author: TALIAFERRO, J. CULPEPPER, J.

text:
    No. 3768
    Second Circuit
    MAGNOLIA PETROLEUM COMPANY v. HAWKINS
    (November 18, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Granted.)
    (May 4, 1932. Opinion and Decree on Rehearing.)
    Pugh, Grimmet & Boatner, of Shreveport, attorneys for plaintiff,' appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff sues to recover of defendant $348, alleged balance due for gas sold and furnished him during the months of May and June, 1928, under a written contract signed by plaintiff and by J. P. Hawkins, trustee, by J. R. Bevili, which is attached to and made part of the petition.

Defendant denies that he personally entered into a contract with plaintiff, as alleged, and avers that his dealings with plaintiff for the purpose of securing a supply of gas for fuel to drill a “wild cat” oil well were solely as trustee or agent of J. P. Hawkins Well Syndicate, a partnership in commendam. He admits that on behalf of said syndicate he posted a cash deposit of $500 with plaintiff before any gas was furnished and that after said deposit had been exhausted by consumption of gas the supply was cut off; that he was notified that an additional deposit was necessary in order to secure a further supply of gas, but that as said syndicate was not in a position to comply with this requirement he called on plaintiff’s agent, E. D. Holcomb, and advised him to that effect, and thereupon an agreement was reached between them whereby a sufficiency of gas to complete the well, then being drilled, would be provided, free of cost.

Exceptions of no cause of action were filed at time the case was called for trial, which were referred to the merits. The record does not disclose that these exceptions were specifically passed upon by the trial court, but as judgment was awarded plaintiff it follows that the court considered them not well founded, and, in effect, overruled them.

In this court defendant insists upon these exceptions and complains of error on part of the lower court in not sustaining them.

It is argued that the exceptions should be sustained for two reasons:

First, that effort is being made to hold defendant personally liable on a contract signed by him as trustee or agent, without alleging facts and circumstances necessary to fix or justify, if true, personal responsibility; and,

Second, that the contract sued on and attached to plaintiff’s petition fixes a period for its expiration by providing, “This contract shall continue in force until termination of deposit,” and argues that no right of recovery is vested in plaintiff for price of gas furnished to and consumed by defendant in excess of that paid for by the deposit of $500.

With regard to the second point argued for the exceptions, .the contract, in paragraph 7, takes care of that contingency by the following language, viz.:

Seventh. “That if gas is used by the party of the second part for a period of time beyond the expiration of the term mentioned herein, without further definite terms being agreed upon by the parties hereto, the condition and covenants of this contract shall extend through such period while gas is so used; but if gas. is so used after the expiration of the definite term above specified this contract may be terminated upon written notice given either party to the other party.”

The written contract contains a multitude of stipulations designed and intended to meet any contingency that might arise between the parties thereto, operating thereunder. There is no conflict between the excerpt from the contract quoted by and relied on by defendant and the provisions of paragraph 7, quoted above. All parts of a contract should be read together in its. interpretation and effect given to it in its entirety, if possible. Defendant, or his company, could not accept gas from plaintiff in excess of that paid for by the original deposit and escape the obligation of being responsible for payment of its value. The contract is clear on this point.

We think the other point raised in the exceptions well taken. It is true, as. argued by plaintiff, that under certain circumstances, one holding himself out in a representative capacity becomes personally responsible to those with whom he contracts. One instance is where an agent fails to disclose the identity of his principal; another is where he exceeds his powers.

Plaintiff argues that defendant did not disclose for whom he was acting in his negotiations for gas and therefore there is personal responsibility on his part. Defendant’s reply to this argument is that, even if this be true, the petition contains no allegations to that effect, and, as the contract is signed “trustee,” which is. admittedly the equivalent of “agent,” no cause of action is disclosed against him.

The party of the second part to the contract is declared to be “J. P. Hawkins, Trustee.” A receipt indorsed on the contract states that “J. P. Hawkins, Trustee,” has deposited $500 in cash. The contract was signed in like manner.

The petition positively alleges that defendant, through his authorized agent, J. R. Bévill, executed the contract with plaintiff. This contract is made the basis of the suit. The petition is barren of any explanatory allegations which, if proven, would be sufficient to fix personal responsibility against Hawkins, under the contract in question.

It seems to us that in the present suit the contract sued on would not be admissible in evidence under the allegations of the petition. At least the variance between the allegations of the petition and the contract itself is fatal to the suit.

A petition in a suit based upon a written contract attached is controlled by the contents of the written instrument. If there is material variance between the two, the attached document will prevail. Abadie v. Berges, 41 La. Ann. 281, 6 So. 529.

In Shaw & Zunts v. Noble, 15 La. Ann. 306, it was held:

“In actions upon contracts and deeds, if any part of the contract proved, or deed described should materially vary from the contract or deed, as stated in the pleadings, it will be fatal.”
“It is not necessary to recite the contract in haec verba, but if it be recited the recital must be strictly accurate. If the instrument be declared on according to its. legal effect, that effect must be truly stated. If there be a failure in the one respect, or the other, an exception, for the variance, may be taken, and the plaintiff cannot give the instrument in evidence.” Chief Justice Marshall in Sheehy v. Mandeville, 7 Cranch 208, 217, 3 L. Ed. 317; Davenport Locomotive Works v. Lemann Co., 118 La. 190, 42 So. 770.

In the case of Lafourche Transportation Co. v. Pugh et al., 52 La. Ann. 1517, 27 So. 958, it was held:

“Where the sole cause of action stated in the petition is a contract alleged to have been made by the duly-authorized agent of the defendant, to permit the introduction of evidence of ratification by defendant by acquiescence in what such alleged agent has done is to allow the plaintiff to shift his ground, and recover upon a cause of action not alleged.”

For the reasons herein assigned, the judgment appealed from is hereby annulled, reversed, and set aside, and plaintiff’s suit is dismissed as in case of non-suit; all costs to be paid by plaintiff.

ON APPLICATION FOR REHEARING

CULPEPPER, J.

Plaintiff-appellee’s application for rehearing sets out that the court in its original opinion, 137 So. 588, erred in holding the allegations of the petition insufficient to permit the introduction in evidence of the contract attached and made part thereof. The reason for so holding, as the opinion indicates,'was that there was such variance between the allegations of the petition and the contract as to become material and therefore fatal. Plaintiff contends the court erred in holding that there was a material variance. It is contended that:

“Upon a consideration of the entire petition, exhibits and prayer, it is apparent that plaintiff seeks to enforce the personal liability of J. O. Hawkins upon a contract recited in the exact words thereof, executed without naming a principal, by J. P. Hawkins, Trustee, and that such a petition states a cause of action; especially under a prayer for general and equitable relief.”

It is also contended that an affirmative allegation of the undisclosed nature of J. P. Hawkins’ principal is not necessary, but that the burden is upon defendant to set up and show that he acted merely as agent, and that he did in fact disclose his. principal, if such be the facts. Plaintiff cites the law as being, and correctly so, that one who, in making a contract, designates himself as agent, but fails to disclose the name of his principal, is to be considered and treated as being himself the principal, and is bound as. such. Numerous authorities, both in Louisiana and other states, so hold. Bedford v. Jacobs, 4 Mart. (N. S.) 528; Howe v. Adam & Steinbrugge, 6 Orl. App. 400; 2 C. J. Agency, par. 491, et seq.; Aber v. Pennsylvania Co., etc., 269 Pa. 384, 112 A. 444.

Defendant contends, “that the word ‘Trustee’ as used in the contract, cannot be considered as mere descriptio personae, but •that the intention, as reflected by the contract, was to bind the Trustee for the Syndicate owning the well for which gas was to be supplied, and that the contract contains no wording intended to also bind Hawkins personally.”

In Shaw & Zunts v. Noble, 16 La. Ann. 305, cited in our original opinion, plaintiffs sued for a balance due on the price of a steamer which they alleged they sold to defendant. On the .trial they offered in evidence an act of sale to defendants, not by plaintiffs, but by other parties through plaintiffs, as agents. The court held this to be a material variance in the substance alleged and excluded .the evidence. Besides, plaintiffs alleged the sale took place in July, whereas the act offered in evidence (which had not been attached to the petition) was dated in October, some three, months later.

In Davenport Locomotive Works v. Lemann Co., 118 La. 190, 42 So. 770, also cited, plaintiff, suing for the price of a locomotive, did not attach nor allege on a written contract of sale; did not allege whether it was verbal or written. On the trial, a written proposition to sell, with defendant’s signature of acceptance, was offered in evidence. The act was dated in July, but plaintiff had alleged that the sale took place in September. The offering was rejected. The Supreme Court, in sustaining the ruling, quoted Code Prac., art. 172, par. 4, and said that defendant was entitled to the specific information upon which the demand was founded, also in that connection quoted approvingly the rule stated by Chief Justice Marshall in Sheeky v. Mandeville, 7 Cranch, 208, 3 L. Ed. 317, that:

“I.t is not necessary to recite the contract in haec verba, but if it be recited the recital must be strictly accurate,” etc. (See rule in full in our original opinion.)

On re-examining these authorities, we now think they are not controlling in this case, inasmuch as in none of .them was the writtten act or contract forming the basis, of the claim sued on attached to the petition, or even referred to; also there were otherwise material differences between the pleadings and the proof offered.

