shreveport & Texas Railroad Company to execute a mortgage on the granted lands; no evidence to show that the railroad company ever issued any bonds for the security of which said act of mortgage was executed; that, if granted, said mortgage was absolutely null and void, because, under the granting act of Congress, the State was only authorized to sell lands opposite each twenty miles of completed road, but she was powerless to grant any right or make any disposition whatever of other lands until the road had been completed for another twenty miles, and so on, to the end of the route; and that the completion of said road, as aforesaid, was made by said act a condition precedent to any disposition thereof by the State. Then, as there has been no act of the State since the completion of the road opposite the land in controversy, divesting herself of the legal title to same, it must be in the State, subject to be reclaimed by the government of the United States, and disposed of as it may deem best, as the terms of the grant are, that if said road is not completed within ten years no further sales shall be made, and the land unsold shall revert to the United States. He further contends that the grant of the State in 1857 to the railroad company, the act authorizing the mortgage, if any, the act of mortgage itself, and the sale to the railroad company, were subjected to the condition precedent, that the State had the right to declare the grant forfeited if the road was not completed within ten years, thereby destroying all intermediate rights that the company had acquired thereunder. That all parties contracting with the company were bound to know that this condition was thus imposed, and they must have been aware that their acquisition of it was cam onere. That in 1879 an act of the Legislature was passed repealing the act of 1857, disposing of these lands to the railroad company, that the master’s sale of the property was not made for some months thereafter, and that the railroad company had full knowledge of such reservation when it became the adjudicatee thereof.

At our last term of court we had under consideration and decided case entitled Vicksburg, Shreveport & Pacific Railroad Company Sledge, 41 An. 896, which was a case quite similar to the instant She, and in which we rendered an opinion adverse to the claims and pretensions of the defendant, who was a settler upon these railroad lands, like this defendant, claiming to be a bona fide possessor, with # an intention to acquire a title from the United States government under the homestead laws.

In that case we held, on a-careful consideration of the issues involved, that the State did, by a special act of the Legislature, of date March 19, 1857, grant to the Vicksburg, Shreveport & Texas Railroad Company “the full and perfect right to mortgage and hypothecate all or any part of the lands granted by the United States to the State of Louisiana, to aid in the construction of said railroad, by virtue of an act of Congress making a grant of lands to the State of Louisiana, to aid in the construction of railroads in said State, approved June 3, 1856.” 41 An. 900.

Thereunder we found that a large quantity of bonds were issued by the company, for the security of which a mortgage was regularly executed. We found that on due proceedings had, the validity of this mortgage was recognized by the Supreme and Circuit Courts of the United States, and that all the lands and franchises acquired by said company under that grant, and under the. assignment of the State, were purchased by the Vicksburg, Shreveport & Pacific Railroad Company, at a judicial sale, made under and in pursuance of decrees of the Circuit Court, and that it went into possession thereunder.

While it may be true, as a.general.proposition, thatThe act of the Legislature authorizing the execution of this act of mortgage, being a private act, should have been introduced in evidence; yet, that it was not, can make no difference, as we are bound to take judicial cognizance of our own decisions, and by the terms of the decision just quoted we are informed that the mortgage was duly authorized .and executed.

With regard to the right of the Legislature to authorize the company to execute meh a mortgage, whereby the title might be irrevocably divested, before the - conditions of the grant were fulfilled, a sufficient answer is found, in our opinion, in the Sledge case; for, in that case, we «held that the State made the disposition of the lands granted to the railroad company on precisely similar conditions to those under which Congress made the grant to her; and we held that “the act of June 3,1856, by the Congress of the United States, passed a present interest in the lands to the State of Louisiana, which became certain by identity, when the sections were located, and maps were filed with the Secretary of the Interior.”

We also found that the State conveyed these sections to the railroad company in 1857, and that “it was a condition precedent to the conveyance of any of the sections, that the road should be first constructed in sections of twenty consecutive miles each, before the road could get title to any portion of the land coterminous with its constructed line.” We found that “ the road had completed (only) a portion of its line,” and that the “portion between Shreveport and Monroe (Louisiana) was not constructed within the ten years.” We held that the “ Federal government, neither by legislative act or judicial construction, has declared the forfeiture of the grant, and under the well recognized jurisprudence of the Federal courts, the Legislature of the State of Louisiana — if the State had done no act to estop her from setting up an adverse claim to the present grant to the plaintiff — could forfeit the grant to the railroad, on the ground of the non-fulfilment of the condition subsequent to said grant, the completion of the road within the fixed limit of ten years.”

