author: Breaux, J.

text:
    No. 13,380.
    Mary Lee and Vinnie Ziegler vs. Leon M. Carter and S. Levy, Jr., Syndics, et al.
    Syllabus.
    1. The heirs who sue their father for an amount received by nim from the succession of their late mother, and converted to his own use, are not bound to look first to the settlement of the succession of their grandfather, in another parish, the fact being that this succession was opened about twenty years ago, and had been, in effect, settled when plaintiffs brougnt suit to recover from their said debtor.
    2. While it is true that a court can not travel outside of the four corners of a deed to add new words by parol, relevant evidence explaining or placing the court in the situation of the parties themselves, at the confection of the deed, will be received if it does not vary or contradict its essential declarations. The evidence regarding “cash” was properly. received, to show the dispo'sition made of the amount, and to show that it was retained by the father, who, thereby, became indebted, in the first place, to his wife, and afterwards to her children.
    3. The testimony of witnesses was corroborated and its verity confirmed by the proceedings in matter of the settlement of the succession, and the circumstances confirming the right claimed. The evidence admitted was neither insufficient, nor was it illegally admitted.
    On Reheaking.
    Wé have heretofore passed upon every issue decided in the District Court.
    The decree of our former decision is modified so as to leave the question of the mortgage, and the vendor’s privilege claimed (on part of the property), open to be settled contradictorily between the heirs of Levy, Jr., and the heirs of Zeigler, in a suit over the proceeds of the said property, which is to be sold, or in such other action, under the law, as the parties may bi’ing.
    APPEAL from the Eirst Judicial District Court, Parish of Caddo— Shepherd, J., ad hoc.

      Thomas Fletcher Bell for Plaintiffs, Appellees.

      Taliaferro Alexander, Eolbert & Barret, Albert E. Leonard and D. T. Land for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by plaintiffs, daughters of S. J. Zeigler, to recover judgment against their father for the seperate funds which they allege were inherited by them from the succession of their mother, Mrs. Sallie V. Zeigler, and which their father received and used for the benefit of the conuiiunity which existed between their father and their mother, up to the date of her death.

It appears that S. J. Zeigler made a cession of all his property to his creditors and that the defendants, Carter and Levy, Jr., were appointed and qualified as syndics and are, in that capacity, administering- the affairs of the insolvent, Zeigler. The following is an itemized statement of plaintiffs’ claim:

By judgment of Vance vs. Vance used in purchase in part payment Buck Iiall plantation, 1884 ..............$16,970 25

1877. Amount received from New York Life Ins. Co...... ' 604 33

1877. Amount received from Knickerbocker Ins. Co...... 1,417 88

1883-4. Amount received from estate Haynes........... 49S 00

In.the case of Zeigler vs. ITis Creditors, 49th Ann., 144, the syndics appealed from the judgment rendered in favor of plaintiffs‘here for an amount of-thirty-two thousand dollars. This amount included the-sum set forth in the above statement and the judgment was annulled and the ease was remanded to enable plaintiffs to introduce proof in support of their claim. They, prior to trial on the merits, reduced the amount of their claim and the case was heard on the merits before the court a qua. At the outset of the trial, defendants interposed a general objection to the admissibility of nearly all of the testimony offered. These objections, in substance, were that the succession of S. W. Vance, father of Mrs. Sallie J. Zeigler, was not settled, though properly opened before the District Court for the parish of Bossier and that the District Court for the parish of Caddo is without jurisdiction to administer and settle the succession and determine what rights plaintiffs have in the succession of their grandfather, S. W. Vance. .In the second place, defendants objected to the evidence as being insufficient to sustain plaintiffs’ claim; and, lastly that the purchase price of property bought by S. J. Zeigler at a probate sale of succession of S. W. Vance by the sheriff of Bossier parish, for which plaintiffs seek to hold him, Zeigler, responsible, was not paid in cash although the deed in question recites that it was; that plaintiffs are bound by the declaration because it is an authentic declaration which cannot be altered in any manner, in the absence of all the required allegations of error or fraud; further that they are bound also because the deed was offered in evidence by plaintiffs without reservation of any sort.

W. C. Pérrin, a witness, testified that years ago he was the bookkeeper of McOutchen & Co., a commercial firm, with whom it appears that Zeig'ler kept account of his cash receipts; that at the time payment was made of the two items, $604.33 and $1417.85, he made proper entry on the books of the firm. Testimony by other witnesses and entries in the books of a banking house of Shreveport were offered as corroborating testimony. Testimony to sustain the claim arising from payment made by the Knickerbocker Insurance Company was also admitted. It consisted of the testimony of witnesses and of entries in book-keepers’ books.

The facts regarding the judgment in, Yance vs. Yance, in which the late Mrs. Zeigler was recognized as a creditor of her husband, for a large amount, are that the statement shows it was made part of the purchase price of Buck Hall by Zeigler, who became the owner at the sale in which his wife had interest, and the debtor to his wife, for the amount of her judgment. 'With reference to the last item of the statement, i. e., the one made in 1883, amount received from the estate of Haynes, $498,00, the evidence shows that S. J. Zeigler was the executor of the estate; that his wife, at the time, was a creditor of the estate; and he, Zeigler, testified that he retained the money due to his wife and that he used it in his own business. The witness testified, “I thought it was hers and I used it as her money. I thought that I had a right to keep it without any receipt.” This testimony was corroborated by the final account of the executor,. duly homologated, and by other facts.

The judge of the District Court handed down a written opinion in support of the judgment, holding that the sole.question for determination was the verity of plaintiffs’ claim and that the item of six hundred and eight and 69-100 dollars was received by Mrs. Sallie E. Zeigler from the New York Life Insurance Company by her attorney in fact, S. B. McCutchen, and that this was the share due Mrs. Ziegler as the daughter of S. W. Yance; that the certified copy of the receipt is found in the record annexed to the original policy of insurance. McCutchen testified that S. J. Zeigler was credited with six hundred and eight 89-100 dollars on the books of his commercial firm in which Zeigler’s account was kept at the time. This testimony is supported by that of W. O. Perrin who was bookkeeper for S. B. McCutchen on October 16th, 1877, at the date of the entry. Mr. J. A. Snider testified regarding the claim for one thousand four hundred ' and seventeen 85-100 dollars that he settled upon an amount for compromise with one Cronin, adjuster for the Knickerbocker Insurance Company, which amount was received from that company by Mr. Zeigler for Mrs. Zeigler on the life insurance of Vance. Mr. McCutchen testified, that “these statements are correct, and that the entries in the books were made in the ordinary course of business, at a time when Zeigler had means and was engaged in business. There is other testimony sustaining the claim, but we do not think it necessary to make a summary of it. The opinion of the district judge was carefully prepared and sustains the judgment in favor of plaintiffs for the amount stated in the opinion. From this judgment, the defendants, syndics, and several creditors of the insolvent, Zeigler, appealed.

Defendant’s objection to the jurisdiction of the court is the first attracting our attention on taking up the case for decision. This objection is based on the ground that the succession of the plaintiffs’ grandfather, from whence they inherit as thefiegal representatives of their mother’s succession, is not yet closed in another parish to which, defendants contend, we should refer the plaintiffs for a settlement of their claim. Our review of the issues has resulted in convincing us that there is'no necessity, under the law, of dismissing plaintiffs’ demand and thereby delaying a settlement between plaintiffs and defendants which would not be of any advantage or benefit to one or the other. Our reasons for declining to sustain defendants’ position on this point are as we have noted. The succession of S. W. Vance was opened in the parish of Bossier more than twenty years ago and all the property comprising the assets was sold, the creditors appearing and all concerned being parties. It appears that in due time a final account was prepared; by' the attorney of the succession and for reasons stated by him it was never homologated. Many of the parties have since died, including the executrix of the succession, and we have reason to conclude that all the debts have been paid and the heirs, except plaintiffs,- have been settled with. At any rate, no one complains. There is no contest in the parish of Bossier. . The succession was considered as one finally settled and- the amounts received by plaintiffs’ father, Zeigler, have become a personal indebtedness for which he can be made to account in a separate action in the parish of his domicil. The question of jurisdiction was not raised by plea, but it comes up to us by way of objection to the admissibility of testimony, without proof that any one is interested in reviving the settlement of a- succession long- since abandoned, for the reason that all concerned have ceased to have an interest therein. There is no question here of the settlement of a succession. Plaintiffs only seek to recover from their father an amount he is charged with having collected from a. succession for them, and which he failed to pay to them.

We take it that the next objection was directed more particularly against the sufficiency of evidence on which to base a judgment, -and for that reason it will be considered in a moment in passing upon the items constituting the total of plaintiffs’ claim.