In the present case the contract sued on was attached to the petition, made part of same, and became its dominent element. Furthermore, a sworn itemized statement was attached to the petition, and therefore, made a part of it, showing the account in full, the amount of gas. furnished, price, dates, for what purpose furnished, the credit given, all, as statéd, in accordance with the contract. It cannot be said, then, that these pleadings failed to acquaint defendant specifically with the facts upon which the suit was founded. As evidence that he did fully understand them, he answered, and for the first time, according to the weight of the testimony, informed plaintiff that “his dealings with * * * plaintiff in the premises were only and solely as Trustee or agent for J. P. Hawkins’ Well Syndicate,’’ “that he acted as agent or Trustee for J. P. Hawkins’ Well Syndicate, which was a partnership ad commendum. * * *” He admits that he negotiated with plaintiff for the gas in question, also .that he put up the deposit of $500, but avers that in doing so he was acting for the syndicate. Here, then, was presented a. clear-cut issue of fact between the parties, viz., whether or not defendant disclosed to plaintiff, at the time the contract was entered into, or before, the identity of his principal.

When the case was called for trial, however, defendant filed the exceptions in question, which were referred to the merits, and in effect were overruled by the court. Under the pleadings as made up to the time of the filing of the exceptions, we now think the exceptions were not well founded. If defendant be prima facie personally bound, which under the law it appears that he is, we see no good reason why plaintiff should not have the right to proceed against him personally, since the contract sued on was attached to and made a part of the pleadings and clearly indicated in what manner and for what reason defendant was sought to be held. The petition is. not at variance with the contract, except in that it makes no mention of defendant as an agent or trustee. This, we now think, is not material in the light of the attached contract, which, when construed together with the petition, shows .that defendant was apparently personally liable, unless, he should be able to show a disclosure of his principal; and defendant answered in an effort to meet that issue before the exceptions were filed. Plaintiff clearly indicated that defendant acted as an agent when it made the contract a part of its pleadings. Defendant in answer averred he acted as an agent stating for whom he was. acting, and for that reason denied liability. He, of course, is liable unless he can show that plaintiff was informed as to the identity of his principal. The question of agency vel non, .therefore, was fully set up in the pleadings before the exceptions were ever filed. We therefore think the exceptions not well taken, and our former ruling on that point is recalled and set aside, and the exceptions are overruled.

Upon the merits the evidence clearly shows that, while A. H. Henderson and E. D. Holcomb, officers of plaintiff company, with whom defendant and his representative, J. R. Bevill, negotiated and closed the contract, frankly admitted they had heard and understood that there were others interested with defendant in the project of drilling the well for which the gas contracted for was to be used, but that they were not informed by defendant, nor had they learned from any other source, who his associates were. This fact was not seriously disputed but apparently conceded by defendant. The testimony further discloses that these officials at all times looked to defendant personally to pay for the gas used, and in all other respects to carry out the contract. They could not, in fact, do otherwise, because they knew no other party to the agreement. Bevill had acted for defendant in negotiating the contract. Defendant ratified Bevill’s acts by accepting and using the gas and personally supervising the drilling of the well, as well as by his other acts and conduct. Therefore, plaintiff had a perfect right to look to defendant for pay, and not Bevill.

Under the circumstances as disclosed by the evidence, we cannot see how plaintiff could have collected its claim except from this defendant. Defendant urges the proposition that he was merely a member of a partnership which still existed, and that recourse must be had against it and not against one of its members. It is not shown that a partnership really existed, except for defendant’s bare statement to that effect. There were no articles of partnership agreement filed in evidence, nor did defendant give the names and places of residence of its members, or even that of the partnership itself, if such really existed.

As to the correctness of the amount of the gas sold, the price, etc., as reflected by the itemized account attached to the petition, there is no dispute.

For the reasons assigned, we think defendant is personally liable. Our former decree is therefore vacated, recalled, and set aside, and the judgment of the lower court is reinstated, affirmed, and made the final judgment of this court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    No. 402
    First Circuit
    DUCRE v. MILNER
    (May 7, 1929. Opinion and Decree.)
    Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    Harvey E. Ellis, of Covington, R. D. Jones, of Franklinton, and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   PER CURIAM.

This case was decided on the 13th day of February, 1929, at which time, Drauzin Ducre, plaintiff, had died, and the judgment and decree herein were therefore of no force and effect, for having been rendered in favor of a deceased person, which fact was subsequently called to the attention of this court.

Since then, Nick Ducre has been appointed and has qualified as executor of the succession of Drauzin Ducre, and he has voluntarily made himself parity to this appeal, and for the reasons stated of above date, the following decree is hereby reinstated and made the judgment of this court.

The judgment appealed from is therefore annulled, avoided and set aside. The exceptions are now overruled, and it is ordered that this case be remanded to the lower court in order that it may there be further proceeded with as the law provides; appellee to pay the cost of the exceptions in the lower court, and the cost of appeal.


author: CULPEPPER, J. TALIAFERRO, X

text:
    No. 3772
    Second Circuit (Second Division)
    EDWARDS ET AL. v. CARR ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Granted.)
    (May 4, 1932. Opinion and Decree on Rehearing.)

      Lee & Williams, of Mansfield, attorneys for plaintiffs, appellants.
    Parsons & Colvin, of Mansfield, and Craig, Bolin & Magee, of Shreveport, attorneys for appellees M. S. Roscoe and W. T. Daniels.
   CULPEPPER, J.

Plaintiffs bring this action under the provisions of Act No. 38 of 1908 to. test title .to the S. E. of N. W. % of See. 11 T. 12 N., R. 13 West, in the parish of De Soto. From an adverse judgment, they have appealed.

David Creswell was the common author of the titles of both plaintiffs and defendants. His title, which emanated from the government, is admittedly good.

Plaintiffs claim the property under the following chain of title out of David Creswell: (1) Deed dated April 1, 1867, duly recorded, from David Creswell to Esther Creswell. (2) Judgment rendered October 'l8, 1913, in the matter of the succession of Esther Creswell Robertson, deceased, recognizing William Edwards, Lizzie Clay, Ellen Frazier, and Mary Wheeler, the four named plaintiffs, together with Joe Robertson, as the sole heirs at law of Esther Creswell Robertson, and as such placing them in possession of the above-described 40 acres of land. (3) Deed from Joe Robertson, one of above-named heirs, to Ellen Gates, one of the plaintiffs, under date of December 8, 1928, duly of record. (4) Tax deed from Esther Creswell Robertson in 1916 ¡to Roy Thigpen, and a redemption deed by him to the deceased tax debtor’s heirs above named.

The defendants are the heirs of Joe T. Brown, deceased, except M. S. Roscoe and W. T. Daniels, which latter named two had cut and removed certain timber from the land under purchase from the Brown heirs. These two have called their co-defendants in warranty. The claim of the defendants to the land is based upon the following chain of title descending from David Creswell: (1) An alleged purchase by Julia Creswell from David Creswell at sheriff’s sale on May 2, 1868. (2) Deed from Julia Creswell to Israel Brown, dated December 21, 1869, duly recorded. (3) Deed from Israel Brown to R. P. Brown, dated December 22, 1871, duly recorded. (4) Deed from R. P. Brown to Joe R. Brown, dated November 27, 1876. (5) Allegation in answer, which is admitted by plaintiffs, showing defendants ¡to be the heirs and assigns of Joe R. Brown, deceased.

Defendants aver they have a title superior to that of plaintiffs, but (quoting) “in the alternative, respondents aver that by virtue of ¡the facts hereinbefore set out, their title for said property has been perfected by the prescription of ten years, which prescription is herein specially pleaded.”

Plaintiffs’ title deeds on their face appéar regular and to have been timely recorded. In the deed, however, from David Creswell to Esther Creswell in 1867, the vendor was represented by J. D. Wemple, as agent, and no power of attorney appears to have been recorded nor produced in evidence. Nevertheless, such defect as this may have caused to Esther Creswell’s title has been cured by the lapse of twenty years under the decisions of the Supreme Court in Bedford v. Urquhart, 8 La. 248, and Delabigarre v. Second Municipality of New Orleans, 3 La. Ann. 238. Defendants appear not to seriously dispute that plaintiffs have shown an apparently valid title upon its face, but contend that they have also shown in themselves a valid title, and, furthermore, in addition to such a title, they claim their title is supported by actual possession of ten years, and therefore they claim the ten-year prescription provided by law.

As to the sheriff’s sale of the property in May, 1868, defendants contend that the proceeding had in that connection divested Esther Creswell’s title to the property and vested same in Julia Creswell. It is.contended that this sale was made in the execution of a judgment which recognized Julia Creswell’s tacit mortgage against David Creswell, her husband; that this tacit mortgage antedated Esther Creswell’s deed from said David Creswell of April 1, 1867; that the mortgage rested against the property at the time Esther Creswell purchased it, and hence Esther Creswell’s title thus incumbered could not stand in the way of Julia Creswell’s foreclosure of her mortgage.

The facts connected with the tacit mortgage referred to, and of its attempted enforcement, are substantially as follows:

On February 28, 1868, Julia Creswell obtained a judgment in the district court of Caddo parish against her husband, David Creswell, dissolving the community of acquets and gains existing between them and restoring her paraphernal funds used by her husband as far back as 1862 and prior. The judgment recognized Julia Creswell’s pre-existing tacit mortgage against her hus.band’s property, and ordered same enforced. A writ of execution was issued under the judgment to the sheriff of De Soto parish, under which the sheriff seized about 800 acres of land as belonging to David Creswell in said parish, among which was the 40 acres in controversy. On May 2, 1868, after advertisement, these lands, so defendants contend, were adjudicated to Julia Creswell. There was and is no deed evidencing a sale or adjudication ¡to any one. The only evidence in this connection is the returns upon the writ. These returns, after setting forth the seizure, advertisement, and offering by the sheriff, read as follows:

• «* * * 'Whereupon Julia being the last and highest bidder, became the purchaser for the price and sum of sixteen hundred dollars.”