We held that “the United States government could have complained of the manner of the execution of the trust by the State, but it has made no objection to the’ interpretation placed upon the act donating the lands by the State of Louisiana to the Vicksburg, Shreveport & Texas Railroad Company.” That “the present plaintiff (the railroad company) acquired title through the decree of the United States Supreme Court, which recognized the validity of said mortgage, and ordered all the property included therein to be sold to satisfythe same.” That “ the State having authorized this act of mortgage, under and by virtue of which said parties acquired rights, is estopped from impeaching the same, and declaring it a nullity. Rights thus acquired can not be destroyed by subsequent legislation.” 41 An. 902 and 903.

On this hypothesis we held, in that case, that “ the plaintiff has an apparent legal title to the land by virtue of the sale to satisfy a mortgage specially authorized by the State of Louisiana. By the act of the General Assembly authorizing said mortgage, the State is estopped from disputing the title and setting up title in herself; the original grantor (of the railroad company) and the United States government can only take advantage of the non-performance of the condition subsequent attached to the grant. This may be done by legislative act or judicial construction. The government of the United States has made no assertion of the forfeiture, and the legal title to said land will remain in the plaintiff until there is some assertion of ownership on the part of the Federal government for the breach of the condition by directing the possession and appropriation of the land, or that it be offered for sale, or for settlement.”

In reference to this question, upon deliberate reflection, our minds remain fixed and unaltered. Defendant’s counsel cite us, with great reliance, to the opinions of the Supreme Court in Schulenburg vs. Haniman, 21 Wall. 44, and Farnsworth vs. Minnesota and Pacific Railway Company, 92 U. S. 49, as announcing a different doctrine.

But our reading of the former serves only to confirm our previously expresssed opinion, for in the opinion we find the following, viz:

“ The provision in the act of Congress of 1856, that all lands remaining unsold after ten years shall revert to the United States, if the road be not then completed, is no more than a provision that the grant shall be void if a condition subsequent is not performed.

And it is settled law that no one can take advantage of the nonperformance of a condition subsequent annexed to an estate in fee but the grantor or his heirs, or the successors of the grantor, if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. * * * And the same doctrine obtains when the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed.”

This opinion was rendered in 1874, and that in the Farnsworth case in 1875, Mr. Justice Field being the' organ of the court in each case. To show the distinguishing characteristics of the latter case from those of the instant case, we will make the following pertinent extract, viz:

“The parcels thus earned were excepted from forfeiture. It was certainly competent for any company to subject its property, rights and franchises conferred or attempted to be conferred by the act of May 22, 1857, or derived from any other source, to this liability. Its assent, in this respect, was one of the conditions upon which it received the loan of the State credit, provided by the constitutional amendment. When the assent was given, the relation of the State to the land and connected franchises was precisely as though a condition had been originally incorporated in the grant. (Italics are ours.)

“The mortgage or deed of trust not having been'executed until after the amendment was accepted, and the holding of the lands of the company, with its rights, privileges and franchises, having been thus made dependent upon the completion of the road within the periods prescribed, the beneficiaries under that instrument took whatever security it offered, in subordination to the rights of the State, to enforce the forfeiture provided.”

In that case it is manifest that a State constitutional amendment supervened whereby additional conditions were imposed upon the grant than those which were originally stipulated in the granting act of Congress, and hence the difference in the opinion from ours in the Sledge case, the granting act of the State in 1857 being identical with that of Congress.

But in the Sledge case we found that the road “was not completed within the ten years prescribed by the act of Congress, but was completed and finished out of time,’ in July, 1884, when the Governor certified to the Secretary of the Interior of its entire construction between the termini and along the line proposed in the act of Congress donating the land for the construction of said road.” 41 An. 900.