Defendant also objected to the admissibility of evidence offered to prove that the purchase price of property bought by S. J. Zeigler at probate sale of succession of S. W. Vance was not paid in cash to the sheriff as recited in the deed which was offered in evidence by plaintiffs without reservation or restriction. Defendants, in support of their objection, cite C. P. 697 and 698, setting forth that a sheriff’s deed is an authentic act and is full proof of what it contains. Sheriffs, in order to avoid long recitals in their deeds and, frequently, calculations of amounts coming to each of the heirs or other interested parties, are prone to set forth, that “in consideration of said purchasers having complied with the terms of sale by paying the amounts of their separate bids in cash” they have adjudicated the property. While such a practice is not to be commended, yet when there is no testimony to show that he received the cash, but it does appear, on the contrary, that no cash was received by him owing to an agreement, parol proof of the agreement is admissible. The rule of exclusion of parol testimony does not extend to mere receipts. Parol testimony is admissible to explain and even, to contradict them. The fact that a receipt was copied into an authentic act would not make it impossible to show how the cash to which it refers was .received or that the officer was made to insert “cash received” by the interested parties who chose to treat the'” obligations among themselves as .cash and thus to settle upon this basis, as we understand was done'in the case before us for decision. True, ordinarily, it is required that, in order that an act may be corrected and made to conform to the facts, proper allegations must be made to that effect.

Defendants’ objection is that plaintiffs did not lay the foundation of error or fraud, and secondly, that they did not' reserve their right to contradict the deed when it was offered in evidence. It would not be possible to meet defendants’ objection successfully if plaintiffs were attempting to contradict or vary the deed in question. The object of the testimony was to prove what had become of the amount referred to as cash. There was no intention of changing the deed in any way in s'o far as it established all the requirements of a sale. The deed was considered in every respect as complete and nothing was done to take away from it any of the force" it has as a complete act of sale. From that point of view we do not find that the ruling admitting the evidence was erroneous. This completes o*ur review of the different points urged by the defendants as to the admissibility of the evidence.

. The first two items, six hundred and four 33-100 dollars 'and one thousand four hundred and seventeen 85-100 dollars, are due as shown by contemporaneous entries made in good faith in books regularly kept for S. J. Zeigler by a commercial firm of Shreveport, and as shown by the bookkeeper himself, who was a witness, and by one of the members of the firm. The entries in a banker’s books with whom this firm deposited its cash also corroborates the verity of the claim. The debtor himself testified to the correctness of these entries. The many years that have elapsed since these amounts were received by the firm and placed to the credit of the debtor rendered it impossible for the witnesses to recall all the particulars. But they traced these amounts to those by whom they had been paid, that is to the debtors themselves, and they established with absolute certainty that the amounts, were due to the mother of plantiffs and afterwards they proved beyond all question of doubt that regular entries in the books by a competent book-keeper and proper charges show that these amounts were delivered to S. J. Zeigler, for whom they were secured. It is true that the latter has made mistakes in his testimony to which our attention is called. We know very Well that when a. witness has fallen into an error of statements, though he may have been anxious to avoid them, yet he should be supported by other testimony, at least on material points.' He is supported by a. number of circumstances and by at least two witnesses whose testimony convinces us of the entire truthfulness of the statement as relates to those two claims.

The third and largest item of those making up plaintiffs’ claim is shown to be correct by the copies of documents taken from the record of the succession of S. W. Vance. The adjudication of that to which we have already referred proves the amount of property sold, and which Zeigler bought and for which he is responsible to plaintiffs. The account of executorship, never homologated but duly prepared, and all the circumstances point to plaintiffs’ tutor, Zeigler, as having received the amount claimed. Mr. J. A. Snider, one of the oldest and most highly respected attorneys in this State, has given this item of plaintiffs’ claim the support of his positive testimony. He was in' charge of the settlement of the succession as attorney and was well acquainted with the parties. He says that plaintiffs’ father acted as agent for Mrs. Vance, tho executrix, and a large portion of the cash of the succession was received by him for Mrs. Vanee whose agent he was. We believe that the circumstances and the testimony confirm the testimony of S. J. Zeigler, who states he received the amount. It was shown that plaintiffs are entitled to 12 19-100 per cent, of the estate, which was large.

The other heirs have been paid a larger amount than is claimed by the plaintiffs.

The testimony heard in proof of the last item of the account, four hundred and ninety-eight dollars, is even more clear and direct than that heretofore reviewed. The final account of the executor of the succession, Mr. Zeigler himself, who had all the funds of the succession of Haynes in his possession, shows that this amount was due by him to his late wife. It was not paid but was retained by him for his own use.

For these reasons, we think that the amount claimed is due. It is therefore adjudged, ordered and decreed that the judgment -appealed from be affirmed.

Blanchard, J., recused.

Rehearing refused

On Application for Rehearing.

The syndics and heirs of S. Levy, Jr., the latter claiming to be the mortgage creditors of S. J. Zeigler, press with great earnestness an application for rehearing, the principal point of which is that the hpirs of S. Levy, Jr., have a prior mortgage on the property known as Buck Hall.

They aver that S. J. Zeigler acquired this property at the succession sale of Vance, in 1891; that he afterwards sold the south half of this, (the Buck Hall place) to S. W. .Vance; and that at the same time, with the authority of a family meeting, he also sold to S. W. Vance the interest, in this property of the minor heirs of Mrs. Sallie E. Zeigler, who are plaintiffs here; that shortly afterwards S. "W. Vance mortgaged this property to N. E. Thompson; that he also executed a second mortgage, subsequent in date, to S. Levy, Jr., to secure a note for nine thousand dollars. S. Levy foreclosed and bought in the property at sheriff’s sale, subject to Thompson’s mortgage, and afterwards S. Levy. Jr., sold the property to Zeigler for nine thousand dollars, for which Zeigler executed his note, secured by mortgage and vendor’s privilege on the property, which notes are held by the Levy heirs.

Buck Hall plantation was originally owned by S. W. Vance, father of Sallie Vance, late wife of Zeigler.

In this suit, plaintiffs claim that their father, S. J. Zeigler, was indebted to his wife, Sallie Vance, in the sum of nineteen thousand, four hundred and ninety dollars for separate funds of their mother used by him for the benefit of the community. They ask for judgment for that sum with the recognition of a prior mortgage on all property belonging to the community at the death of their mother.

The court has passed upon the claims aggregating the sum just stated. As relates to that amount, we have found no error. We think that the evidence in its support was properly admitted and that it sustains the claim.

This court will not undertake, at this time and on the issues before it, to pass upon the priority of the mortgage claimed by the heirs of Levy, Jr. The property will have to be sold and the proceeds applied in accordance with the rights of the interested parties. It will be time enough to settle the interests of each of the parties interested in proper proceedings hereafter, either in an opposition or in'any other suit, just as the interested parties may choose.

It is therefore ordered, adjudged and decreed that our former judgment affirming the judgment of the District Court remain undisturbed, except as hereinafter set forth.. As to the rank of the mortgage and the .vendor’s privilege claimed by the heirs of Levy, Jr., and the mortgage of the Zeigler heirs, the latter is left open to be determined in a contest between the said interested parties over the proceeds of the said property, which is to be sold, or in such other action under the law as the parties may institute. Appellee to pay costs of appeal. With this modification the rehearing is refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 13,429.
    State of Louisiana vs. W. D. Eddens.
    Syllabus.
    An indictment which fails to aver that a person charged with perjury had been sworn as a witness in some judicial proceeding in a court possessing jurisdiction of the matter then pending, and testified falsely, is illegal and can pot sustain a conviction.
    APPEAL from the Second Judicial District, Parish of Bienville.— Watkins, J.

      Milton J. Cunningham, Attorney General, and A. J. Murff, District Attorney, (Charles M. Cunningham, of' Counsel), for Plaintiff, Appellee.

      W. TJ. Richardson, J. C. Theus and Borman & Reynolds, for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant is prosecuted and was convicted by a jury, of the crime of perjury, and sentenced to imprisonment at hard labor in the State penitentiary for two and one-half years, and from the sentence and judgment, he .prosecutes this appeal.

During the progress of the trial, several bills of exception were retained by the defendant, but, in this court, only two of them are relied upon by his counsel; (1) that relative to the refusal of the trial judge to grant him a new trial; (2) and the refusal of the trial judge to sustain his motion in arrest of judgment.

After the trial and verdict, defendant’s counsel filed a motion in arrest of judgment, wherein are set forth the following grounds, to-wit: „

“1st. That the bill of indictment on which the defendant was tried, does not charge any crime or offense, recognized or denounced by the laws of the State of Louisiana.
“2nd. Said indictment does not aver the administration of an oath, nor state by whom it was administered, nor that the evidence was competent and admissible.
“3rd. Said indictment does not charge that the oath alleged as the basis of perjury, was administered by any competent officer, or by any officer at all, or that said defendant was sworn by any officer, or by any one.
“4th. That said indictment dees not even state the substance of the offense of perjury as required under the common law precedent, with the modifications of the laws of Louisiana.
“5tih. The record in this ease does not disclose a legal charge of crime or offense and legal procedure and conviction; and. that, therefore, the judgment should be arrested and the defendant discharged.”