It is not shown in the record who the name “Julia” used in the returns referred to; whether to Julia Creswell or some other person of the same Christian name. None of the proceedings had in connection with the obtaining of .the judgment, nor of its execution, nor the judgment itself, were ever recorded in De Soto parish until December 14, 1869, at which time a copy of the judgment alone was there recorded. At the time this judgment was obtained and the attempted sale of the property in controversy under its execution, Esther Creswell, plaintiffs’ author in title, was the recorded owner thereof under her deed from David Creswell of April 1, 1867. David Creswell was the admitted recorded owner on that date.

It is contended by defendants that, because of the existence of Julia Creswell’s tacit mortgage against any and all of David Creswell’s property, including the 40 acres in dispute, even though David Creswell had sold this 40, Julia Creswell had the right to have it sold to satisfy her judgment subsequently obtained on her tacit mortgage. In the first place, such a mortgage, we think, would not prevent David Creswell from selling the property, although the mortgage did rest against it at the time. And, secondly, for Julia Creswell to have proceeded legally against this property, since it had gone into the hands of Esther Creswell, a third party with her recorded title, it would have been necessary for her to have resorted to an hypothecary action. She did not do this. Under the law then, as now, such a course was necessary before Esther Creswell could have been divested of her title. Her title certainly could not be divested simply by proceeding against David Creswell after he had sold the property and placed the title of record. It was then, and is now, the law, that only where one holds a conventional mortgage containing the pact de non alienando that the holder of the mortgage can ignore the sale of the property by the mortgage debtor and subject the property thus burdened by having it sold. Such a course was not taken by Julia Creswell; hence we do not think ¡title to the property was vested in her. This and the other irregularities shown by the evidence in this connection cannot be construed, we think, to show a divestiture of Esther Creswell’s prior recorded title. It is our opinion, therefore, .that plaintiffs have thus far shown a title in themselves in the 40 acres in controversy that is superior to that of defendants..

Regarding defendants’ alternative plea of prescription, the testimony discloses the following character and extent of possession by their predecessors, upon which the plea is based:

The 40 acres in controversy was a portion of a 320-acre tract deeded by Julia Creswell to Israel Brown on December 21, 1869. The evidence shows, and it is so admitted by counsel, that neither Israel Brown nor his successors took actual possession of this 40 acres. It is contended, however, that the evidence does show that the Browns permitted Green Creswell and William Sharp to live on the property for a number of years. While it is true that Green Creswell and William Sharp lived on this land for many years, and possibly the Browns were aware of it, the evidence is clear that the occupancy by Creswell and Sharp was not as tenants of the Browns, either at will or otherwise, but was rather a hostile one to any claims Israel Brown or his successors held upon the land.

Israel Brown sold to R. T. Brown on December 22, 1871, 120 acres of the 320-acre tract. The 120 acres sold was the S. % of N. W. Yi of Sec. 11 and E. Ya of E. Ys of S. E. Yi of Sec. 10, Tp. 12 N., R. 13 West. This included the 40 acres in dispute, which is the S. E. Yi of N. W. % of Sec. 11. Since this 40 was completely segregated in the sale from any of Israel Brown’s remaining lands acquired in his deed from Julia Creswell, such possession of this 40 as he might have had by virtue of possession of some of his remaining lands was thereby discontinued. Any possession thereafter of the disputed forty would have to have been by his successor, R. T. Brown. And, after R. T. Brown sold the 120 acres to Joe Brown, November 27, 1876, the latter would have to have possessed the 40, either by actual possession of the 40 or by possessing some portion of the 120 contiguous to the 40. Since it is shown that neither of the Browns ever had actual possession of the 40 in question, they would have to rely on possession of some portion of the 120 contiguous to it. The only portion contiguous to this 40 is the 40 lying immediately west of it, which is the S. W. Yi of N. W. Yi of Sec. 11. Any possession which R. T. or Joe R. Brown might have had of the E. y2 of E. % of S. E. % of Sec. 10 would not constitute possession of the S. E. Yi of N. W. Yi of Sec. 11, the 40 in controversy because the two tracts do not lie contiguous to each other. These •two tracts have a common point of contact only, in that the northeast corner of the tract. in section 10 corners with the southwest corner of the tract in section 11. But this does not make them contiguous to each other. Lee v. Giauque, 154 La. 491, 97 So. 669. The two tracts are distinct and separate from each other, and, where such tracts of land are conveyed in the same deed from the same person, the rule that possession of a part under title of the whole is possession of the whole has no application to the tract not actually possessed. Gulf Refining Co. v. Jeems Bayou Hunting & Fishing Club, 129 La. 1021, 57. So. 322.

Therefore, unless R. T. Brown, or his successor, Joe R. Brown, took actual possession of the S. W. Yi of N. W. Yi of Sec. 11, which is. contiguous to the 40 in controversy, the defendant’s claim of possession must fall. We find nowhere in the record any evidence to show any such possession by either of the Browns.

Defendants’ only witness, Elias Howell, by whom it was sought to prove possession, merely testified that his father rented from Israel Brown, and worked a field on the S. E. Yi of N. E. Yi of Sec. 10, the 40 on which the Gulf Refining Company’s pump station is now located. The witness later, however, appears, to testify that it was the 40 sold to Mr. Herdon which is the S. W. Yi of N. W. Yi of Sec. 11. On account of this apparent contradiction, it is difficult to determine which 40 the witness had in mind. The more reasonable view to take is that it was the S. E. % of N. E. Yi of Sec. 10, because Isreal Brown had sold the Herdon 40 to R. T. Brown. Hence Israel Brown would have had no occasion to rent land to Howell that he had sold. This testimony merely shows that Israel Brown had possession through his tenant, Howell, of one of the 40’s which he did not sell to R. T. Brown in 1871. It can in no way relate to any possession by R. T. Brown of any portion of the 120 acres he bought from Israel Brown.

Aside from ithis, Elias Howell testified that Green Creswell was living on the property in controversy at the time Howell’s father moved into the community in 1871, and continued to live on it a long time thereafter. He testified that, after Green Creswell moved off of the land, William Sharp lived on it, and, after he moved away, no one lived on the property. He states further that the property was commonly referred to as belonging to Esther Creswell. Howell testifies that Mr. Brown (does not state which Brown) claimed to him some time after William Sharp moved away that the 40 belonged to him (Brown) and hired Howell to cut some wood from it during two seasons. But witness states he had never heard of any of the Browns, claiming the property before that' time.

William Sharp, witness for plaintiff, testified that Green" Creswell moved on the 40 right after the Creswell colored people (who belonged to David Creswell) were freed, and that he claimed to own it for a while, and Mr. Joe Brown came and claimed it, that Green Creswell and Mr. Brown “got to squabbling about it,” and he (Sharp) went and bought him a home. This clearly indicates that Green Creswell and William Sharp’s possession was hostile to Brown. Sharp states that Green Creswell lived on the place over ten years, then left it, and that he (Sharp) lived on it seven or eight years after that. Both periods together would make seventeen or eighteen years, dating from right after the Creswell negroes were freed at end of the Civil War, or to about 1881, or 1882, during which the property was. in the possession of Green Creswell and William Sharp, hostile to the claim of Brown. And during all this time, according to this witness, and the plaintiffs’ witness, Elias Howell, the property was generally known and referred to throughout the community as that of Esther Creswell. She herself claimed it, as did her heirs after her.

The burden is upon defendants, who have alleged possession, to prove same, and in this we think they have failed. Plaintiffs having shown a title superior to that of defendants, and the latter having failed to prove the possession necessary to overcome by prescription plaintiffs’' superior ■title, the case, we think, is with the plaintiffs. By an agreement between the parties in the record, the value of the timber cut and removed by defendants M. S. Roscoe and W. T. Daniels from the land is of the value of $300. These two defendants have called the other defendants in warranty and prayed for judgment against them for such sum as might be awarded for plaintiffs against said two defendants.

Therefore, for the reasons assigned, the judgment of the lower court is reversed, and there is now judgment in favor of plaintiffs and against defendants, decreeing plaintiffs, to be'the owners of the property in controversy, and as such entitled to the possession thereof.

It is further decreed that plaintiffs have judgment for, and recover of defendants in solido, the sum of $300, same being for the value of the timber cut and removed from the land by M. S. Roscoe and W. T. Daniels, together with 5 per cent per annum interest thereon from judicial demand until paid.

It is further decreed that the call in warranty herein be sustained, and that there be judgment in favor of M. S. Roscoe and W. T. Daniels, as prayed for by them, against their warrantors, Robert T. Carr, Mrs. Susie H. Guy, Mrs. Alice Jack-sons, and E. Preston Brown, the other defendants, named herein, individually and in solido, for the sums and amounts respectively cast against said Roscoe and said Daniels.

It is further ordered that the costs be paid one-half by the defendants and one-half by the warrantors.

ON APPLICATION FOR REHEARING

Argued before STEPHENS, CULPEPPER and TALIAFERRO, JJ.

TALIAFERRO, X

Application for rehearing was filed by all defendants. It was granted without restriction and the case has been re-argued and briefed fully. Several assignments of error in our former opinion, 137 So. 637, and decree have been stressed, including the following:

(a) In rendering personal judgment against the defendants who were brought into the case by substituted process.

(b) In holding that Mrs. Guy and her co-heirs (defendants) were responsible to ■their co-defendants, Roscoe and Daniels, in warranty, for the entire price of sale of timber to said Roscoe and Daniels, notwithstanding other property was included in this sale, for this price, which is not involved in this suit.

The other assignments, of error relate to questions raised and argued thoroughly before this court at first trial. All of them were maturely considered and discussed in detail in our original opinion. Further consideration of them has not altered the conclusions formerly reached by us.

It appears that Mrs. Guy is the only defendant, save Roscoe and Daniels, who is before the court through counsel. Her three co-heirs were represented by a curator ad hoc appointed by the court. No personal judgment can be rendered against them under these circumstances.