In this manner the condition subsequent was fulfilled. The company certainly had the right to construct the road “out of time,” as no intervening effort to forfeit the land had been made by act of Congress or judicial proceedings. 97 U. S. 291; 9’Wall. 96; 115 U. S. 307; 106 U. S. 361; 103 U. S.430.

When lands thus granted have been listed, at the instance of the grantee, and maps thereof are made and filed with the Secretary of the Interior, they are withdrawn from sale and entry, and are not, thereafter, subject to settlement or homestead by settlers. Lists of land thus certified to the State by the Commissioner of the General Land Office convey as complete titles as patents, and are not thereafter susceptible of preemption. U. S. Rev. Stat. 2449; Frasher vs. O’Connor, 115 U. S. 102; Morrow vs. Fletcher, 116 U. S. 381.

Recognizing this principle, we said in Sledge’s case:

“The land in controversy was withdrawn from public sale and entry before the defendant went on the same. His entry thereon was unlawful, and as he sets up no title other than his trespass, he can not dispute the apparent title of the plaintiff. Stilse vs. Sehull, 41 An. 816.”

The defendant is exactly in Sledge’s situation.

At most, the repealing act of 1879 had the effect of repealing the .grant of the State to the railroad company of 1857, and of restraining heT grant from the government of the United States.

That grant having never been revoked by act of Congress or judicial decree, it is impossible for the defendant to take anything thereby, because the condition subsequent has been fulfilled by the completion of the road and the acceptance of the State as grantee; and the trust is at an end, and the title of the company completecF- .and rendered indefeasible. Under this state of facts, the United' States government could not, in our opinion, recover the lands by' •suit or forfeiture from the company; and the defendant could not « by any length of possession acquire a homestead upon it.

Confessedly, the defendant has no title, and does not occupy the'' position of a good faith possessor. True it is that our predecessors • have held frequently, and correctly held, that actual settlers on the ■■ publie domain open to sale and preemption, can not be considered as; trespassers even as against the government. 6 An. 648; 5 An. 686,-Certainly not. But defendant’s case is different. Plaintiff holds a paper title out of the government, and the lands were previously -withdrawn from sale and homestead. They have passed into the «domain of private property quoad this controversy and the homestead laws are, at least, held in suspense. Defendant is a trespasser, and not entitled to the value of improvements. But we think it equitable and right that he should be relieved from the plaintiff’s claim for rents and damage, considering one demand as the just equivalent of the other.

The judgment must be reversed on the principles of law herein assigned, as well as on those announced in Railroad Company vs. Sledge, which is unreservedly affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed;' and it is further ordered and adjudged that the plaintiff be and he is hereby decreed the owner of the property claimed in his petition, and all the improvements thereon; and that • all the other demands of the plaintiff for rents and damages be extinguished and compensated by the defendant’s reconventional demand, and that the defendant and appellant be taxed with all costs in both courts.


author: McEnery, J.

text:
    No. 272.
    J. H. M Taylor vs. R. D. Ragland.
    A partner is not entitled, unless under some special agreement, to any compensation for his skill, labor or services, while employed in tliepartnersliip business, lie owes these gratuitously for the success and accomplishment o£ the partnership operations.
    A managing partner who employs his minor children, with the consent of the other partner, is entitled to compensation for their services.
    Barksdale, J\ PPEAL from the Third District Court, Parish of Claiborne.

      John Young and J. W. Holbert for Plaintiff and Appellant.

      J. A. Richardson and J. E. Moore for Defendant and Appellee.
   ' The opinion of the court was delivered by

McEnery, J.

This suit was instituted to dissolve and settle a partnership in the livery stable business entered into between the plaintiff and defendant. Until the institution of this suit there had been no adjustment of the accounts between them. The plaintiff filed an amended petition, which was allowed over the objections of the defendant. An injunction had been issued, restraining the defendant partner from disposing of the partnership effects. The amended petition does not refer to the injunction proceeding, and in no way alters or changes the substance of the petition on the principal demand. It was therefore properly allowed.

There was judgmeht dissolving the partnership, charging plaintiff, out of his half of the partnership property, §546.64, ordering an ■equal division of the property, cash and accounts, reserving to plaintiff Taylor his right to recover the amount of such accounts as should fall to him, and which had been paid to Ragland, and not ■ charged against said Ragland.