The charge in the indictment is as follows:

“That W. D. Eddens * * * did then and there wilfully, knowingly, feloniously, corruptly, unlawfully and maliciously commit perjury in a certain suit entitled W. D. Eddens vs. P. J. Key, No. 1,810, pending in the Second District Court of Louisiana, Parish of Bienville, a court of competent jurisdiction, having authority to try the cause, and administer oaths to the witnesses, by wilfully, knowingly, feloniously, corruptly, 'unlawfully, maliciously, 'and falsely swearing ‘that he (Eddens) was not present at the gin-house when P. J. Key brought the first load of cotton to his gin, in October, 1898, and that he did not tell Key to weigh his own cotton and unload the same,’ or words to that effect, when in fact, he was present when the cotton was hauled there, and did tell P. J. Key to weigh and unload the same, well knowing at the time that he was swearing falsely as to said facts, which were material to the issue then being tried, etc.”

The point relied upon by defendant’s counsel is, that the indictment entirely omits to charge that the defendant was sworn as a witness on the trial of the suit of Eddens vs. Key; and that the averment, that the court was one of competent jurisdiction, having authority to try the case and “to administer oaths to the witnesses,” was insufficient.

Reviewing the foregoing extract from the indictment, we find no such averment therein. The section of the Revised Statutes under which the bill is found declares, that, “whoever shall wilfully and corruptly commit perjury * * * on his oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of this State, * * * shall be imprisoned,” etc.

Section 857.

The following' section provides that “in every presentment or indictment against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court, or before whom the oath or affirmation was taken (averring such court or person to have competent authority to .administer the same), together with a proper, averment to falsify the matter wherein the perjury is assigned,” etc.

Section 858.

The very gravaman of these provisions is, that the person charged with having committed perjury should be alleged to have» taken an oath, and that the oath taken was false; and that said oath was administered in some judicial proceeding in a court which hlad jurisdiction of the cause then pending.

The averment' that the cause was pending before the court which possessed jurisdiction and had “authority to try the case and administer oaths to the witnesses,” will not suffice, and does not respond to the requirements of the statute.

The essential requisite of the law has not been complied with. To have committed perjury, the defendant must have been sworn as a witness, and in swearing as a witness, have made a false statement on some matter material to the issue.

In State vs. Harlis, 33rd Ann., 1172, the same point was made and' sustained by the court. In that ease, the accused was prosecuted for perjury, tried and convicted. In a motion in arrest of judgment, the defendant complained that the information was fatally defective in not having set forth the requirements of Revised Statutes, 858. The opinion of the court cites a'nd reviews severkl pertinent decisions and says:

“In the case before the court, the requirements of the statute touching essential averments should have been, and were not observed. The information does not state before what court the crime charged was committed, or by whom the oath Was administered. Tt was necessary to have made these averments, and also that the officer who received the oath had competent authority to administer it.” (Our italics).

' The only case cited contra by the Attorney General, is State vs. Dreifus, 38th Ann., 877. But in that case, the indictment charged “that the perjury, for the subornation of which the defendant was ihdicted, was perjury alleged to have been committed by one Susan McMahon,.on the trial of the case of the State vs. Thos. J. Ford, et als., in Section “B” of the Criminal District Court for the Parish of Orleans, after she had been sworn as a witness by Richard D. Scriven, minute clerk,” etc.

The contention in that case was, that “the minute clerk had no authority whatever to administer the oath as a witness to the said Susan McMahon on said trial.”

The indictment sets out with precision and. accuracy, that the perjury was committed by Susan McMahon on the trial of said cause, and that the oath had been administered to her as a witness by the minute clerk of said court.

In disposing of that question, the court said:

“The oath lawfully taken is essential to the indictment and consequent conviction for perjury,” etc.

Referring to Sections 857 and 858 of the Revised Statutes, the court said, further:

“If in either case the oath taken is false, wilful and corrupt, the crime of perjury is committed.”

In support of that proposition, many authorities were cited, the purport of which is a clear demonstration that an averment to the effect that the defendant was sworn as a witness, is essential to its validity.

It is clear that in the absence of any averment in the indictment that the defendant was sworn as a witness on the trial of Eddens vs. Key, no proof was admissible of the false swearing, which is an essential ingredient of perjury.

•The trial judge having overruled defendant’s motion in arrest of judgment, his counsel reserved a bill of exceptions to his ruling, and thereto, the judge assigned as his reason for so ruling “that the bill of indictment contained all the averments required by law.”

In so ruling, we are of the opinion that the judge was in error. We are, therefore, of the opinion, that the defendant’s motion in arrest of judgment was well grounded, and should have been sustained. State vs. Theriot, 50 Ann., 1187.

Entertaining this view, it is unnecessary for us to pass upon any other bill of exception contained in the record.

It is, therefore, ordered and decreed, that the sentence and judgment of the court, and the verdict of the jury upon which same is based, be annulled and set aside; and it is ordered and decreed that the defendant be discharged.


text:
    No. 13,343.
    Landers & Donnelly vs. Garland Canal Company; James E. Barry, Receiver.
    Syllabus.
    A canal company having contracted to furnish rice farmers a sufficient supply of water to irrigate their lands during the planting season, can not be held liable for damages which resulted from an insufficient supply, if the same is attributable to the inadequacy of the fall of rain from which source its canal was to be supplied.
    In such case the rice farmers are not responsible to the canal company for rent, inasmuch as the shortage of water caused them nearly a total loss of their crop; and the intervention of the act of God which released the latter from liability should not be so construed as to inflict punishment on the former.
    APPEAL from the Eleventh Judicial District, Parish of Acadia.— Dupre, J.

      Hampden Story and Kenneth Baillio for Plaintiffs, Appellant.

      Thomas H. Lewis for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff sued the defendant for six thousand eight hundred and sixty-one dollars, alleging that they, together with certain parties named, cultivated and prepared for rice culture, by ploughing and planting and sowing rice thereon during the year 1896, the following proportions respectively of the land contained in Section 16, township 12, south range 1, west, in Vermillion Parish; plaintiffs’ two hundred acres being in the eastern portion of the section; J. N. Eoutz, one hundred and fifty acres, being in. the upper portion of the east half of said section and containing fifty acres and one hundred in the centre of the west half of the section; T. L. Harrald, one hundred and fifty acres, being in the west half of said section south of the hundred acre lot of Eoutz; Horace Taylor, fifty acres, being in the upper portion of the west half of said section and north of Eoutz, and twenty-five -acres in the southern portion of the west half and south of Harrald’s.

That Eoutz had leased said section of the Board of -School Directors of Vermillion Parish, for the years 1895, 1896, and the other parties named, sub-leased the other stated portions from Eoutz, for the purpose of making rice crops during the year 1896.

That petitioners, after leasing the -said two hundred acres made all necessary levees and other works thereon; ploughed the lana m a proper manner, planted the same in good seed rice, which came up in due time, and placed said land and crop in condition to have made a large crop thereon, but for the w-aart of- water to irrigate the same.

That in the month of May, realizing the importance of securing an adequate supply of water to irrigate said rice, petitioners made a contract with defendants to furnish from their cand and planting plant, then owned and operated by it, a sufficiency of water to make said rice grow to maturity, the details of which contract would be in the written act evidencing the same. That though petitioners complied with all the stipulations of said contract, and more especially did everything necessary to receive the water which said company had agreed to furnish, by making a-11 Works necessary to receive and convey the said water to their crop of rice, and to hold same thereon, defendant failed to comply with said agreement, and only furnished a small supply of water on one occasion which Waá sufficient to flood and irrigate only a small part of their said crop, and that very imperfectly.

That the year 189'6 was an extremely dry year and the rain fall meagre during the months of May, June, July, August and September, so that no rice crops were or could be .produced without irrigating by artificial means as well known to the defendant company, and its officers and employees; that during said dry season as soon as water was needed up to the 15th of August, 1896, plaintiffs made repeated but unavailing demand, both written and verbal, on the manager and agents of said company for the necessary' supply of water to irrigate their said crops which, ■ during all of said time, was suffering for water, to the knowledge of the agents of said company; that besides, after several demands as aforesaid, petitioners made a formal written demand which was served upon the agents of said company and several verbal demands in the presence of witnesses on said agents to carry out their obligations stipulated in the contract, and in said demands said company, through its agents, was duly notified that petitioners’ crops would be entirely destroyed; lost and ruined by default on its part and petitioners caused large losses, all of which was, besides, however, well known to said company and its agents.

That the failure of the company to comply with its contract caused your petitioners losses in the sum of six thousand eight hundred and sixty-one dollars and fifty-two cents, as was detailed in the bill of particulars annexed to their petition; that said losses were and could be forseen on account of the default, failure and neglect of the company to carry out the terms of said contract, and said company is, accordingly, liable to plaintiffs for said amount; that the company was guilty of an active violation of said contract, under the circumstances stated, and the putting in default was unnecessary legally.

That defendant was further indebted to plaintiffs in the sum of twenty-four dollars for dump scrapers, sold and delivered to defendant during the month of February, 1895. The contract referred to was as follows:

Contract.

State of Louisiana, :

Parish of Vermillion. :

May 20th, 1896. This contract and agreement, made and entered into by and between the Garland Canal Company, Limited, as parties of the first part, J. N. Foutz, Landers & Donnelly, T. L. Harrald, Horace Taylor, as party of the second part, all residents of Vermillion Parish, State of Louisiana, witnesseth: That party of the first part, being proprietors and owners of the said Garland Canal, hereby agree to furnish to parties of the second a sufficient supply of water, including rainfall, to flood or irrigate and mature said crop óf rice, containing in all about 400 acres of land planted in ríce located in section 16, T. 12, S. R. 1, W., for the year 1896, where the water will flow from said canal, without additional expense to parties of the first part.