The timber sold by defendants to Roscoe and Daniels was located on 47 acres of land. The price was $300. The timber was all cut and removed before this suit was filed, 85,000 feet in all, of which 75,000 feet were cut from the 40-acre tract in dispute. It is admitted by all parties 'that this 75,000 feet had a value of $300. Defendants. contend that the measure of their liability on the obligation of warranty to Roscoe and Daniels is to be determined by taking 85,000 feet as a basis. They are correct, because they sold this quantity of timber for $300. On a proportionate basis they received $264.75 for the 75,000 feet. As Roscoe and Daniels actually cut and removed the timber, they are liable in solido to plaintiffs, for its value. The liability of defendants on their warranty to Roscoe and Daniels is several.

For the reasons herein assigned, the judgment of the lower court is reversed, and there is now judgment in favor of plaintiffs and against defendants decreeing plaintiffs to be the owners of the land in controversy and as such entitled to possession thereof.

It is further decreed that plaintiffs have and recover judgment against defendants M. S. Roscoe, W. T. Daniels, and Mrs. Susie H. Guy, in solido, for $300, with legal interest thereon from judicial demand until paid.

It is further ordered and decreed that the call in warranty herein be sustained as against Mrs. Susie H. Guy and, for the reasons herein given, there is judgment in favor of said M. S. Roscoe and W. T. Daniels and against her for $66.19, with legal interest from judicial demand. The rights of Roscoe and Daniels as against the other warrantors is - reserved to them.

It is further ordered that costs of suit be paid by defendants Mrs. Susie H. Guy, M. S. Roscoe, and W. T. Daniels.

And as amended hereby our original opinion and decree is reinstated and made the final judgment of the court.


author: TALIAFERRO, J.

text:
    No. 4137
    Second Circuit (Second Division)
    EQUIPMENT FINANCE CORPORATION v. ATKINS
    (March 16, 1932. Opinion and Decree.)
    Argued before DREW, STEPHENS and TALIAFERRO, JJ.
    Wm. C. Boone, of Homer, and Goff & Goff, of Arcadia, attorneys for plaintiff, appellee.
    Wm. F. .M. Meadors, of Homer, attorney for defendant, appellant.
   TALIAFERRO, J.

This suit was brought by plaintiff to recover judgment against defendant for $1903.30 with interest and attorney’s fees and to foreclose via ordinaria a chattel mortgage against some movable property mortgaged by defendant to secure the debt, evidenced by his seventeen promissory notes. The notes were originally in favor of Fisher Machine Works Corporation of Kansas City, Mo., and were by that company endorsed over to another company and by it to plaintiff.

Plaintiff alleges that it is a corporation, legally organized under the laws of the state of Illinois, and that it acquired said notes for value, before maturity.

, Defendant’s answer begins with a general denial to each and every allegation of plaintiff’s petition except such as may be admitted. He admits execution of the notes sued on and the giving of the mortgage to secure same. He denies that the endorsement of the Fisher Machine Works Corporation on said notes is genuine and denies the authority of the person who endorsed said notes for that company. He also denies the genuineness, of the endorsement of the Commercial Investment Trust, Inc. (plaintiff’s assignor), on said notes and the authority of the person endorsing for that company.

The case was tried upon the issues thus tendered and plaintiff was given judgment as prayed for. Defendant appealed.

In brief, defendant submits that the questions for the court to decide are whether the plaintiff, by legal proof, has established:

(a) That plaintiff is a corporation as alleged.

(b) That the endorsement of the Fisher Machine Works Corporation on the notes is. genuine and ithat the person endorsing for that company had authority to do so.

(c) That the endorsement of the Commercial Investment Trust, Inc., is genuine and that the person endorsing for it had authority to do so.

Defendant is without interest to challenge plaintiff’s ownership of, or his right to sue on the notes in question unless an effort is attempted by fictitious endorsement or assignment to deprive him of some substantial ground of defense against the original or true owner thereof. He makes no such charges.

This principle has been repeatedly affirmed by our Supreme Court.

Spears v. Spears, 27 Ann. 642.

Case v. Watson, 21 Ann. 731.

Ran v. Lathan, 11 Ann. 276.

Richard v. Harrison, 19 Ann. 181.

Quick v. Little John, 156 La. 369, 100 So. 531.

The Legislature has recognized this principle in Sec. 51 of Act No. 64 of 1904:

“The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.”
“Every holder is deemed prima facie to be a holder in due course.” Id., sec. 59.

If the maker of a note has a legal or equitable defense against it he cannot be shut off from the exercise of that defense by a fictitious assignment of the note to some third person interposed for the purpose of defeating the right. Under such circumstances he has the right to question the title of the one suing on the note in order that he may protect his own rights.

It is not contended by defendant in brief that plaintiff is not the bona fide owner of these notes. He contents himself with challenging the genuineness of the two endorsements on them and the authority of the officers, acting for the endorsers. This defense cannot avail him. It is not necessary to effect a transfer of a note that it should be endorsed by the payee. Title may pass from one person to another without written evidence. This was held in the case of Maddox v. Robbert, 165 La. 694, 115 So. 905, 906:

“A note payable to order may be transferred without endorsement, and the transfer may be proved by parol testimony.”

Also in Achee v. Williams, 6 La. App. 316.

Plaintiff took the depositions of officers of the Fisher Machine Works Corporation and of the Commercial Investment Trust, Inc., under commissions for the purpose of establishing the. genuineness of the endorsements on said notes. . Admissibility of this testimony was objected to by defendant on the ground that it was not the best evidence of the authority of the persons making the endorsements for the companies. The objection was overruled and the depositions admitted in evidence. The ruling was obviously correct. Whatever else may be said of the testimony of those officers, it certainly establishes a transfer of the notes by the Fisher Machine Works Corporation to Commercial Investment Trust, Inc., and transfer by that company to plaintiff for value and before maturity and under the decision in Maddox v. Robbert, supra, this is sufficient, even though the endorsements on the notes be ignored.

Defendant’s effort to inject the issue of lack of proof of plaintiff’s corporate existence is abortive. Exceptions directed against the corporate capacity of a plaintiff are dilatory in their nature and should be filed in limine litis. Judgment by default was taken herein on March 2, 1921, which cut off the filing of such exceptions. C. P., art. 333.

The effort to raise the issue by general denial in answer filed thereafter was ineffective. This doctrine is recognized in the following cases:

Jack McDonald et al. v. J. Warren Burns, 2 La. App. 1; Dunlevy Packing Co. v. J. Juderman, 1 La. App. 476.

For the reasons herein assigned the judgment of the lower court is affirmed.


author: CULPEPPER, J.

text:
    No. 4166
    Second Circuit
    HICKS v. LEVETT ET AL.
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Vinson M. Mouser, of Columbia, attorney for plaintiff, appellee.
    Cas Moss, of Winnfield, attorney for defendants, appellants.
   CULPEPPER, J.

Mrs. S. J. Levett, defendant herein, filed suit on February 9, 1931, via executiva, against plaintiff herein, Mrs. C. A. Hicks, to foreclose on the second and third notes of a series of three vendors’ lien and mortgage notes of $200 each, executed by plaintiff as credit portion of purchase price of a lot and hotel building and certain furniture and fixtures therein, described as follows:

“Lot No. 10 and beginning at N. E. corner of Lot 11 and running S. 135 ft.; thence west 48 feet; thence north 135 feet; thence east 48 feet to place of beginning, all in Kirkland Addition to the Town of Sikes, as per plat * * * on file in Recorder’s. Office of the Parish of Winn, Louisiana, together with all the improvements and furniture and fixtures now in and belonging to the hotel.”

The property had been seized under the proceedings, and was being advertised by the sheriff for sale when the present suit was filed to enjoin same. The plaintiff in injunction is the maker of the notes, and defendant is the original payee and holder thereof. The total consideration for the sale of the property was $1,400, payable $800 cash and the balance of $600, represented by three notes above referred to, made due and payable annually,' beginning June 1, 1929. The act of sale was executed December 7, 1928, before P. K. Abel, notary public, at Winnfield, parish of Winn, La.

It is alleged by plaintiff that defendant sold to her in said act of sale, and plaintiff purchased, the real estate described (quoting) “Together with all the improvements and furniture and fixtures now in and belonging to the hotel,” referring, of course, to the furniture and fixtures in and belonging to the hotel at the time of the sale. It is further alleged (quoting):

“Par. 5. That the consideration for the payment of said $800.00 cash and the executing of said notes for a total of $600.00, by petitioner, was the obligation of the said Mrs. S. J. Levett in said act of sale to deliver to petitioner the said above described real estate and the furniture and fixtures and belongings, i. e., used in connection with the aforesaid hotel.
“Par. 6. That the above, described real estate, including the hotel building, and a few small items of the furniture and fixtures sold her, were delivered to her b^ the said Mrs. S. J. Levett in accordance with the obligations, of the said Mrs. Levett as vendor, but that said Mrs. Levett failed to deliver * * * a great number of, articles of furniture, * * * of the total value of $526.20, the itemized description and values of said items being as follows, to-wit:” (Here follows -a list of some thirty articles of furniture and fixtures, each separately valued and totaling the sum of $526.20.)

It is further alleged that, notwithstanding defendant represented that she was the owner of all of said furniture and fixtures and obligated herself to deliver same to petitioner, she did not own those named in the list, but same were owned by one Walter Higdon. Higdon was occupying the hotel at the time under a lease, and had partly supplied it with the furniture and fixtures enumerated in the list embodied in the petition. This was admitted by defendant both in her answer and on the witness stand, and she also admits she did not deliver these articles to plaintiff.

Plaintiff further alleges that defendant’s failure to make delivery of the articles complained of constituted a failure of the consideration for which the notes were given and “said failure * * * being to the extent of $526.20, thereby extinguishing the debt represented by said notes * * * to the extent of $526.20. Petitioner therefore shows that said failure of consideration reduced the amount due on said notes to much less than petitioner has already paid and ¡therefore the debt which the said Mrs. S. J. Levett seeks to enforce * * * has been completely extinguished in a legal manner.”