Experts were appointed, who examined the books and made a report, which was homologated. All through the trial there were objections by both parties to testimony in relation to this report. We have examined these objections, and, under the peculiar conditions of this case, we do not think the District Judge erred in his .ruling.

The books were kept in great confusion. There was no cash book,, and the entries were made on memoranda. There was no partnership account or individual account kept, except against plaintiff. There was no open account in the ledger when money-was paid. There was no contra account as to one member of the firm against the other. The experts made a statement as accurate as could have-been ascertained from the books. Their report was a substantial compliance with the order of court. But it was necessary, in order-to arrive at a just settlement, to gb outside -of the books, and to-the testimony of witnesses who had dealings with this firm. The report of the experts, however, show the exact condition of the business as stated in them. So far as it went it was correct. The plain — tiff is to some extent responsible for this condition of the partnership affairs. He was not denied access to the books, and seems to-have contented himself with arequestfor an inspection, and to have-been satisfied with defendant’s answers.

We agree with the District Judge that there was no intention on the part of the defendant to- defraud the plaintiff. That the confusion and errors were the result of ignorance and gross carelessness.

We have carefully examined the transcript, and we conclude that the judgment appealed from has done substantial justice between the parties, and we find only a small error, which it is necessary to,correct by amendment of the same.

Both parties ask for an amendment of the judgment. The plaintiff complains of the allowance to the defendant of the items for-board and services of his minor sons, and for the sum of $500 he* drew from the partnership funds for the support of his family.

The evidence is conclusive as to the work done by the sons of defendant for the partnership. The plaintiff made no objection to their employment. He was under no obligation to give their services tov the partnership. All that could be demanded was his own services,, faithfully and diligently performed in its interest. There was a great deal of testimony offered to show that Ragland, the defendant, bought articles of merchandise, for which he paid cash. Unless it is positively shown that this was partnership money, which he had collected and not accounted for, there can be no reason to charge him with the amount of money thus expended.

Therefore the proof that it costs $500 annually to support his: family is no reason why he should be charged this amount, unless, ■as stated, he owed partnership money for this purpose, for which he had not accounted to the partnership.

The defendant prays for an amendment of the judgment, so as to allow the defendant for services as business manager of the partnership affairs.

We have not been referred to the articles of partnership which stipulated that the defendant partner was to be thus compensated. He can not claim remuneration for services without a special agreement.

He owes to the partnership gratuitously his labor, skill and services so far as they may be required for the success of the partnership.

The $600 for house rent was paid out of the funds of the partnership. It is not shown that this amount was charged to the partner ■ on the books of the firm.

It is therefore ordered, adjudged and decreed that uhe judgment appealed from be amended, so that instead of plaintiff being required to pay defendant out of plaintiff’s half in the property the sum of $546.69, and in the partition, if any of the accounts which fall to plaintiff should have been paid to Ragland and unaccounted for to the partnership, the right to sue Ragland, defendant, is reserved to plaintiff, the decree shall be that each partner shall be charged with the funds or property he has received from the partnership; and if in the division of the accounts it shall be ascertained that any of them have been paid to and unaccounted for by Ragland, he shall be charged with the same. If any amount shall go into the hands of the plaintiff in said division which it was not ascertained at the time of division were paid to Ragland, the right of plaintiff to recover the amount from Ragland is reserved.

In all other respects the judgment is affirmed; the defendant to pay costs of appeal.


author: Breaux, J.

text:
    No. 293.
    Succession of James Hoss. Opposition of Taylor Noel.
    1. Accounts long' since homologated in matter of the settlement of a succession concludes all parties to them, with respect to all claims carried upon them.
    2. When an administrator admits that certain amounts have been collected by him, he will not be allowed afterward to reduce the stated sum, unless he proves conclusively that he has right to the deduction, because it is included in another item of credit fully explained and made satisfactory by the testimony.