Party of the second part agrees to keep in good condition all levees, dams, etc., on land described and to see that there is no unnecessary waste of water, either of leakage of levees or the lack of sufficient cross-levees to protect the same, and to make or build all necessary levees, dams, flumes, etc., to convoy water, also to build south half of canal passing through section 15 and on land above described. Party of the second part agrees to pay the party of the first part a yearly rent of two barrels (162 pounds each) per acre and hereby grant the party of the first part a lien and privilege on the crop of rice raised on said land to guarantee payment of rent of said land irrigated to be paid and settled when threshed. It is also well understood and agreed by and between parties of the first part and second part that all levees are to be located at any point of the lands to be irrigated, and the party of the first part has a right to withhold water on any land mentioned where in his opinion there is not a sufficient stand to warrant an average crop or levees are not sufficient to flood or hold water on the land without leakage or waste, -the party of the second part is to give the party of the first part at least forty-eight hours’ notice of the time he may require water; it is also agreed and understood that the party of the first part are not to be held responsible for any unforseen causes or accidents or delays not caused by their own account or the lack of water from the main bayou from which the general supply of water is obtained, and parties of the first part alone - have control of said main canal; parties of the second part have no right to cut or open or interfere with said canal without the consent of parties of the first part, and to this contract parties of the first and second part bind their heirs and assigns; it is further understood that the parties of the second part agree to haul said water rent or two barrels per acre the same to be delivered immediately after the said rice is threshed; and it is also agreed to haul same to Gueydan Station and put in cars or warehouse at the option of the party'of the first part; it is also further agreed by parties of the first part, that parties of the second part shall have water by the 15th of June, 1896, also party of the first part further agrees to exempt parties of the second part from any water rent in ease of any accident or of the bayou being insufficient to supply water on lands mentioned; but in case party of the first part have only enough water to irrigate said land once, and not enough to mature said rice, the parties of the second part agree to deliver one barrel, instead of two.

Signed in duplicate. C. J. Freeland, B. R. Garland, manager; J. Foutz, Landers & Donnelly, T. L. Harred, Horace Taylor.

Witnesses. J. T. Gillentine, W. M. Skinner.

Filed February 27, 1897.

L. II. 'Clark,

Deputy Clerk.

Defendant answered.

After pleading the general issue, but admitting the entering into of the contract annexed to plaintiff’s petition, it averred that it specially denied that it was liable to plaintiffs for any amount of money claimed by them in the petition; they averred that they carried out in good faith the stipulations of their contract with the plaintiffs, and that if they did not furnish sufficient water to irrigate perfectly the plaintiffs’ land and to enable them to raise thereon a full crop of rice, their failure to do so resulted from the lack of water in the main bayou, from which the general supply of water was to be obtained; and that by the terms of the contract itself they are relieved from any responsibility to the plaintiff for said cause.

Defendant further represented that by the terms of the contract the plaintiffs were to construct their own laterals and maintain them and attend to them and keep them in good order according to plan or profile furnished by the defendant company, and that plaintiffs constructed said laterals in an imperfect and careless manner so that the flow of water was greatly retarded thereby; and that the flow of water on the plaintiffs’ land was further impeded and obstructed by reason of a board being placed in an opening in plaintiffs’ levee by some party or parties not in the employ of the defendant company, and for which defendant company is not responsible, and that defendant company’s manager himself removed said board, and that the flow of water upon the plaintiff’s rice land was to some extent interrupted and impeded by said board.

Respondent further averred that the plaintiff contributed to the damage complained of by reason of the fact that their laterals were not ready to receive the water at the time defendant company was ready to furnish it, and that considerable delay in watering plaintiffs’ rice land was caused thereby and that the plaintiffs’ laterals would not have been ready, even at the time that defendant began to supply water to respondent, had not B. R. Garland, one of the managers of defendant company, upon his own motion voluntarily aided them in building their laterals to get the¡m ready to hold water on their fields.

Respondent further represented that the plaintiffs themselves recognized the fact that they, respondents, had done all in their power under the contract to furnish sufficient water to raise plaintiffs’ crop, and that one of the plaintiffs, Hicklin J. Landers, after the crop had matured and while he was having his rice hauled, promised B. R. Garland, one of the defendants, that the plaintiffs would settle for their water rent as soon as they got their rice to the warehouse, and that Garland, relying upon the promise at the time, did not require settlement, which, had he done, the rent rice, due the defendant company, by the plaintiffs, would then and there have been paid. Therefore respondent averred that this suit for damages was and is a mere after thought, filed and being pressed for speculative purposes, and not to secure substantial justice.

The defendant company finally averred that though by reason of the failure of the bayou to furnish- sufficient water to mature the plaintiffs’ rice crop, yet, under the last clause of the contract, tne defendant company is entitled to one barrel of rice per acre from the plaintiffs as water rent, but as they can not now deliver up the rice, and as plaintitr cultivated one hundred acres in rice in the year 1896, and as rice tnat season was worth $3.00 per barrel, that plaintiffs owe to the defendant company the sum of three hundred and fifty dollars ($350.00), being the value of the rent rice due, and which defendant company now claims in reconvention of the plaintiffs.

In view of the premises the defendant company prayed that the demands of the plaintiffs in this suit be rejected and disallowed, and that defendant company have judgment in reconvention against the plaintiffs, jointly and severally, for the sum of three hundred and fifty dollars, the water rent due them now by the plaintiffs and still unpaid, with interest at five per cent, from November 1, 1896, until paid, and for general relief in the 'premises; and defendant prayed for trial by jury and for' general relief.

Plaintiff filed a motion asking that the court order defendant to elect which particular defense it would stand upon, urging and averring that there was inconsistency in the defenses.

Motion to Elect.

Landers i& Donnelly :

vs. :

Garland Canal Company. :

No. 882, Eleventh District Court, Acadia Parish, La.

Now into court comes Landers & Donnelly, and James E. Barry, receiver and liquidator of said firm, plaintiffs herein, and respectfully aver:

That there is inconsistency in the defenses set up herein in this; that the answer sets out, first, a general denial which, substantially, traverses the main averments in plaintiffs’ petition; that defendants neglected and failed to furnish a sufficiency of water to irrigate plaintiffs’ rice crops; thereafter, the special defense that defendants did comply with their contract by furnishing a sufficiency of water; while in a subsequent part of the answer, defendant contends that the failure of plaintiffs to receive a sufficiency of water was due to their neglect to have their laterals and ditches (as alleged) in proper order to convey said waters to their lands, and to the obstruction caused by permitting a board to obstruct and impede the flow of water to said lands.

That said defenses are inconsistent, and defendants should be required to elect on which of said inconsistent defenses they will proceed to trial,- and be restricted to said defenses and no other, and the defendant be required to make such election before proceeding to offer any' evidence.

That this motion is made at the beginning of the trial and before the offering of any evidence by defendants, and while the first witness of plaintiffs is yet under examination.

Wherefore, petitioners move that defendants be ordered to elect as above set forth, and that all evidence on the part of defendants he rejected until such election bo made; and movers pray for all general relief and costs.

The application was refused, reserving the right to plaintiffs to object to improper or inconsistent evidence.

The plaintiffs firm having been placed in the hands of a receiver, he made himself a party to the action. *

The court rejected plaintiff s’. demand and dismissed the suit, and plaintiffs appealed.

Opinion.

This is an action for recovery of the damages that are alleged to have resulted from the non-payment of a contract to do, and in compensation for the injury suffered thereby — the period of time stipulated for performance having elapsed, and the object for which the covenant was entered into, terminated.

The record discloses that the plaintiffs were engaged in planting rice during the year 1896, and, realizing that they did not have a sufficient natural supply of water for the purpose of irrigating their land, in order to guarantee a good yield, they entered into a contract with the defendant to furnish them an adequate suinply to enable them to 'grow and mature a crop — that season being an unusually dry one, and the fall of rain meagre, a crop of rice .could not be produced without irrigating the land by artificial means.

The plaintiffs aver full compliance on their part with all the conditions and obligations of the contract, the defendant’s failure to perform its part, and that demand had been made for' performance without avail and the resulting damages which they claimed through the defendant’s failure to perform its contract.

From the text of the agreement, it appears, that the defendant came under obligation to plaintiffs to furnish “a sufficient supply of water, including rainfall, to flood or irrigate and mature a crop of rice,” on land to be so planted, that “the water will flow from its canal without additional expense to the party of the first part” — the defendant.

It also appears that the plaintiffs, as parties of the second pan, agreed “to keep in good condition all levees, dams, etc., on the land described, and to see that there was no unnecessary waste - of water either by leakage or levees, or the lack of sufficient cross-levees to protect the same;” and, also, “to make or build all necessary levees, dams, flumes, eta, tó convey the water,” and to build half of the canal which passes through section fifteen of the plaintiffs’ land.