Plaintiff alleges she made payments of sums aggregating $403.28, at various times, on the series of three notes. All of these payments, she set out, were made under protest and through error. It is also alleged that the $403.28, plus the $526.20, which represented the value of the furniture and fixtures not delivered, amount to enough, not only to extinguish the sum sued for on the notes, but will leave a balance of $329.48, which plaintiff is entitled to recover of defendant in the form of a money judgment over and above the amount necessary to extinguish the notes. The prayer of plaintiff’s petition is in accordance with these allegations.

To these pleadings defendant filed exception of no cause or right of action, a plea of prescription of one year in bar of plaintiff’s right to recover, and, in the alternative, that plaintiff is endeavoring to plead an unliquidated claim and has on such a claim obtained a temporary restraining order without bond, which she has no right to do under the law; that plaintiff, under her pleadings, is estopped from attempting to secure a restraining order without furnishing bond for same/ These exceptions and pleas were overruled by the court.

Taking up these exceptions and pleas in the order presented:

(a) Defendant excepts that plaintiff had no right to a restraining order without bond because her suit is for a diminution or reduction of price rather than for a failure of consideration; hence in such a case bond must be furnished under the law. If exceptor’s view be correct that security was required, it would not necessarily show the lack of a right of action. But plaintiff’s suit is not primarily for reduction in price; it is one based upon a failure of consideration, as a result of which the debt sued on is claimed to have been extinguished. Article 739 of the Code of Practice provides that the debtor can arrest the sale of the thing by alleging “that it (the debt) has been extinguished by transaction, novation, or some other legal manner.” Article 740 of the Code provides,' when the judge grants an injunction for any of ithe reasons set out in article 739, he ■ shall require no security. Phillips v. Adams Machine Co., 52 La. Ann. 442, 27 So. 65, 67; United Motor Co. v. Drumm, 1 La. App. 762. A rule was issued in accordance with Act No. 29 of 1924, which was regularly tried, and, in accordance with the plain provisions of the articles of the Code above named, the judge properly ordered the preliminary injunction to issue without bond. The exception was therefore properly overruled, and the ruling is sustained.

(b) Defendant interposed the prescription of one year in bar of plaintiff’s right to recover. This, plea is not now urged, and has apparently been abandoned. At all events, it is without merit.

(e) Defendant also excepted, in the alternative, that, in event the court should hold that the suit is not one for a diminution of the price, the plaintiff is endeavoring to “plead an unliquidated act as a cause or right upon which a temporary restraining order and preliminary injunction should issue without * * * bond, and under the law an unliquidated account affords j no ground for enjoining an executory process.” To this we think it sufficient to say that plaintiff is not pleading an unliquidated claim. Plaintiff is not suing on an open account, not acknowledged, nor upon an unliquidated claim for damages. She is seeking to have decreed extinguished so much of the price she was to pay for the whole property as is represented by the value of that portion of it which was not actually delivered. To say she could not do this because the claim is said to be unliquidated and not fixed or acknowledged would be to fail to give effect to the law which extinguishes an obligation of one party to a contract for failure of the other • party to discharge his obligation. This very question of the ' right to have declared extinguished pro tanto so much of a debt for the purchase price of property as is. represented by the value of that portion not delivered has been settled favorably to the purchasing debtor in the case of Phillips v. Adams Machine Co., supra. In that case an exception was tendered similar to the one made here. The plaintiff in that case, in addition to claiming the extinguishment of his obligation to the extent of the value of the parts of machinery not delivered, also claimed extinguishment because of defects of those which were delivered. He also .claimed loss of profits due to enforced idleness occasioned - by unnecessary delays in making delivery, and that this loss of profits, should also be applied as offset in part of his obligation. It was asserted that these latter claims fully compensated ^or offset whatever amount which might remain due, after deducting the value of the parts not delivered. Thus were presented issues of precisely the same nature as those that are presented here. The court, in passing upon the exception in the cited case, after recognizing that under article 2209 of the Civil Code, as well as some decisions “compensation takes place between two debts. * * * which are equally liquidated and demandable,” said: “Upon the other hand, it is equally well sustained by reason, as well as authority, that, if the consideration for which a note was given thereafter fails, there can be no recovery on the note in the hands of the original holder, and, if it fails in part, the holder can only recover pro tanto, and to the extent that there has been no failure” — citing a number of authorities.

The court concludes, thus:

“We are of opinion, therefore, that the plaintiffs were entitled to enjoin the seizure to the extent of the alleged failure in the consideration of the notes sued on, but that it was properly dissolved in other respects. Code Prac., art. 743; 1 Hen. La. Dig., p. 665 (2), No. 3.”

Under these authorities we conclude the plea to be not well taken, especially in so far as it affects, the amount represented by the balance on the notes. The actioof the lower court in overruling the excetion was therefore correct.

(d) Defendant also interposed the plea of estoppel, averring that, by her acts, as set up in her petition, defendant went into possession of the property under the deed, paid one note in full and most of the second note, without taking any steps until this suit was filed looking to an adjustment of the alleged non-delivery of a portion of the property purchased. This plea, it appears, is based upon the proposition that plaintiff by her acts has ratified the sale. Counsel cites Revised Civil Code, art. 2544. This article treats of actions for reduction of price, stating that such actions are governed by the same rules as apply to redhibitory actions. This is not, as we view the case, an action for reduction of the price by reason of some defect in the thing sold. It involves the failure of the seller to make delivery.

“The seller is bound to two principal obligations,” says article 2475 of Civil Code, “that of delivering and that of warranting the thing which he sells.”

In the case of a breach of contract by the seller of an article by non-delivery, the buyer is entitled to refund of moneys paid by him. Pratt v. Craft, 20 La. Ann. 291.

Under article 2490, C. C., “The obligation of delivering the thing includes the accessories and dependencies, without which it would be of no value or services, and likewise everything that has been designed to its perpetual use.”

In cases where the buyer is evicted, article 2506 of the Code provides, that the party evicted has the right to claim against the seller the restitution of the price. Article 2514 provides that, “If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.” Lockwood Oil Co. v. Atkins, 158 La. 610, 104 So. 386.

The above articles, of the Civil Code are found under the head of tradition or delivery as treated under obligations of the seller, and we think the same rights of the buyer and obligations of the seller obtain in cases involving failure of delivery, such as this one is. The buyer has the right to reject the sale, or retain that portion of the property actually delivered, without subjecting himself to estoppel in case he elects to accept delivery of and retain the part delivered or offered to be delivered. Under none of these provisions of the Code do we find any conditions tending to estop the purchaser from asserting his right to recover on account of nondelivery, conditioned, of course, upon the purchaser paying the price.

All of these exceptions and pleas, were overruled by the lower court, and we think correctly so.

Defendant then answered admitting the sale for the price and terms set forth in the petition. The description of the property given in the petition is the same as shown in the deed. Defendant denies that the description contains, or was meant to contain, the articles, of furniture and fixtures as alleged in the petition to have been embraced therein, and not delivered. Defendant avers that plaintiff had been informed previous to the execution of the deed, and well knew at the time, that the articles complained of did not belong to plaintiff, but belonged to Walter Higdon, lessee of the hotel building, and that they were, in fact, not embraced in the sale, and not intended or understood between the parties to be so embraced. There is no denial or express admission in the answer as to the value of these articles alleged on by plaintiff. Defendant contests plaintiff’s right to have the mortgage debt extinguished as well as the demand for a money judgment. She demanded in reconvention 20 per cent of the amount sued for by her on the mortgage notes as statu? tory damages, and prayed for judgment accordingly and for dissolution of the preliminary writ of injunction which had been granted on previous trial of rule for same.

Upon these issues the parties went to trial. At the conclusion of the testimony defendant filed exception of no cause or right of action, and plea of estoppel, both of which were overruled by the court, whereupon judgment was rendered decreeing the debt represented by the two notes sued on to be fully extinguished, ordered the vendor’s lien and mortgage against the property canceled from the records, and that the preliminary injunction be made final and further proceedings to sell the property stayed. The judgment is silent as to the demands for moneyed judgment for $329.84. In the written opinion by the court, filed in the record, the judge states, that this demand was rejected. The demand in .reconvention was also rejected.

Defendant filed a motion for new trial, which was refused, and we think properly so. The grounds set forth in the motion were that defendant was unable to secure the attendance of Walter Higdon as a ¡witness; that Higdon would swear, if present, that he informed plaintiff previous to the sale that the furniture in question belonged to him, and not to defendant. This was testified to by other witnesses who were present; hence, the testimony was only cumulative. The matter of granting a new trial is largely within the discretion of the trial judge; and we do not think his ruling in denying it on the showing made, manifestly erroneous.

In the exception and plea of estoppel filed at the conclusion of the testimony, it is contended that the testimony shows that plaintiff accepted the property, including the household furniture and fixtures, under the terms and by virtue of the deed; that plaintiff used and occupied the same for more than two years before filing of his suit; that she voluntarily and without duress of any kind paid the first note and practically all of the second note, with full knowledge of all of the facts of which she now complains; that for these reasons she is estopped from claiming a failure of consideration and seeking judgment for the amount claimed.

It is true that plaintiff took possession of the hotel with what furniture was left after Higdon removed his; that she continued in possession up to the filing of the foreclosure proceedings, covering a period of over two years, and in the meantime, made several payments on the notes. She does not deny knowing that the articles not delivered did not belong to defendant when possession was taken; on the contrary, she alleged in the petition she knew that fact. She did allege, and submitted evidence in support of the allegation, that she did not have this knowledge at the time she purchased the property, and that she had demanded of defendant that she make delivery, and that delivery of the remaining property was accepted under these circumstances. This was denied by defendant. The testimony on this point is in conflict. The trial judge accepted plaintiff’s version, and we find no good reason to disagree with him; hence we shall adopt his views.