      3. A judgment rendered against a succession during tlie course of its settlement, even if twelve months have expired since it was rendered, and no appeal has been taken, can not be bought by the attorney of the administrator except for account of the succession. Although not technically a litigious claim, it is litigious as against these persons, sufficiently, at any rate, to preclude the attorney from purchasing it for his account.
    On reimbursement of the amount paid for the purchase it becomes a claim settled.
    4. Administrators should not retain amounts they have collected for the successions they administer, and allow interest to accumulate on claims due by them.
    A PPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Bell & Randolph for Opponent and Appellee:
    1. A claim against a succession can not be rightfully acquired by the administrator or his attorney, for his individual benefit; but such purchase will bo held to have been made, for the benefit of the succession; and the administrator or his attorney will bo compelled to give up its advantages on the reimbursement of the purchase money. Stockton vs. Eord, 13 II. S. R. 682; Hyams vs. Herndon, 36 An.879; Relf vs. Ives, 10 La. 509.
    2. An administrator is personally liable for all interest he allows to accrue on a claim against the succession he administers, after said claim has been allowed by the court, and he has funds of the succession to pay it.
    3. Every presumption must be adopted against a litigant who suppresses evidence that would illustrate his case. Omnia 2>resumvmtttr contra spoliatorem. 1 Hern. Dig. 489, No. 13; 9 An. 376.
    4. An administrator’s suppression in his account of moneys received by him must be characterized as a spoliation. 9 An. 394.

      Wise <& Herndon for the Administrator, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This controversy involves the settlement of thé succession of James Hoss, and the liquidation and termination of the affairs of the commercial firm of Hoss & Noel.

Hoss died in 1873; Noel, the surviving partner of the firm, administered its affairs as liquidator about one year.

In January, 1875, he surrendered the liquidation to Jacob Hoss, administrator of the succession of James Hoss.

The partnership interest of the deceased was two-thirds, and that of the surviving partner Noel, one-third. During the time that he was in possession Noel sold goods, made collections and some payments.

The entire assets of the firm of which he had the control amounted to $43,309.35, appraised value. There were a number of uncollected notes and accounts.

With the consent of the surviving partner and that of the administrator they were placed in the hands of an attorney for collection, except those retained by the acting liquidator.' Although the attorney was active and vigilant in his endeavors to collect, part of the claims were uncollected. Of those collected and handed to the administrator, the accounts were not afterward rendered to the satisfaction of the surviving partner.

On the 17th day of February, 1877, Hoss, administrator, filed his first account of the administration, which was homologated.

On the 14th of June, 1878, an administrator’s account was filed by him, which was also opposed by the opponent in the present litigation. The District Oourt dismissed the opposition; on appeal to this court the judgment of dismissal of the opposition and homologating the account was affirmed. Sue. of Hoss, 33 An. 1257.

All items in these accounts are now settled, and have the effect and force of res adjudieata as to all persons made parties thereto.

The only questions at this time arising which have any direct relation to these accounts are as to whether counsel’s fee charged to the partnership, also the commission of the administrator, should be rejected or reduced.

In his (Noel’s) opposition to the account filed in 1878, and duly homologated, these charges were objected to.

In the account opposed — i. e., accounts of 1878 — they are carried as having been paid.

It is no longer possible to question their correctness or truthfulness of the payment. This ends all controversy about these two items of indebtedness as charged.

The next contention connected with these homologated accounts relates to the interest which the claim in the name of Jacob Hoss, against the partnership, should bear.

The opponent contends it should be 5 per cent, per annum.

The administrator allows interest at 8 per cent on this claim.

On the tableau of debts filed in 1877 we find the following:

“ Balance of account due Jacob Hoss by Hoss & Noel is shown by books of said firm, $1071.78, with interest from Jan. 1, 1874.”

The rate of interest is not stated.

We have read carefully the note of evidence taken at the time this account was homologated, and have not found any statement of interest on this claim.

If the administrator relies upon entries in the partnership book.

We have failed, after examination, to find any entry made which can bind the partnership to pay more than 5 per cent. No promise to pay eight per cent, is proven.

The interest is therefore correctly fixed in the judgment appealed from — at 5 per cent.

The assets of Hoss and Noel (except those administered and distributed by Noel as acting liquidator), together with the individual property of the deceased partner, were under the gestión of the administrator.

There will not be any necessity of determining all the questions arising during an administration which remained unsettled and in litigation considerable of the time during fifteen long years — oppositions, judgments of homologation, agreements of counsels have lessened the work necessary to determine the finalissues.