It was expressly stipulated' and mutually agreed by the parties, “that all levees were to be located at any point of the lands to be irrigated.” which the defendant might select, and that defendant had “a right to withhold water from any land mentioned, when, in its opinion, there was not sufficient stand (of rice) to warrant an average crop, or where the levees were not sufficient to .flood or hold water on the land without leakage or waste.”.

It was, also expressly stipulated and agreed by and between the parties that the defendant “is not to be held responsible for any unforseen erevass, or accident, or delays not caused by their own account, or the lack of water from the main bayou from which the genéral supply of water is obtained;” and that it reserved and retained full and complete control of the main'or connecting canal, and that plaintiff bad “no right to cnt, or open, or interfere with said control” without defendant’s consent — the plaintiffs to have a full water supply by the fifteenth of June.

The defendants answer denies any and all liability to the plaintiffs, and avers that the company carried out faithfully and to the letter, the terms of its contract; and that if it did not furnish “sufficient water to perfectly irrigate the plaintiffs’ land and enable them to raise a full crop of rice thereon, its failure to do so resulted from the lack of water in the main bayou from which the general supply of water was to be obtained, and that, by the terms of the contract ,it is to be relieved from any responsibility to the plaintiff for said cause.”

It further represents, that, by the terms of the contract, the plaintiffs obligated themselves to construct their own laterals, maintain the same, and keep them in good order, “according to a plan and profile furnished by the defendant;” but that, on the contrary, plaintiffs “constructed said laterals in an imperfect and careless manner, so that the flow of water was thereby greatly retarded.”

That the flow of water on the plaintiff’s land was “further impeded and obstructed by reason of a board having been placed in an opening in plaintiffs’ levees by some party or parties not in the employ of the defendant, and for which it was not responsible;” and that its manager removed said board “and that the flow of water upon the plaintiffs’ rice land was, to some extent, interrupted and impeded by said board.”

Further, that the plaintiffs either caused or contributed to the damage complained of, if any, by reason of the fact that they failed to construct their laterals in sufficient time to receive water at the time the defendant was ready to furnish it; and that their laterals would not have beeii ready at the time same were actually completed, had not the defendant’s manager voluntarily aided them in building same, and getting them in readiness to hold the water on their fields.

The cause was tried by the judge of the District Court, and on due consideration of the law and the evidence, he rendered a judgment rejecting plaintiffs’ demands at their cost.

In the course of the judge’s written opinion and reasons for-judgment, he says, that he is “satisfied that the canal people did all that was in .their power to give the plaintiffs all the water they could”— reciting the testimony supporting his belief.

He further states, that the defendant was not aware that the plaintiffs were not receiving their full share of water from the canal, or that there was any complaint on that score; that its knowledge of their shortage of water came too late, because the bayou from which it derived its supply of water for the supply canal, had gone dry,

That this was the cause of there being no rice crop made in that year.

He again says “Landers & Donnally could have made a better crop than they did, if they had helped themselves to water as their co-tenants did.”

His opinion proceeds upon the theory (1) that a party who neglects or fails to make use of an opportunity that is afforded him of lessening, to the extent of his means and ability, the injury that is about to be inflicted upon him, is inot entitled to compensation at the hands of the one by whom the same has been inflicted, except to the extent that same was- within his personal knowledge and might have been prevented by him.

He was of opinion that by the terms of the contract, no duty was cast upon the defendant to regulate the amount of water'each one of the various lessees was entitled to receive inter se — all of the lessees of rice lands having entered into one contract jointly with the defendant to furnish them a supply of water.

That his interpretation of the contract was, that the defendant was to send sufficient water down the canal to supply the rice fields, and that the lessees were to distribute it among themselves.

That defendant did all it could to carry out its contract, and would have done so', but for an insufficiency in the natural supply of water that it obtained from a bayou upon which its reliance for a supply of water to be furnished to the rice farmers was placed — same having failed on account of the prevalence of a drought, no rain having fallen, except once, during the time water was needed for purposes of irrigation.

That the proof discloses, that a short crop was made — about three or four hundred sacks, in all — but that the plaintiffs retained the whole, and surrendered none of same to the defendant in satisfaction of its demand for water rent.

The opinion says:

“Plaintiffs did not turn over any rice to defendant. 'He who seeks equity, must do equity.’ He can not be permitted to retain all the' crop, and sue tlie defendant for damages besides, and which I am of opinion, it does not owe. They were as much at fault, if not more so, than defendant, in not endeavoring to help themselves; or at least, in making an honest effort so to do.”

Our own investigation of the record has led us to the same conclusion as that which was announced by the district judge.

It is evident from an inspection of the contract, as well as a perusal of the evidence, that the Canal Company expected to obtain a supply of water for the purpose of irrigating the plaintiffs’ lands, from an adjacent bayou; and that it, in turn, was to be supplied with water by the fall of rain.

On this subject the contract declares that the Canal Company is “not to be lield responsible for any unforseen causes or accidents, or delays, not caused by its own account, or the lack of water from the main bayou from which the general supply of water is obtained.”

The defendant resists the plaintiffs’ demand, principally, upon the ground that, from lack of rain, the quantity of water in tlie bayou became so diminished, that the plaintiffs’ farms could not be supplied, and that the contract exonerates the Canal Company from liability on that score.

We think that proposition is amply sustained by the evidence.

Water in the bayou was supplied exclusively by the fall of rain, and all the witnesses practically concur in the statement that during the season of 1896, there was an exceedingily limited fall of rain in the vicinity of the 'Canal Company’s sphere of operations, and of the plaintiffs’ farms, in consequence of which a drought prevailed, and the supply of water in the bayou failed.

True it is that plaintiffs’ claim that they did not receive a fair or proportionate share of water in the spring of the year, before the supply was cut short by the drought, when they were ready to receive it; but the answer made thereto is, that the water is made to flow from the main canal into the rice fields by means of what are called “laterals,” that is to say lateral drains, that must be kept open so that the water may pass through, and that the plaintiffs failed to keep their laterals open, so as to enable them to receive their due and proportionate share of water.

This fact is substantially shown by the evidence; and by this means, the plaintiffs are found guilty of a contributory negligence, even if the defendant is conceded to have been at fault.

But we do not think the proof demonstrates the fault' or negligence of the defendant, or that it was guilty of any violation of its contract.

We concur with the judge a quo in his finding of the facts upon which he rested his judgment.

In its answer the Canal Company sets up a demand in reconvention against the plaintiffs, for the sum of three hundred and fifty dollars, on the hypothesis that there were one hundred acres of land in cultivation in rice, and that the water rent amounted to that sum, though the judge a quo made no allowance on that score.

In an answer to the appeal, that contention has been renewed in this court, but we do not see our way clear to grant the relief prayed for, as the evidence shows that a very short crop was made, and that the plaintiffs as well as defendants made a losing venture through the intervention of the vis major.

Judgment affirmed.

Rehearing refused.

Nioholls, C. J., recused.


text:
    No. 13,537.
    State of Louisiana vs. Oscar Keiner.
    Syllabus.
    1. When his case was called for trial, the defendant made a showing for a continuance, alleging in his affidavit that by an absent witness he could prove that he bought from him the property he was charged with having stolen.
    2. After the continuance had been refused, the District Attorney refused to admit that if the absent witness were present, he would testify as stated in the affidavit.
    3. The trial judge refused to grant a continuance, or to allow the affidavit to be 1-ead for the reason that he was satisfled from the return of the sheriff that witness was not and had never been in esse; and that the name was given by the accused only for the purpose of a continuance. The facts do not show that the trial judge was in error. It has been repeatedly held that the granting or refusing of a continuance is necessarily left, in great part, to the discretion of the nisi prius court.
    APPEAL from the Tenth Judicial District, Parish of Rapides— Hunter, J.

      Milton J. Cunningham,, Attorney General, (Charles M. Cunningham of Counsel), for Plaintiff, Appellee.

      Ryan & Blackman for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant, Oscar Reiner, was indicted by the grand jury of Rapides parish on the fifth day of April, 1900, for the larceny of a steer in that parish on the fourth day of January, 1900.

He was arraigned on the same day that the indictment was returned into court, pleaded not guilty and asked for a trial by jury. On the day he was* arraigned, the case was set to be tried on April 10th, 1900, and on that day he was put on trial. On same day the jury found a verdict against him of guilty as charged, and his punishment was fixed by the judge at eighteen months in the penitentiary. From the sentence of the court and the verdict of the jury, he prosecutes this appeal.

The bill of exceptions setting- out the grounds upon which the appeal is based states, in substance, that in due time, before the trial, he caused a summons to issue to Billy Bunk, an asserted witness. The facts brought up on appeal by this bill of exceptions, show that the deputy sheriff in whose hands this summons was placed for service, in his return to the court, stated that he made a diligent search in vain to find this witness; that he went to the place the accused told him the witness lived and made inquiry of every person in the neighborhood, and that -he could not find any one who ever knew or had heard of any one of the name given as that of the asserted witness.