It is plaintiff’s contention that the clause in the deed reading, “together with all improvements and furniture and fixtures now in and belonging to the hotel,” embraced the articles claimed by Walter Higdon, which is .the property about which this dispute has arisen. Defendant contends that this clause does not indicate the inclusion of these articles; that a correct interpretation of the clause embraces only such furniture and fixtures, as belonged to the hotel, which would exclude, and was specially so worded, as to exclude the articles belonging to Higdon. The words “all * * * furniture and fixtures now in * * * the Hotel’’ would seem to include all, and would, in its literal meaning, exclude nothing.

Hr. Abel, the notary who wrote the deed, places this, construction upon the language used. While plaintiff and defendant differ in their testimony as to their .understanding in this particular, the trial judge, as we have seen, accepted the version of the plaintiff, and it appears to us to be the more reasonable. If .the property of Higdon was intended to be excluded, it could have been easily so stated, and should have been.

Under Civ. Code, art. 480, the sale of a house “with all that is in it” is interpreted to include all movables, effects in the house, other than money, credits, or other rights.

Having reached the conclusion that the articles of furniture and fixtures in question were embraced in the act of sale and that same were not delivered, it is clear that the consideration for which the notes were given failed to the extent of the value of the articles hot delivered. Their value was alleged .to be $526.20, which was not denied; therefore it must be taken as admitted. Besides plaintiff testified as to these values substantially as alleged.

As to plaintiff’s right to the extinguishment of the amount of the price of the property yet unpaid, we entertain no doubt. In Phillips v. Adams Machine Co., above cited, which was a case very' similar to’ this one on this point, the court said;

“It is very clear to us. .that the failure of the payee of a note to fulfill the obligation which constitutes the consideration for which the note was given extinguishes, in a legal manner, the obligation of the maker of the note to pay it.”

And in that case, as in the present case, it was only a portion of the movable property sold that was. not delivered, yet the court held:

“* * * The defense cannot be regarded as a plea in compensation, but as an averment or claim, by way of defense, .that the obligation to pay the notes was pro tanto extinguished and discharged.”

If plaintiff had accepted the residue of the property without complaining to defendant about the portion not delivered, had used it, and made the payments from time to time without complaint, such a course of conduct might have indicated that she knew the articles not delivered were not to be included in the sale. But, according to her testimony, and the court evidently believed she was telling the truth, plaintiff made numerous complaints to defendant. The testimony shows that plaintiff first learned that the articles in question did not belong to defendant on Sunday following the execution of the deed on Friday. Plaintiff sent word of what she had learned to defendant on Monday following. On Tuesday or Wednesday following, when Mr. Higdon was. getting ready to move these articles away she sent for defendant. Plaintiff then demanded that defendant deliver her the furniture, and defendant replied that the articles belonged to Higdon and he had the right to take them. Plaintiff permitted Higdon to move them away under her protest, and she took over the hotel with what was left under protest. Thereafter when she made payments on the notes to defendant she protested each .time that she ought not to be compelled to pay the notes because she was paying something for nothing. Under these circumstances, we do nof think plaintiff can be held to be estopped from at least claiming the extinguishment even at this late date of the comparatively small balance on the notes.

The claim for a money judgment for the balance of $329.48 appears to be a more serious question. The trial judge rejected this, part of the demand. In his written opinion he assigns several reasons for refusing the personal judgment, viz.: That plaintiff is estopped to that extent; that the property as a whole was not listed and valued separately, article by article, and “it would perhaps be a hardship on the defendant to award judgment against her upon the valuation fixed in the pleadings for the property of a third person which she did not own.” The judge states he believed “however that the property” (having reference to the property not delivered) “is worth fully an amount” sufficient to extinguish the balance unpaid on the notes.

The correct view on this point, as we see it, considering our conclusions on the previous points raised, is that plaintiff paid in cash and by notes $1,400 for the property as a whole. Of that amount $526.20 was extinguished by reason of the failure to deliver the part of ,the property called for in plaintiff’s petition. This valuation of these articles was fixed as of the date delivery was to have been made. Prom this is it not to be deduced that the value of the portion of the property delivered was equivalent in amount to the difference between $1,400 and $526.20, or $873.80? We think it should be. Adopting the theory of the case which the lower court adopted, and which we .have adhered to, that defendant sold and plaintiff purchased the whole property, inclusive of the part in controversy herein, we would necessarily be forced to the conclusion that the whole was at the time worth the price called for in the deed, and that, the part not delivered was worth the sum at which it was valued by plaintiff in her petition and testified to by her on the witness stand, and not denied by defendant in the answer. Defendant did not otherwise object to, or attempt to contradict, the valuations as testified to by plaintiff. In the Adams Machine Company case above cited, the court held specifically that:

“If the consideration for which a note was given thereafter fails, there can be no recovery on the note * * * and, if it fails, in ¿art, the holder can only recover, pro tanto, and to the extent that •there has been no failure.”

In the case of Young v. Guess & Swanson, 115 La. 230, 38 So. 975, the plaintiff brought suit on a note for $2,000, as representing the balance due by defendants on a sawmill and appurtenances, the original consideration for the purchase price of which was $10,850. Defendant by way of defense set up a claim for $2,747.50, being the value of certain of the appurtenances which were never delivered. The lower court gave judgment for the full amount claimed by defendants, which was affirmed on appeal, notwithstanding defendants’ claim exceeded the amount of the note sued on. Defendants, however, in that case had paid nothing to plaintiff after the sale, but resisted payment, which forced plaintiff to file suit. If plaintiff in the present suit had pursued the same course as did defendants in the cited case, we think there would now be no question about her right to recover the full amount of the value of the property not delivered.

Unless plaintiff has shown, however, that she did not voluntarily make the payments she did make, but made them through error or duress, we think she cannot recover back what she has paid, further than to have declared extinguished the unpaid balance on the' notes. Plaintiff contends that she made the payments through error; that she consulted an attorney, as a result of which she accepted delivery of the hotel property without the furniture in question. Later she made payments on the notes, she says, because she feared defendant would foreclose on the notes and sell the property. She testifies also that she was unable to employ counsel to test her rights in court, and yet she states she had the money to make the payments with and did make them. Her statement that she did not have the means to employ counsel is incompatible with the fact that she had money to pay on the notes. We do not think that plaintiff has shown a state of facts- sufficient to warrant the court in finding that she was coerced into making payments on the notes, instead of having paid them voluntarily. This view is fully sustained by authority. In New Orleans & N. E. R. Co. v. La. Construction & Imp. Co., 109 La. 25, 33 So. 51, 55, 94 Am. St. Rep. 395, the court, discussing this question, stated:

“In the case at bar there was every opportunity to litigate the question raised in a court of competent jurisdiction at the, very time it was first raised” (having reference to note sued on).

Threats of legal process is not duress, for the party may plead and make proof and show he is not liable. There is no principle of law better settled than that money voluntarily paid with knowledge of the facts cannot be recovered back. If in every instance in which a man is in doubt as to which is the safe course to pursue, hcan pay under protest and then sue to recover back, it is difficult to see where litigation is to end. The law therefore wisely holds that a voluntary payment cannot be recovered back. Brumagin v. Tillingast, 18 Cal. 265, 79 Am. Dec. 176; De la Cuesta v. Ins. Co., 136 Pa. 62, 658, 20 A. 505, 9 L. R. A. 631; New Orleans & N. E. R. Co. v. La. Const. & Imp. Co., 109 La. 25, 33 So. 51, 94 Am. St. Rep. 395; Fuselier v. St. Landry Parish, 107 La. 221, 31 So. 678.

“A mere declaration by one at the time he pays money that the payment is made ‘under protest’ does not show that the payment is not voluntary.” 3 Words and, Phrases, Second Series, “Payment and Protest,” page 1313.

For the reasons assigned, we think the judgment appealed from is correct, and same is affirmed.


text:
    No. 4181
    Second Circuit (Second, Division)
    SELBY v. WILLIAMS
    (March 16, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Boone & Boone, of Many, attorneys for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff purchased from defendant, on February 15, 1927, for the price of $2,800 cash, by warranty deed, an undivided one-fourth interest in and to the oil, gas, and other minerals in and under the following described tract of land in Sabine parish, viz:

“All that part of the Southwest Quarter of the North East Quarter, Section 33, Township Ten North, Range Twelve West, which lies south of the Las Amegas Grant line, containing thirty five acres” — subject to an oil and gas lease thereon in favor of another person.

He alleges that defendant only owned that part of said tract described as follows, viz.:

“All that portion of Southwest Quarter of Northeast Quarter of Section 33, Township 10 North, Range 12 West, which lies south of the Las Omegas Grant Line and east of the west banlc of Deep Branch.”

In other words, that defendant at date of sale did not own that part of the tract west of Deep Branch, and therefore did not, and could not lawfully, convey to plaintiff any interest in it; that this part of the land contains 12.4 acres.

Plaintiff alleges that he has been evicted from that portion of the tract described in his deed which said defendant did not own, but does not set forth any facts or circumstances constituting the eviction. He sues to recover the portion of the price paid therefor, viz., $992.

Defendant denies all of the allegations of plaintiff’s petition, except in so far as same conform to and are in accordance with the public records of Sabine parish; and avers that if plaintiff ever had a cause of action against defendant for diminution of the purchase price of the sale referred to, such action is barred by the prescription of one year, which is specially pleaded. Defendant also filed an exception of no cause or right Of action against plaintiff’s suit, which was referred to the merits, and overruled by the court.