The administrator appeals from the judgment of homologation of his final accounts and supplement thereto, both of which Noel, the surviving partner, opposes.

To retain the order in which the objections in the oppositions are presented, we make mention that the first item on the debit side of the account is increased to the amount alleged as correct in the opposition and conforms to the prayer of the opposition.

In the proposition numbered 2, the opponent alleges that certain claims due the firm were collected by the administrator, but that he has failed to account for them.

That on the trial of the opposition to the first final account it was admittted that these claims had been collected.

That they aggregate the sum of $2754.61, as follows:

Amount Collected of Succession of Thompson................................................................... $470 00

*• Burns...................• ................................... 378 00

“ Gatlin........................................................... 182 07

“ McAlister............................................................... 300 00

“ G arli clc.................................................................... 03 42

“ Bickman..................................................................... 70 70

k{ {Scott............................................................................ 20 33

“ Boole..................................................................... 300 10

u Miller............................................................ 40 09

“ Oauthon.................................................................. 36 00

Cane judgment.................................................................................. 129 90

Accrued interest.............................................................................. 100 00

•Total $2,75-1 01

It is virtually admitted that the amount of $129.90 is included in an item on the debit side of (the column; leaving-a balance claimed to have been admitted and which it is contended should be accounted for of $2624.71. Of this amount $1215 and $1076 were accounted for afterward, leaving $333.71 to be added in the court a qua’s decree.

Proposition third of the opposition is directed against the claim of Phelps & Co. as carried on the account. It is no longer owned by that firm.

The claim had been acknowledged by the administrator. There was no question about its validity. They were opponents’, seeking to bring about the settlement of the succession, and their rights as creditors were nob questioned. In 1881 they chose to sell their claim to one of the attorneys of the estate for an amount less than its face value.

Some time after, the administrator personally became the owner of one-half of the claim. It was transferred to him by his attorney. It is contended that the purchase enured to the benefit of the succession. It is conceded by the administrator that the opposition is well founded in respect to his half interest in the judgment of Phelps & Co.

Respecting the attorney’s half, it is argued that a judgment is not a litigious right after the time within which to appeal has elapsed; that an attorney at law may buy a judgment.

The business relations between the attorney and the administrator are so intimate and disinterested — advice of the former so essential, that it is difficult to reach the conclusion that a law prohibiting the administrator from purchasing claims against the succession he administers should not apply to his attorney.

Their confidential relations should preclude the attorney from becoming the owner of clainjs which may conflict with those of other creditors or of the heirs of the succession. In the case at bar this contingency did not arise, nor has the estate been made to incur any loss by the purchase; on the contrary, as the litigation terminates the interested parties are largely benefited. A judgment has been settled at a considerable reduction with funds not of the succession at the time, and the estate relieved from the payment of a goodly portion of a large debt.

The case of Stockton vs. Ford, 13 U. S. Reports 682, in which the rule is laid down that if an attorney in the absence and without the consent of his client( makes such a "purchase, a court of equity will fasten upon the purchase a trust, without any inquiry into the motives or intentions of the attorney in making the purchase, and compel him to give up its benefits and advantages in the reimbursement of the purchase money, is quoted as decisive upon the subject. We are impressed with the force of the reasoning and the necessity of the rule. While in this case there was no advantage taken and none sought, yet essential provisions in matters of estates generally can not be dispensed with on the ground that the particular act in question has proven beneficial to the succession.

Properly, on payment of the purchase price the purchased judgment was carried for the benefit of the estate by the judgment appealed from, and the payments made by the administrator on this judgment since its purchase were correctly disallowed; also is correct the judgment appealed from, in so far as relates to the Curry claim, for the same reasons.

After these deductions, the differences between the administrator, and the opponent are not very great.

The administrator’s counsel in his brief states: “If we are not correct, $1403.89 must be added to $2074.50, making the sum of $3478.39 due by the administrator subject to deduction.”

While the opponent contends that $3812.10 is the balance.

By adding the amount of $333.71, before mentioned (the correctness of which the administrator denies), to the amount admitted, viz, $3478.89, the balance of each is similar, viz, $3812.10.

There are debts due which must be paid before a division of a remainder caribe made between the parties.