On the day of the trial, when the names of the witnesses for the defense were called, Billy Bunk failing to answer to his name, the accused, through his counsel, declared to the court that he could not go to trial without the presence of this witness, and on being ordered by the court to make a showing for a continuance, he filed his application for a continuance for the alleged reason that Billy Bunk was a material and important witness by whom he could prove that he bought from him the steer which he was charged with having stolen; that until a few weeks prior to the trial he lived near Cheneyville in the parish of Rapides.

The District Attorney refused to admit that if the absent witness were present he would testify as stated in the {iffidavit made for a continuance.' The trial judge overruled the motion for continuance, to which ruling- the accused, through counsel, retained the bill of exceptions in question. The trial judge, in the statement which is made part of the bill of exceptions, says that he refused to grant a continuance for the reason' that he was satisfied from the return of the sheriff that the witness never had any existence, ajad that the name was given by .the accused for the purposes of the tri'al and to obtain a continuance. The trial judge embodied the following in the bill of exceptions as part of his statement of facts: “The evidence on the trial showed the correctness of my views and the return of the sheriff, for no one could be found of the m^ny citizens present from that neighborhood who ever saw or heard of any such man living in that part of the country. I attach the return of the sheriff as part of my reasons, -x- -x- *« The defendant filed a motion for a new trial on the 21st of April, 1900, on the ground that the verdict was contrary to the law and the evidence. This motion was overruled.

We have not found that the defendant has a good cause for complaint on the grounds urged in his defense. He did not attempt, by any testimony whatever, to meet the charge that the asserted witness was a mere name invented by him for the occasion. Ten days elapsed from the date he was found guilty by the jury to the date that he filed his motion for a new trial, and yet, in that time and in the days preceding the trial, he did not produce the least information concerning the whereabouts of his asserted witness. In his affidavit for a continuance, he states that he had learned “that the said Billy Bunk is now in the southern portion of the State, about Plaquemine,,’ and in the brief before us in his behalf it is stated that “Plaquemine is only about five or six hours’ run from Alexandria.” In a case of this importance he, if his asserted witness had any existence at all, should have found in support of the assertion of due diligence some clue showing that an error had been committed and that the name was really of a person whom some one had heard of and had met. In view of the total absence of all evidence regarding this named witness, we will not assume error in the refusal to grant a continuance. The judge of the district court must have concluded that if he lived in Rapides when the accused gave direction as to where to find him, some one would have known or heard something about him. lie also evidently did not believe the affidavit of the accused that the witness was at or near Plaquemine, which fact he had averred in his affidavit for a continuance-We will not undertake to say that he erred, especially in view of the fact that ten days after, when the motion for a new trial was presented to the court, the accused did not set out any facts whatever going to show that this named witness was an existing person.

The complaint of the accused in the brief is that the judge virtually traversed 'the affidavit of this accused which he says is not permissible, citing several decisions in support of this proposition; that there were only two witnesses put on the stand by the State, a deputy sheriff and a private citizen, who stated that they did not know any such person as Billy Bunk, and that they had nevei heard of him; that this was brought out by the State to rebut the statement of the accused on the stand, under oath, that there was such a man and that he had bought the steer from him. This evidence was not admitted to traverse the affidavit and the reference made to it by the district judge, as showing the correctness of his views-, gives the accused no reasonable ground of objection. It was admitted without objection during the trial, and if it affirmed the correctness of a prior ruling in a matter of fact, it only gave additional force to the ruling. It follows, of course, if there was no such witness as Billy Bunk, the court properly refused to permit the affidavit of the ¡accused to go to the jury to profe the facts he swore he could prove by the named witness.

It has been repeatedly held that the granting or refusing- a continuance in a criminal case is a matter left in great part to the discretion of the court. Where an accused totally fails to show that the discretion has not been properly exercised- there remains but one alternative on appeal and that is to affirm the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


author: Blanchard, J.

text:
    No. 13,530.
    Mary E. Cooney, Widow of J. E. Seeman, vs. G. C. Preot, State Tax Collector, et al.
    APPEAL from the Second Oity Court, Oity of New Orleans — Fernandez, J.

      Clegg & Quintero for Plaintiff, Appellee.

      James J. M°Loughlin, Assistant Oity Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

This case is identical in its facts, 'and as to the situation of the property involved in respect! to its liability for taxes for the years 1895 and 1896, as that of Leonidas C. Ferrell vs. George B. Penrose, City Treasurer, No. 13,529, just decided.

For the reasons therein assigned, and because the effect of the judgment in State ex rel. Cunningham vs. Board of Assessors, 52 La. Ann. 224, is to exempt the property here, as well as that of the said Ferrell, from taxation for the years named, the judgment appealed from in the instant case must be affirmed.

But this ruling is not to be held as applying tot years later than those as to which taxes were claimed on the property involved in the case in 52 La. Ann., supra.

As to later years, the question of the partial liability of the property for taxes, under the views expressed in the Ferrell case; is left open for consideration and action by the proper assessing officers of the State and city.

Judgment affirmed.


text:
    No. 13,529.
    Leonidas C. Ferrell vs. George B. Penrose, City Treasurer.
    Syllabus.
    1. Property used partly for school purposes and partly for purposes of residence by the owner and his family cannot claim the full exemption from taxation accorded by Art. 207 of the Constitution of 1879 and Art. 230 of the Constitution of 1898 to property “used exclusively for colleges and other school purposes”.
    2. The most that can be claimed in such a case is a proportionate reduction of assessment to correspond with the rating of that part of the property used for school purposes compared with the value of the whole.
    3. In the matter of tax exemptions it is difficult to lay down any precise rule to be followed. Bach case is dependent on its own state of facts. When . there is doubt the property should be assessed, and let the owner bring his complaint before the courts.
    4. It is a safer rule to hold property liable in part for taxes, where the situation justifies it, than to exempt in toto.

    APPEAL from the Second Oity Court, City of New Orleans— Fernandez, J.

      Clegg & Quintero for Plaintiff, Appellee.

      James J. McLouglüin, Assistant City Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff is the owner of a lot of ground, with buildings thereon, in the city of New Orleans, known as No. 2417 Coliseum street.

A claim against the property for taxes for the years 1895 and 1896 having been assessed by the city, this action was brought to enjoin proceedings looking to the enforcement of the taxes and for avoidance of the assessment.

The contention on part of plaintiff is that the property was used in 1895 and 1896 exclusively for school purposes, and, hence, was exempt from all taxation under the provisions of Art. 207'of the Constitution of 1879.

The judgment of the trial court sustained this contention and defendant appeals.

Art. 207 of the Constitution of 1879 exempted from all taxation “buildings and property used exclusively for colleges or other school purposes.”

Art. 230 of the Constitution of 1898 reaffirms this, slightly changing the language as follows: “all buildings and property used exclusively for public monuments or historical collections, colleges 'and other school purposes”.

The public policy of the State is thus shown to be to exempt from taxation property used for school purposes.

But in order that the exemption may apply and be claimed the mandate is the property must be used exclusively'for school purposes.

A house is not to be considered exempt from taxation merely because a school is taught in it.

Premises, the main purpose of which, or the principal use to which put, is to afford a place of residence, a habitation, to the owner, his family and others whom he may admit to his household, do not become irresponsible for taxes by reason of the fact that a school is carried on there. 52 La. Ann. 237.

If people live in the house, occupying apartments there in the sense of making it a place of residence, permanent or temporary, it must clearly appear that such use, such' occupancy, is purely and entirely incidental to the main purpose for which the property is then dedicated, viz.: — educational.

See 52 La. Ann. 227.

If this does not appear with certainty, it is the duty of the assessor to assess for taxes and the tax collector to collect the taxes.

Whatever doubt exists is to be construed against the tax exemption, for laws granting such exemptions are in derogation of common right and to be construed strictly.

In State ex rel. Cunningham vs. Board of Assessors, 52 La. Ann. 228, this court said, in effect, that where the use of apartments in a college by teachers was necessary or contributory to the discipline and efficiency of the institution — they residing there only because they are employed in it — such residence is the incident of the purpose of the' college and, hence, a circumstance not prejudicial to the exemption. We adhere to this ruling, but, as to this, repeat here what was said in the case cited, that each ease of claimed exemption must stand or fall on the facts peculiar to it. Because the facts one year may justify the exemption, it does not follow that the same property is entitled to exemption the following year. A different state of facts prevailing- may take it out of the pale of exemption. When there is doubt the property in whole or part, according as the facts justify, should be assessed and let the owner bring- his complaint before the courts.

Oases may arise where property may be found to be used in part for college or school purposes and in part for other purposes not incidental to the college or school conducted there. In such cases, the court has sanctioned the rule of division. That is to say, holding that part used for purposes disconnected from that for which the exemption is conferred, should be assessed at a value proportioned to the entire building. State ex rel. Cunningham vs. Board of Assessors, 52 La. Ann. 227; Grand Lodge of Masons vs. City, 44 La. Ann. 659. See also Burroughs on Taxation, §71.