The lower court sustained the plea of prescription of one year and rejected plaintiff’s suit at his cost, and he has appealed.

If this suit is one for the diminution of the price of sale on account of shortage in quantity or area, the action is barred by the prescription of one year provided in article 2498 of the Civil Code, because more than a year elapsed between date of sale and filing suit. ' If it is held to be an action to recover a part of the purchase price because of eviction from a definite parcel of the property described in the deed, or because of. an outstanding, adverse, paramount title in some third person to such definite parcel of the property, then the action falls under article 2500 et seq. of the Code,' relating to the obligations of the warrantor in case of eviction, and is not barred by said prescription.

We think plaintiff’s action clearly falls under the last-named articles of the Code. He is suing for the proportionate part of-the price of sale based upon the acreage of a definite, specific part of the property, which he claims to have been evicted from. It is true, as argued by defendant, that plaintiff alleges he is entitled to a diminution of the price of sale. It is also true that he alleges eviction from a certain part of the property sold him. Both of these allegations are not pertinent to either of the above-mentioned actions. An eviction cannot arise from a shortage in acreage, but the right ito sue for diminution of price does; while an action on warranty obligation arises from eviction from all or a part of the thing sold.

To ascertain the character of a plaintiff’s action when inartfully expressed, reference should be made to all the allegations of his petition and from a consideration of these the court will determine whether or not he is. bound by inappropriate averments. This action is one for restitution of part of the purchase price of sale and •the petition may easily be construed to have that purpose.

The comparatively recent case of Marinovich’s Estate v. Jones, reported in 141 La. 397, 75 So. 93, 95, discusses at some length the actions for diminution of purchase price and that for restitution of part of such price where eviction has taken place.

Defendant relies upon that case as sustaining his position herein. We do not think he can gain much comfort from this decision, because it supports the conclusions reached by us. The court therein said:

“If this is an action for diminution of the price on account of a deficiency in the area of the land bought by Mrs. Marinovich, and not an action in warranty or for reimbursement of a part of the purchase price on account of an eviction from a part of the land bought by her„ the action is prescribed.” (Italics ours.)

There are many other cases holding to same effect: in fact, there appears to be perfect uniformity of the jurisprudence on the question.

Under plaintiff’s allegations, it was necessary that he establish that he had been evicted from the land, the price of which he sues to recover, in order to make out his case. He has not done this. There is. no evidence in the record whatever which in the least proves that defendant did not own the land he sold to plaintiff, and there is equal lack of evidence showing eviction.

For the reasons herein assigned, the judgment appealed from is set aside, avoided, and reversed, and there is now judgment dismissing plaintiff’s suit as in case of non-suit. Costs of appeal to be paid #by defendant, all other costs, by plaintiff.


author: DREW, J.

text:
    No. 4235
    Second Circuit
    MURFF v. LOUISIANA HIGHWAY COMMISSION
    (April 5, 1932. Opinion and Decree.)
    (May 5, 1932. Rehearing Refused.)

      Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    Lewis L. Morgan and A. S. Cain, Jr., of New Orleans, and D. M. Ellison, of Baton Rouge, attorneys for defendant, appellee.
   DREW, J.

Petitioner instituted this suit ‘ against the Louisiana Highway Commission for the sum of $1,000, alleging that he was the owner of one hundred sixty-four acres of land situated in Bossier parish, La., located just north of the Shreveport-Minden highway known as United States No. 90, which highway is under the control and supervision of the Louisiana Highway Commission; that in the year 1930 he was cultivating one hundred ten acres of said land in cotton, corn, and alfalfa. He further alleged that there were several bayous crossing said highway a short distance east of his land, which carried away the excess water from Red Chute bayou in times of high water, and that the Louisiana Highway Commission remodeled said highway and hard-surfaced it; that prior thereto there were bridges and trestles over these bayous where they crossed the road, leaving same open, and thb bayous were sufficient to and did carry off all surplus water from Red Chute bayou during all seasons; that in rebuilding said highway preparatory to hard-surfacing the same, the Louisiana Highway Commission, through its employees acting under orders, instructions, and supervision of said highway commission, tore out said bridges and' trestles, filled in the bayous above referred to with dirt and dumps, thereby reducing the capacity of said bayous where they crossed the highway to af least one-third and filling in some of them entirely. He alleged that the bayous referred to were the natural outlets of the overflow waters passing out of Red Chute in high water time; that after the construction of said highway and the filling in of said bayous, thereby stopping the natural drains, a heavy rain caused Red Chute to overflow, and the water could not flow off through the heretofore natural drains which had been filled and stopped up by the highway commission, causing the water to overflow his lands, where it stood for more than two weeks, completely destroying all crops then growing on said lands. He set forth his loss, occasioned thereby and prayed for judgment accordingly.

Defendant excepted to the plaintiff’s petition on the following grounds:

(1) That petition discloses no right of action.

(2) That petition discloses no cause of action.

(3) That this action is instituted against the state of Louisiana in a case in which the state has not given its consent to he sued.

The lower court sustained the exceptions of no right and no cause of action and dismissed plaintiff’s suit, from .which judgment he prosecutes this appeal.

The third reason set forth in the exception that it is a suit against the state is answered in the negative in the opinion of the Supreme Court in the case of Saint v. Allen, 172 La. 350, 134 So. 246, 249, in the following language:

“If the Louisiana Highway Commission is a distinct legal entity from the state, then there would seem to be no reason, so far as relates to the Constitution, why the Attorney General and his assistants should be deemed to be the attorneys for the commission, and why other arrangements could not be made, under legislative authority, for the selection of attorneys by the commission.
“The commission, in our opinion, is a distinct legal entity from the state. Section 3 of Act No. 95 of 1921 (Ex. Sess.) makes it a body corporate, with power as such to sue and be sued. It is an agency of the state, and not the state itself, created for the purpose of executing certain duties, devolving primarily upon the state. In a general sense, in its relations to the state, it is not dissimilar to levee districts, which, are bodies corporate, created for the purpose of constructing and maintaining levees, which are duties, devolving primarily upon the state. It was held in State v. Standard Oil Co., 164 La. 384, 357, 113 So. 867, and in State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216, that a levee district, though the creature and an agency of the state, had, as long as it was permitted to exist, a separate existence from the state, and that the state could not sue on causes of action accruing to the district. Nor, in a general sense, is the commission dissimilar, in its relations to the state, to the board of commissioners of the port of New Orleans, concerning which it was held that the board, as a body corporate, had a separate existence from the state, and, though an agency thereof, did not enjoy the immunity from the prescription, liberandi causa, enjoyed by the sovereign., Board of Commissioners of Port of New Orleans v. Toyo Kisen Raisha, 163 La. 865, 113 So. 127. These cases are pertinent here for the purpose of showing that the Louisiana Highway Commission is a separate legal entity from the state.
“However, it may be said that the ruling, as to the separate existence of the commission, is not well taken here, because the act, .creating it, provides that all contracts for highway improvement shall be made in the name of the state, and that the state, acting through the commission, may acquire gravel beds, and the like, by purchase, lease, or donation, and that the state provides the commission with funds with which to discharge the purposes of its creation. Sections 16, 23, 34, Act No. 95 of 1921 (Ex. Sess.). These facts, however, are insufficient to make the commission and the state one and the same. They merely show that the commission is an agency of the state. It does, not even follow that, because contracts for highway improvements must be entered into in the name of the state, suits on such contracts should be brought by the state or against it, for the commission, as a body corporate, is given express power to sue and be sued, which shows that such suits (which might be reasonably expected to constitute the greater part- of the litigation in which the commission might become involved) should be instituted by the commission, and not by the state.”

Also, in the case of Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169, 170, the court said:

“ ‘The levee boards of the state are state agencies in the same sense that police juries are, and when a police jury takes or damages private property for public purposes the parish represented by such police jury should be held liable therefor as has been the rule with respect to the levee, boards, since such boards have been required to pay for property taken or damaged for public purposes.’ The same rule must be applied also to the Louisiana Highway Commission.”

It is clear from the two above-cited decisions that the Louisiana Highway Commission, in its relation to the state, is similar to the . police juries and levee boards of the state — a body corporate with the power to sue and be sued. It is an agency of the state and not the state itself.

Defendant contends that the exception of no right and no cause of action should be sustained for the reason that the injury complained of springs from an alleged tort committed by the highway commission’s agents while, engaged in the discharge of a governmental function, and that ' it is an elementary principle of law that a state agency is not and cannot be held responsible for tort damages caused by its agents. .Defendant relies to a great extent upon the decision of Kilberg v. Louisiana Highway Commission, 8 La. App. 441, wherein the Court of Appeal for the First Circuit held that, where a state agency is acting within the scope of its governmental functions, it represents the state and as such it may not be sued except with the permission of the state. The decision seems to be based upon this finding, which we think is clearly in conflict with the cases of Saint v. Allen, and Booth v. Louisiana Highway Commission, cited supra. The case further holds that the highway commission cannot be sued for damages ex delicto. In the case of De Moss v. Police Jury of Bossier Parish, 167 La. 83, 118 So. 700, 702, 68 A. L. R. 336, the court differentiated the cases in which police juries, as state agencies with only delegated powers, were - held not liable for the acts ot omission of their officers, from those cases in which a police jury or levee board or Louisiana Highway Commission, as a state agency, has taken or damaged private property for public purposes without just compensation. The rule as laid down in the De Moss case is that an agency of the state is no^ liable for damages caused by positive torts or acts of omission and neglect, such as failure to keep a bridge in proper repair (King v. Police Jury of St. Landry Parish, 12 La. Ann. 858; Bankins v. Police Jury of Calcasieu Parish, 116 La. 639, 40 So. 925); or failure to provide proper or adequate guard rails on a bridge (Gaudet v. Lafourche Parish, 146 La. 363, 83 So. 653); or where a juror falls in a pit and is injured while in charge of the sheriff (Sherman v. Parish of Vermilion, 51 La. Ann. 880, 25 So. 538); or damages caused by a mob (Fischer Land & Improvement Co. v. Bordelon, 52 La. Ann. 431, 27 So. 59). After reviewing the cases above cited, the court said:

“There was no duty imposed upon the police jury to avoid or to provide against the act which caused the damages complained of in those cases, and . there was no question, such as we have here, of the taking or damaging of a citizen’s property for public purposes without due process of law and without an adequate compensation.”