One of these debts is a note due to Mayer Brothers, amounting to $1322.60, with 8 per cent, interest from September 20, 1873; the other to the administrator, of $1071.78, bearing interest at 5 per cent, from January 1, 1874.

Two payments have been made on the Mayer & Co.’s note, aggregating $693.62, and $510.92 on the Hoss claim.

It is proven that $500 of this amount was paid March, 1881, and we will assume that the remainder was paid about the same time, the time of payment not being proven.

The interest on this claim from September 25, 1873, to May 26, 1877, amounts to $387.98. On the Hoss claim, from January 1, 1874, to the same date, it amounts to $182.32, making the total of both claims at that time, $2964.74.

The account on which these claims were carried was homologated on the 26th May, 1877.

In the judgment appealed from, interest was calculated to the last mentioned date, and as just stated on the ground that the administrator had funds in hand sufficient to pay at that time.

It is true that the administrator had $6621.22 at the time that his account was homologated, May 26,1877.

On June 14, 1878, when his second account was filed, payments made had reduced the amount to $2203.97, to the credit of the succession.

It is urged that the administrator paid the fee of attorneys and retained his own commission, claims not bearing interest, and allowed those bearing interest to continue unpaid.

The claims had all been homologated and made a judgment of the court.

The objections would prevail if the account had not been homologated. More than ten years ago these claims were ordered to be paid. They are protected by the plea of res adjudicada. Their correctness or incorrectness are beyond our control.

Ordinarily the interest-bearing, claims should be the first discharged, but it may be, at times, to the interest of a succession that non-interest bearing claims be paid before any other.

As it is evident that the administrator had not collected all the amounts due the estate on the 26th May, 1877, we will fix the date from which the interest shall be calculated from the 1st of January, 1883, after which it does not appear that he has made any collections.

There can be no good reason given for the postponement of payment after that time.

This date makes it absolutely certain that he had an amount to pay, and that there was not the least reason for further delay. The pending suits about that time and the sales of property urged by the administrator as the causes of delay are no longer causes for delay after the first of January, 1883.

In 1881 the sum of $3000 was applied to the purchase of a judgment against the estate, amounting to $15,000; although the funds used to effect the purchase belonged to the attorney and the administrator, their use as made has some little connection in fixing the date of interest.

We pass without comment the plea of prescription decided in the elaborate opinion of the learned judge of the District Court.

Counsel for the administrator has not argued that plea in his brief.

We presume it is abandoned; if not, the plea not being considered good by us, it is overruled.

The administrator from time to time has rendered accounts of his gestión which has been a continuing acknowledgment of his obligation to account and of the rights of the partner in the resulting residuum.

In matter of the responsibility of the acting liquidator, it is shown that in the inventory the assets of the firm, in notes and accounts, were $33,058.65.

They were appraised $27,955.67.

These were received by the acting liquidator.

His books and vouchers were deposited in the office of Wise & Herndon, attorneys, and were destroyed at the time that their office was destroyed by fire.

Noel accounts for all the merchandise he sold.

It exceeds the appraised value of the inventory $5258.95.

This includes the profits made on the goods sold under his gestión as acting liquidator.

With reference to the notes and accounts he received, he accounts, for their appraised value.

The administrator seeks to hold him responsible for their face value, a difference of. $5102.98.

We only have the totals. No part of the evidence discloses what notes and accounts were delivered to him, and what part was collected.

We only have his evidence on the subject.

His statement as to the correctness of his account is not impeached.

We therefore conclude that the amount of $27,955.67 he admits to have collected is the amount he has collected.

We have followed the development of this prolonged litigation from its incipiency to the present time, and find that the District Judge under whose immediate presence acts of administration were performed, by whom orders were given and judgment signed, has done substantial justice between the parties.

We amend his judgment on the two claims outstanding.

It is therefore ordered, adjudged and decreed that the administrator pay on the balance of account stated in the homologated tableau of debts as due Jacob Hoss by the'firm of Hoss & Noel the principal of said debt, §1071.78, and legal interest thereon from the 1st of January, 1874, to January 1, 1883, less a credit thereon of §510.92 paid January, 1884, and that he pay the claim stated in said tableau as a note for §1322.60 due Mayer Bros, by said firm of Hoss & Noel, the full principal of said note, with 8 per cent, per annum interest from September 25, 1873, till paid, less a credit thereon for the sum of §673.62 paid March 1, 1881; but that said administrator shall take no credit in his account for any part of the interest in said note accruing from and after the 1st day of January, 1883.