We affirm anew this doctrine and commend it to tax assessors. It is a safer rule to hold property liable in part for taxes, when the situation justifies it, than to exempt in toto.-

Where the property is going- to be exempted from assessment, if it appear that part of it, proportionately to the value of the whole, may well he brought within tha rule of non-exemption, because of other uses to which put, then do so and assess for part valuation according to the rule of proportion. That is to say, from the assessed value of -the whole property deduct the value of that part which is not subject to taxation. This would apply particularly to those cases where part of a building is used for college or school purposes and part as a residence for the owner and his family. There the most the owner could claim in the way of exemption would be a proportionate reduction of assessment to correspond with the rating of that part of the property used for school purposes compared with the value of the whole.

With regard to the case at bar, we find that the identical property here involved, and for taxes for the same years 1895 and 1896, formed part of the controversy in State ex rel. Cunningham vs. Board of Assessors, 52 La. Ann. 224. That is to say, the contest there was to bring upon the assessment rolls for taxation purposes certain properties, and among them this property of the plaintiff.

But the ground upon which it was there claimed this pa'ticular property was not entitled to exemption was that the same was used as a private school “for private profit and income”. This resulted, it was contended, because tuition was charged.

The judgment of the district court in that case rejected and dismissed the demand of the plaintiff in tobo. On appeal here, this judgment was in part reversed and in part affirmed.

As to the property of the plaintiff, the contention that it was taxable because tuition was charged was not sustained by this court, and the judgment of the district court as to this property was affirmed. This had the effect of leaving the property, as to taxation for the years 1895 and 1896, in the condition the Board of Assessors had placed it, viz:— listed on the assessment rolls but marked “exempt”.

In view of this, while the ground urged for non-exemption in the former suit was merely because the property was used for purposes of private profit and income, and the question of its non-exemption in part because of its use partially as a residence was not considered and passed upon, we are not disposed now to disturb the status of thé property as to taxation for the years 1895 and 1896 as fixed by the judgment in that suit. That judgment left' it untaxed for those years and, for that reason, we will affirm the judgment of the district court in the instant case which fixes its status as untaxed property for the years 1895 and 1896.

But this ruling is not to be held as applying to years later than those as to which taxes were claimed on the property involved in State ex rel. Cunningham vs. Board of Assessors, supra.

As to later years, the question of the partial liability of the property for taxes, under the views herein expressed, is left open for consideration and action by the proper assessing officers of the State and city.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,513.
    Whitney National Bank vs. Clifton Cannon.
    Syllabus.
    1. Where, after its maturity, the maker of a promissory note 'indorses upon it “Payment of this note extended to * * *” (a fixed date) and signs his name, and thereafter negotiates said note under circumstances which Justify the belief that he contemplated that the holder would put it in circulation as a live, unmatured, negotiable instrument, and such note is put in circulation, and is acquired, in good faith, for value, by a third person, without notice of equities between +he original parties, and before the maturity fixed by the endorsement, it would be against good conscience to allow such maker to escape the obvious and intended consequence of his own deliberate acts, and thereby to impose a loss upon such third person, who has dealt upon the faith of the representations so made.
    2. Where the indorsement in such case bears no date, it will be presumed, in favor of^such innocent third holder, that it was made before the maturity of the note.
    APPEAL from the Tenth Judicial District, Parish of Rapides— Hunter, J.

      William H. Peterman for PlaintifE, Appellant.

      John II. Overton for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff sues on two promissory notes of $3000 and $6000, respectively, drawn and indorsed by the defendant, and originally secured by mortgage, and prays for a personal judgment for the aggregate amount with interest and costs. .The defense set up is that the plaintifE received the notes from Charles Hernandez as collateral security for a debt which has since been paid, and that, should it appear that plaintifE has any suable interest therein, said notes were acquired from said Hernandez, the original holder, after maturity, and are subject to the following equities, to-wit:—

That- the note for $3000' was issued by defendant to said Hernandez as accommodation paper and without consideration, and was acquired by plaintiff without consideration, and with knowledge of its character. That the note for $6000 was executed as collateral for advances to be made and that defendant is entitled to a credit thereon of $2107.04, and that Hernandez is indebted to plaintifE in the sum of $2000 on account of a draft accepted by him and thereafter protested for non-payment, which amount should, also, be credited on said note.

There was judgment for the plaintiff in the sum of two thousand dollars on the three thousand dollar note, with interest at 5 per cent. from July 29, 1895; and for six thousand dollars on the note for that amount, with interest at 8 per cent, from January 1, 1894, subject to a credit, however, of $2107.04, as of date March 30th, 1895, and of $2000, as of date December 23, 1895; and from the judgment so rendered, plaintiff has appealed.

The correctness of the judgment on the $3000 note is admitted by the defendant, and is called in question by the plaintiff .only with respect to the rate of interest, which it is claimed, should be 8 per cent. instead of 5 per cent., plaintiff’s counsel referring, in his brief, to the “testimony of the cashier” to the effect that the loan, to secure which the note in question was pledged, bore interest at the higher rate. We have been unable to find this testimony in the record, and do not, therefore, feel authorized to make any change, in this particular, in the judgment appealed from.

The $6000 note, payable to the order of the maker and by him endorsed in blank, first matured in January, 1894. It had been given for advances to be made, and which were made, during the year 1893, and according- to the testimony of the defendant, it was paid in full, at, or about, the date of its maturity. The defendant, continuing his xfianting- operations, however, needed advances for the year 1894, júst as he had needed them for 1893, and his merchant, Hernandez, required security. The note in question had never returned to the hands of its maker and was regarded by. the parties as being available for that purpose, except that it appeared, upon its face, to be past due. There were but two persons concerned in the matter, in fact the maker, himself, is the only party to the note, as Hernandez’s name does not appear on it, so that, unless there is some law to the effect that a man who can make a new negotiable note for $6000 is incapable of converting a past due note for that amount, which he has already made, iiito a live, negotiable instrument, it was competent for the defendant to so deal with the note in question; and he undertook to do so, by writing on the back of it “Payment of this note extended to Jan. 1, ’95”, and signing his name. In this condition, the note remained in the hands of Mr. Hernandez, as security for the advances made by him for the purposes of the defendant’s crop of 1894. The results of the year’s operations were not so fortunate as those of the year before, -and, instead of paying the note in full, showed only a balance of $2107.04 to the credit of the defendant on Hernandez’s books, the entry there, being “Or. on acct. note, $2107.04”, though no such credit was endorsed upon the note itself. In other respects, the situation was the same as it had been in the preceding year: — the defendant wanted advances; his merchant required security; the note was considered available,. save that it was past due again, and it was, therefore, extended, by the defendant, who was still the only párty to it, writing on the back “Payment of this note extended to Jan. 1, 1896”, and signing his name. This was done in March, 1895. It was a new contract, for a new consideration, whereby Hernandez agreed to make advances for 1895, and the defendant, in consideration thereof, placed in his possession and under his control, to be used by him, as his own, and as occasion might require, an instrument which bore upon its face all the elements of perfect negotiability save that it appeared to be past due, and which, in that respect, was deliberately amended and changed by the maker, with the consent of the holder, in order that it should no longer be past due, but that it should be a live instrument, with nine months to run, and in order that it might, should occasion require, be used, as such, for the benefit of the maker and holder alike. There is no pretence hero that Hernandez was without authority to pledge the note, and the face of the transaction shows that it was contemplated that he might have occasion to rise it, and that ho should, in such case, use it, as a live, negotiable security, otherwise there would have been no necessity for the extension, since, merely to be held by Hernandez it was as valuable without the extension as with it. Two months later, in May, 1895, Hernandez borrowed $8500 from the plaintiff and pledged the note in question, with other securities, as collateral. How much of the $8500 was advanced by him to the defendant, does not appear. Nor does it appear how the defendant’s account stood at the end of the year 1895, or upon J anuary 1st, 1896, when the note matured. The credit of $2107.04, which is claimed, is the credit which appeared upon Hernandez’s books as the result of the operations of 1894, before the note had been extended and repledged in order to secure the advances to be made during the year 1895.

What amount of money was so advanced in 1895, the record does not disclose. The defendant testifies that Hernandez advanced him “partially” for 1895, and, if this be true and it is also true that he was entitled to a credit of only $2107.04 on the note in question when the season began, it would seem to follow that he is not entitled to the same credit since the advances, partial or otherwise, have been made. The defendant also testifies that, at the date of the institution of ’this suit, May 1? 1899, Hernandez owed him about $107.04, but as he, practically, admits that he is liable on the note which we are now considering to the extent of nearly two thousand dollars, it is difficult to understand what is meant by that statement. Moreover, in order to bring his liability on said note down to the figure stated, he claims a credit of two thousand dollars, by reason of the fact that, in July, 1895, whilst the note was pledged to plaintiff for all that it called for, he drew a draft on Hernandez, which the latter accepted and thereafter failed to pay; but why he drew the draft does not appear, nor does the evidence show why it was not paid, except in so far as that information is contained in the statement, in the proces verbal of the notary who protested it, that payment was refused, because “the conditions of the acceptance had not been complied with”.

The learned counsel for the defendant stands upon the proposition that after a negotiable note has matured according to its original tenor, it can not be reinvested with the attribute of negotiability by any endorsement which may be placed on it by the maker or other person, and ho relies upon certain cases decided by our predecessors in this court as supporting his position.