The contrary of the decision above reviewed is true, for the reason that section 2, article 1, of the Constitution of Louisiana for 1921, makes it the duty of all such state agencies as the police jury and the Louisiana Highway CommissTon to pay just and adequate compensation for private property taken or damaged for public purposes. In the De Moss case the court reviewed a number of cases illustrative of this point. In the case of Lalanne v. Savoy, 29 La. Ann. 516, the police jury was held liable for damages caused a neighboring inhabitant by building a work of public convenience that obstructed an unnavigable water course. In Houston v. Police Jury of St. Martin Parish, 3 La. Ann. 566, the police jury was held liable in damages for the illegal obstruction to the navigation of a river, and in Avery v. Police Jury of Iberville, 12 La. Ann. 557, the court said:

“Their attempt to reclaim the swamp at Point Manchac, must not be allowed to bring the water thence drained in a flood upon the plaintiff’s lands. They must provide against injurious consequences to the plaintiff from their acts or they will be liable in damages.”

In Green v. Board of Commissioners of Lake Borgne Basin Levee District, 163 La. 118, 111 So. 619, the court held the levee board liable for removing debris from the land and also for damages caused by negligent use of dynamite, by which some trunks and branches of trees were thrown upon the plaintiff’s residence. In the case of McGeehan v. Board of Levee Commissioners, 165 La. 241, 115 So. 473, the levee board was held liable for removing earth for levee purposes in a case of emergency, although the plaintiff’s land did not owe a servitude for levee purposes, but was adjacent to the owner who did owe the servitude.

The facts in the De Moss case are as follows: De Moss- was the lessee of a plantation adjacent to a road that it became necessary to widen. In widening the road it was necessary to tear down the fence inclosing the land on which the lessee had a crop. After the fence was torn down the cows went in and destroyed the crop. De Moss sued for the value of the crop destroyed and was awarded judgment in the district court. The Court of Appeal reversed the lower court, 9 La. App. 215, 120 So. 137, sustaining an exception of no cause and right of action, and on á writ of review the Supreme Court reversed the Court of Appeal and held' there was a right and cause of action. The court in that case, after quoting the language of the Constitution of 1921, article 1, see. 2, said:

“Here the plaintiff’s crop was damaged as the proximate and natural result of the widening of -the road, for if the width of the road had not been extended, there would have been no necessity of tearing down the fence, and if the fence had not been torn down the cattle would not have destroyed plaintiff’s crop.
“To adopt the theory of the Court of, Appeal, and deny plaintiff’s right to recover for the damage to his crop, would, in the language of Justice Manning, ‘convert the constitutional protection into- a false pretense and practically make it only a promise to the ear which it breaks to the hope.’ ”

In the case of Booth v. Louisiana Highway Commission, cited supra, plaintiff sued the highway commission for damage to his property by reason of the road contractor taking possession of an additional ■ten feet of plaintiff’s property without authority and removing therefrom 1,500 cubic feet of dirt. The Louisiana Highway Commission took the position that, as an agency of the state, it was- not responsible for damages arising from torts committed by, its servants while acting within the scope of their authority, or otherwise. In disposing of the case, the Supreme Court cited and reaffirmed the De Moss v. Police Jury of Bossier Parish case and quoted extensively from it, allowing plaintiff damage.

It seems clear from the above decisions that when the Louisiana Highway Commission, functioning as a state agency, constructs a road for public purposes and public convenience, and by doing so causes damage to private property, that it must pay just and adequate compensation, and that the owner of the private property damaged has a right and cause of action against the Louisiana Highway Commis: sion.

Defendant urges that there is no special act authorizing the highway commission to be sued for damage -such as claimed by plaintiff, and Act No. 95 of the Extra Session for 1921 only authorizes suits relating to the carrying out and enforcing the provisions of the laws entrusted to it, such as those growing out of contracts it is authorized to make or for rights of way or damages, to land taken for highway purposes. In other words, that, if it becomes necessary to take land for road purposes and there are improvements; growing crops, etc., on that land, they will have to be paid for, otherwise not, although they are damaged. This contention was made in the De Moss case and answered by the court in the following language:

“When a police jury therefore undertakes to lay out a road or to widen an established road without pursuing the forms ,of law, whether with or without' obtaining the consent of the owner, it renders the parish liable to any other person whose property might be damaged as a result of such public improvement.
“It would indeed be a very narrow, and we think unjustifiable, interpretation of the statute to hold that it only provided for such damages as the owner whose, property is actually taken might sustain^ and would not cover damages suffered by. other and adjacent proprietors as a result of the construction or repair of the road.”

Section 2, article 1, of the Constitution for 1921 does, not restrict the damage to the owner of the property actually taken for road purposes. In the case of Scott v. Ratcliff, 167 La. 237, 119 So. 33, 35, and reaffirmed jn Booth v. Louisiana Highway Commission, supra, the court said:

“The Constitution is the paramount law, to which all other laws must yield, and it is equally obligatory on the individual citizen and on every department of the government. When its language is clear and unmistakably expresses the intent of its framers, there is no occasion for interpretation.’’

The language of this article of the Constitution . is clearly expressed and free from ambiguity, and the allegations of plaintiff’s petition must be taken as true for the purpose of passing on the exception of no cause and no right of action. He has alleged that the Louisiana Highway Commission has built a paved road for public purposes and public conyemencs, and in doing so that it stopped up and obstructed the natural drains of that locality, resulting in the water overflowing his property and thereby damaging his private property. His petition sets, forth a cause of action and a right of action. It therefore follows that the judgment of the lower court is erroneous and will have to be reversed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that the exceptions filed herein are overruled, and the case is remanded to the lower court to be tried upon its merits.


text:
    No. 4239
    Second Circuit
    BROWN v. SMELLEY
    (May 20, 1932. Opinion and Decree.)
    P. E. Brown and C. O. Brown, of Arcadia, attorneys for plaintiff, appellant.
    Goff & Goff, of Arcadia, attorneys for defendant, appellee.
   DREW, J.

Plaintiff alleged he was the owner of the N. % of N. E. % of S. W. section 12, township 15 north,' range 5 west, Bienville parish, La.; that he acquired same at sheriff’s sale on March 3, 1903; that he has been in actual possession of said property ever since the date of said sheriff’s sale; that defendant has trespassed upon said land and unlawfully and tortiously cut and removed timber therefrom, of a value of $150. He prays for judgment in the sum of $150 against the defendant, with legal interest from January 1, 1931, until paid.

Defendant, in answer, admits cutting timber from the land, but denies that he is indebted to plaintiff in any sum for cutting and removing the timber, alleging that he is the owner of the land above described, setting up a chain of title from the United States down to himself, and alleged that he had been in possession of said land since 1907. He prays that the demands of the plaintiff be rejected.

The lower court rendered judgment rejecting the demands of plaintiff, from which judgment he has prosecuted this appeal. Appellee has filed in this court a motion to dismiss the appeal, for the reason that the amount involved is less than the amount necessary to give this court jurisdiction. Although plaintiff has prayed for judgment in the sum of $150 it is admitted, and the only evidence in the record shows the admission to be correct, that the amount in contest at the time the judgment appealed from was rendered in the lower court was less than $100. This court is therefore without jurisdiction, unless there are other issues involved in the case that would give us jurisdiction. Olivia v. Mitchell, 5 La. App. 588; Dowies v. Currie, 8 La. App. 756.

Plaintiff prayed for judgment against the defendant in the sum of $150, with 5 per cent interest. Defendant prayed that the demands of plaintiff be rejected. Therefore the only judgment that could have been rendered by the lower court was a moneyed judgment for an amount less than $100, the amount in contest at -the time of the decision in the lower court, or a judgment rejecting the demands of plaintiff.

Plaintiff contends that the question of title to the property is involved. We think not. This is not a petitory action, and the court would not be justified in finally passing on title under the law, or the prayer of either the petition or answer. Neither plaintiff nor defendant has prayed to be declared the owner of the property. Both allege ' possession, and possession, and not .title, if proved, is sufficient to justify a judgment for plaintiff or defendant. Undisturbed, actual physical possession for one year prior to the cutting and removing of the timber would have been sufficient for judgment for the value of the timber. Article 53 of Code of Practice. One who has had quiet possession of timber land as owner for a year or more, whether in good faith or not, is vested with a right of possession, which may serve as a basis for a possessory action and to recover timber removed, and in such action the question of title cannot be brought in, the defendant, for the purpose of the suit, having no title. Grant Timber & Mfg. Co. v. Gray, 131 La. 865, 60 So. 374; Smith v. Grant Timber & Mfg. Co., 130 La. 471, 58 So. 153; Producers’ Oil Co. v. Hanszen, 132 La. 691, 61 So. 754.

In an action of trespass, there can be no examination of title. Possession, if legal and peaceable, is sufficient to maintain the action. Mott v. Hopper, 116 La. 629, 40 So. 921; Collins v. Dalton Clark Stave Co., 128 La. 250, 54 So. 788.

The title to real estate not being involved, and the amount in controversy at the time of decision of the lower court being less than $100, this court is without jurisdiction ratione materias, and the motion to dismiss will have to be sustained.

It is therefore ordered, adjudged, and decreed -that the appeal in this case be dismissed, at appellant’s cost.