In every other respect (except as amended by the above decree) the judgment appealed from is affirmed, at appellee’s costs.


author: Bermudez, C. J.

text:
    No. 10,613.
    Bank of Commerce of St. Louis vs. Albert Mayer.
    A judgment rendered in another State against parties who are not thereby expressly condemned to pay jointly and severally, will not be considered in Louisiana as a solidary judgment, in the absence of proof that in that State such judgment thus rendered would be viewed and treated as a seceral judgment against each defendant for the entire debt.
    Partners, because such, are not necessarily liable severally. Though commercial partners be, ordinary partners are not so liable. Solidarity is not to be presumed.
    The admitted rights of an intervenor should be recognized.

      PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Fergus Kernan for Plaintiff and for Intervenor, Appellants.

      Henry P. Dart for Defendant and Appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to recover from the defendant $10,013.50, with 10 per cent, interest from October 2, 1888, less credits amounting to $1006.04.

. The action rests on a judgment obtained by the plaintiff against Abe Katz and Albert Mayer, for the sum claimed, before a competent court in St. Louis, Mo.

It is charged that the debt was a joint and several debt, that the judgment propounded upon, thus recognized it, and that the defendants were accordingly condemned to pay it.

A third party, alleging an interest in the demand, intervened, joining the plaintiff.

Under certain averments the plaintiff obtained an attachment against the defendant.

The defence is non-liability beyond half of the claim; that as the intervenor has an interest, the defendant has a right to plead against him, etc.; but the answer concludes with no prayer against the intervenor.

Prom a judgment decreeing the bank entitled to recover one-half only, rejecting the intervention and dissolving the attachment, the bank and the intervenor appeal, appellee asking no amendment.

The proceedings in which the judgment sued on was rendered by the St. Louis court are in evidence.

The petition declared against the defendants, as the drawers of a note for $10,000, bearing interest, and concluded by praying for judgment against the defendants for that sum and interest.

The note is in the following words and figures:

“ St. Louis, June 2, 1888.

Four months after date, for value received, we promise to pay to the order of ourselves $10,000, payable at the Bank of Oommerce, St. Louis, with interest from maturity at the rate of 10 per cent, per annum.

(Signed) “ KATZ & MAYER,

(Endorsed) “ KATZ & MAYER.”

Defendants, although duly summoned and called to come, making default, it was ordered that the petition herein be taken against them as confessed, and thereupon the court found that the defendants are indebted to the plaintiff in the sum of $10,013.50 on account of the instrument of writing upon which the action is founded. Thereupon it was considered that the plaintiff recover of the defendants the debt aforesaid, as found, with interest at the rate of 10 per cent, per annum until paid, and also its costs, etc.

On execution, $1006.04 were realized and credited on the judgment.

There is nothing to show on the face of the judgment that the defendants in the case were condemned jointly and severally to pay the amount claimed, and a reference to the petition does not establish that they were asked to be condemned thus to pay.

The notes apparently are a joint obligation. The judgment does not say that the defendants in the case are commercial partners, liable each one for tlie entirety of the debt. The signature is that, of a firm, but it may be that such firm is one, the partners of which are ordinary partners, not bound severally, but jointly only. R. C. O. 2872. Solidarity is never presumed.

We have been referred to no authority from Missouri to show that such a judgment would be there construed as a joint and several judgment against the defendants.

Under our system it surely does not amount to a judgment in solido, and can be enforced only as a joint judgment, by which the defendant now sued can be subjected to payment of half only of it.

The interest of the intervenor is recognized by the answer and established by the admission of the bank to the extent of the $6000 claimed with interest. Judgment should go accordingly.

It would serve no useful purpose to determine at the present stage whether the attachment was or not legally issued. No seizure was. made under it. By execution under the judgment herein any property of the defendant in this State can be subjected.

It is therefore ordered and decreed that the judgment appealed from be amended by recognizing the rights claimed by the intervenor, Irwin, and that thus amended it be affirmed, at the cost of appellees in both courts.