It must be admitted that this proposition is so very difficult to reconcile with the elementary principles and definitions applicable to negotiable paper that, in order to sustain it by adjudged cases, there ought to be practical identity between the case under consideration and those relied on.

In the case before us, the note lacked but one thing to bring it within the recognized and admitted rule of perfect negotiability, i. e. it was past due. And it is said that no human power could remedy that defect, and the declaration of the maker himself, written and signed, upon the note itself, to the effect that it should not be considered as past due, but should be held, to all intents and purposes, not to have matured — • a declaration made in his interest, and in order that others should receive the instrument as a live and unmatured security, is of no effect and is not even binding on the man by whom it was made.

Prof. Norton, in a recent work, dealing with the question of “negotiability”, summarizes as follows:

“What words will then be deemed by the courts to confer negotiability? Whether the parties to an instrument can give it a nego- “ fiable character, with all the incidents pertaining to negotiable paper, “ when it is not, in terms, within the class of instruments known to the “ law as ‘negotiable’ may be questioned,” says Allen, J., in Everton vs. “Bank (66 N. Y. 18). But, however, this may be with instruments “ intended to be otherwise than orders or promises for the payment of “ money alone, still it is probably the rule that, in the instruments gov- “ erned by the law merchant, any words in a bill or note whence it can “ be inferred that the person making it intended it to be negotiable will “ give it- a transferable quality against that person. This is probably the “ better rule, although it was formerly the English rule that, unless a “ bill or note be payable to order or bearer, it was not negotiable. The “ intention of the parties should, and probably would, override the form “ of words, and, if the court can determine, from the words used, that, “ as a matter of fact, it was the intention of both the parties, the one to “ assume the rights of a holder of a negotiable instrument, and the “ other to incur the liabilities of a party thereto, and the instrument, “ in other essential respects contains the elements of a negotiable bill “ or note, the instrument would probably be treated as negotiable, “ though formally incorrect.” Norton on Bills and Notes, pp. 15-16.

The author is here referring to instruments irregular in character, the original language of which leaves it open to question, as to whether, under the law merchant, they could be! considered negotiable; hence his use of the word “probably”.

Tiedman, upon the same subject, says:

“ No exact or particular form of words is necessary in order to give the character of negotiability to commercial paper * * * as it was expressed by the Supreme Court of Pennsylvania, ‘order’ or ‘bearer’, are convenient and expressive, but clearly not the only words which will communicate the quality of negotiability. Some equivalent words should be used. Words in a bill, from which it can be inferred that the person making it intended it to be negotiable, will give it a transferable quality against that person.”

Tiedman on Commercial Paper, 21.

Daniel on Negotiable Instruments, §106.

As to the note under consideration, there can be no sort of question that the language as originally used imparted negotiability, and there can be as little question that it was the intention of the maker, in writing the words “Payment of this note extended to January 1st, 1896”, and signing his name, to give notice that the perfect negotiability which pertained to the instrument originally was not to be affected by the fact that the date of maturity had passed. This was the deliberate act of the maker of the instrument, and the consequences which resulted are only those which it must be presumed were contemplated by him.

Upon the other hand, the cases to which we are referred by the defendant’s .counsel, were cases in which there was fraud, and in which the indorsements, made after maturity, do not ¿ppear to have been made for the purpose of extending the circulation of the instruments.

In the case of Marcal vs. Melliet, 18th Ann., 225, a mortgage note for fifteen hundred dollars, was extended, by indorsement, after maturity, to a fixed date, was paid shortly afterwards, and was then lost or stolen. The court found that the holder, who sued on it, had not acquired it fairly, and that would seem to have been a sufficient reason for the judgment rejecting his demand. It was also held, that the indorsement, having been made after maturity, did not re-invest the note with unrestricted negotiability. The circumstances of this case, however, indicate that the note was extended by the maker merely to obtain time, and do not indicate that the indorsement, which was somewhat peculiar in its phraseology, was intended to keep the note in circulation.

In Bank vs. Bouny, 42 A. 439, it appeared that Bouny’s clerk, fraudulently and after maturity, pledged, for his own account, a note made by his employer, which the latter had paid and taken up. We find nothing in the facts of this case, as reported, which should make it an authority in the case under consideration.

In Sagory vs. Bank, 42 A. 627, it appeared that the same individual who figured in the Bouny case, held certain notes, belonging- to the plaintiff, of whom he was the agent, that he fraudulently disposed of them for his own account, and that the plaintiff sued to recover them from the bank to which they had been transferred. The facts of this case are not very clearly stated, though it appears that some of the notes involved were extended by indorsement after maturity, and that the court applied the doctrine laid down in Marcal vs. Melliet, and held that, whilst an extension before maturity preserves fhe negotiability of a note, such extension after maturity does not revive such negotiability.

These are the only authorities which have been found, purporting to sustain defendant’s position, and, in view of the wide difference between the facts upon which they rest and those disclosed in the instant ease, we feel constrained to hold that they are 'insufficient for the purpose for which they are cited.

We are satisfied from the evidence in this case, that it was within the contemplation of the defendant, in indorsing upon the note sued on, the extension of its maturity, and in thereupon negotiating it, that it might, and probably would, by reason of such indorsement, be put in circulation as a live, unmatured, negotiable instrument, and that it was his purpose, and the purpose of the merchant to whom he delivered it, that it should be so used if jthe needs of either should require, Under these circumstances, and in view of the fact that the note was put in circulation as the defendant contemplated and intended that it might be, and with the status which it was his purpose to give it, and was acquired, in good faith, for value, without notice, and before the maturity indicated by the extension, by an innocent third person, whose money was thus obtained, we are of opinion that the doctrine, as stated in the cases to which our attention has been called, should not be permitted to control, and that it would be against good conscience to allow the defendant to escape the obvious and intended consequences of his own deliberate acts, and thereby impose a loss upon others, who have acted upon the faith of his representations. Aside from this, the case before us may be differentiated from those relied on by the defendant upon a narrower, but equally' conclusive ground, to-wit:

Going back to the case of Marcal vs. Melliet, it will be found that the extension of the note is dated June 24th, 1863, whereas the note matured, according to its tenor, July 15th, 1862. It was therefore evident, from the instrument itself, that it was extended after maturity, and any one taking it was affected with knowledge of that fact. Conceding, arguendo, then, that where knowledge that a note has been extended after maturity is brought home to the third holder, he may be met by such equitable defences as might have been set up against the original holder, it by no means follows that the same rule should be applied in a ease where it appears that such third holder did not know, and had no means of knowing, whether the payment of the instrument was extended after maturity or before. In the other case cited, it does not appear whether the extension was dated or not. In the instant case, the extension bears no date, though, from the facts disclosed, it seems evident that, if the defendant and Hernandez had supposed that the availability of the note, 'as collateral security, would thereby have been affected, the extension would have borne a date anterior to the maturity of the instrument, which would have been entirely unobjectionable. As the matter stood, however, the plaintiff was justified in assuming that the extension was indorsed on the note' before its maturity. Speaking of indorsements, generally, Mr. Daniel says: “There is always a presumption, when the payee’s or indorser’s name is indorsed upon a bill or note, that it was done before maturity”. Daniel on Negotiable Insts., Vol. 1, §784.

When an acceptance bears no date, it is presumed to have been made within a reasonable time after the drawing of the bill, and prior to the day of payment. Tiedman on Commercial Paper, p. 220.

We think the rule in regard to presumptions, as thus stated, is particularly applicable in the instant case, where the purpose of the indorsement was to give to the note the status to which the present holder believed it entitled when it received it as security for the loan made to Hernandez.

The suggestion that the fact that no payments of interest were indorsed on the note, when the plaintiff received it, ought to have put the plaintiff on its guard, might be applicable if the interest were payable annually, or otherwise in installments, but such is not the case. The note bears interest from date until paid, and so long as the note was not due the interest was not due, and there was no reason why it should have been paid. Even where interest is payable annually, it has been held that the holder of ‘a note loses no rights against the parties to it by neglecting to demand it, and that he has the election to do so, or wait and collect it all with the principal.

National Bank of North America vs. Kirby, 108 Mass., 497.

The judge a quo allowed interest on the six thousand dollars note (after making the deductions claimed by the plaintiff) at the rate of 8 per cent, per annum, from January 1, 1894, and as the defendant has not appealed or asked any amendment of the judgment, we do not feel authorized to disturb it at his instance. The counsel for plaintiff, however, fixes the date from which the interest on both notes should run, as May 1st, 1899, and asks that it be so decreed, and his request will be complied with.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, in so far as it allows the defendant credit for $2101.04 and $2000, respectively, on the $6000 note herein sued on, and that plaintiff now have judgment on said note in the sum of $5000, with interest thereon at the rate of 8 per cent, per annum, from May 1, 1899, until paid. It is further ordered, adjudged and decreed that the plaintiff be allowed interest at the rate of 5 per cent, per annum on the $2000 for which it has obtained judgment on the $3000 note sued on, from May 1, 1899, instead of July 29, 1895, and that the judgment appealed from be, in other respects, affirmed, the appellee to pay all costs.

Mr. Justice Breaux concurs in the decree.