text:
    No. 1852.
    Second Circuit Appeal.
    FLORSHEIM BROS. DRY GOODS CO., LTD., v. PEPPER MERCANTILE CO., ET AL.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest, Appeal — Par. 626.
    The appellate court will not disturb the judgment of the trial judge on the credibility of witnesses or the weight of testimony unless clearly erroneous. In this case the weight of evidence did not show that a partnership existed.
    Appeal from the Parish of Winn, Hon. R. W. Oglesby, Judge.
    This is a suit on an open account.
    There was judgment against the firm and E. J. Pepper as prayed for, but the demand against Z. Z. Pepper and L. C. Pepper was rejected.
    Plaintiff has appealed.
    Judgment affirmed.
    Moss & Peters, of Winnfield, attorneys for plaintiff and appellant.
    J. C. Pearce, Stubbs, Theus, Grisham & Thompson, of Monroe, attorneys for defendant and appellee.
   PORTER, J.

This is a suit on open account for goods sold, and the contest grows out of the following facts: In the spring, or early summer, of 1921, there was organized in Sikes, a small railroad village in the Parish of Winn, Louisiana, a mercantile concern under the name of the Pepper Mercantile Company, which was operated a year, or perhaps a little longer, and then failed. During its brief existence, the plaintiff company sold it quite a large amount of goods, and it now sues for a balance of $1,605.00, less a .credit of- a small quantity of goods which had been seized and sold.

The petition alleges that the defendant firm was composed of Z. Z. Pepper, E. J. Pepper and L. C. Pepper, and prays for judgment in solido against each of these parties.

There was judgment against the firm and E. J. Pepper, as prayed for, but the demand against Z. Z. Pepper and L. C. Pepp.er was rejected, and plaintiff has appealed.

E. J. Pepper is the. nephew of Z. Z. Pepper, and L: C. Pepper is his son, who, it appears, was only 20 years old at the time the goods were sold. Z. Z. and L. C. Pepper answered, denying that they were partners in the firm, or had any interest or connection, as partners, with it.

The real contest in the case is over the question whether Z. Z. Pepper was a partner or connected as such with the firm, and the issue as presented to this court is admittedly one of fact solely.

When the defendant firm applied to the plaintiff for a line of credit, one of the members of plaintiff’s firm went to the office of R. G. Dun & Co., of Shreveport, and was shown a statement made out by a member of the defendant firm, for the purpose of securing a credit rating by Dun & Co. It appears that Z. Z. Pepper had previously done business with plaintiff’s firm, and was known to its representative, seeking the information. The said statement gave, among other facts, the members of the firm as Z. Z. Pepper, L. C. Pepper and E. J. Pepper, and was signed “Pepper Mercantile Co., E. J. Pepper”. It stated Z. Z. Pepper owned unincumbered land, timber and stock worth $30,000, and E. J. Pepper owned lots and buildings in Sikes worth $1,100. Plaintiff’s representative, at the time, was more or less familiar with the handwriting of Z. Z. Pepper, and being of the opinion that the said statement was made out in his handwriting, willingly extended the credit asked for. It is not. contended that there was any written agreement of partnership, and it is clear, we think, that when the suit was filed, the principal ground upon which it was hoped to connect Z. Z. Pepper with the firm, was this statement, coupled with the opinion of its representative that it was in the handwriting of the said Pepper. And, on the first day of the trial, Mr. Florsheim, the representative of the plaintiff referred to, tes'tified positively that such was the case. On the following day, however, having secured the original report from Dun & Co., in the meantime, and having compared it with the handwriting of Z. Z. Pepper, took the stand and frankly testified that his testimony on the previous day was a mistake.

Z. Z. Pepper testified emphatically that he did not authorize the use of his name in the said statement, that he had never seen it, and knew nothing of its existence.

With the R. G. Dun & Co. statement, which shows to be in the handwriting of E. J. Pepper, eliminated as a means of connecting Z. Z. Pepper with the firm, the able counsel for the plaintiff was forced to rely upon other, and less conclusive facts and circumstances. These are: A certain

check given by Z. Z. Pepper on, it is alleged, the Pepper Mercantile Co., in payment of a debt which he personally owed; a quantity of coffee — the amount'. is- mot given — which he purchased, and which was subsequently found in the store of the defendant firm; certain statements or admissions which he is alleged to have made to Head, A. J. Crain, Walker, Pucket and R. E. Crain.

Before discussing these matters, it will be well to state some facts admitted by Z. Z. Pepper, who lived about two miles from the village of Sikes, and owned several farms in the vicinity of the one upon which he resided, and conducted a small store or commissary, from which he sold goods, principally, we assume, to his employees. Some time in the early part of 1921, his nephew, E. J. Pepper, applied to him for a loan of $1,000.00 with which to start a store at Sikes, and he agreed to loan his nephew that sum, if the Bank at Winnfield would discount his note. But the Bank would not let him have but $300.00, and his nephew opened the business on this sum and whatever he had in addition, which was probably not much, if anything. His son, L. C. Pepper, worked in the store five or six months.

As stated above, the business lasted about a year, and E. J. Pepper left for parts unknown, leaving nothing behind except a small remnant of the stock of goods, numerous debts, and a reputation as a forger and a swindler. In addition to the $300.00 above mentioned, Z. Z. Pepper let his nephew have 13 bales of cotton, for which he received nothing.

Since we are constrained by the law and the facts to affirm the judgment of the lower court, it will serve no useful purpose to discuss, in any great detail, the facts and circumstances relied up to connect Z. Z. Pepper with the defendant concern. We shall touch lightly upon some of the most important ones.

Z. Z. Pepper states that he bought a lot of coffee for his store or commissary from a Monroe concern, upon the assurance that the price of coffee would go much higher; that immediately afterwards, the price began to decline, and that he sold his nephew a small quantity — he says about $70.00 worth. This was the coffee which was seen in the Pepper Mercantile ■ Co.’s store by the traveling salesman of the house in Monroe, which had sold it, as above stated.

A judgment had been obtained against Z. Z. Pepper on a debt for which he was security for some $429.00, and it was paid by a check on the First National Bank of Winnfield. This check was drawn on a blank form of checks used by the Pepper Mercantile Co., and signed by that concern, by Z. Z. Pepper. As it was filed in evidence, a line is drawn through the words “Pepper Mercantile Co.” and Pepper says that, according to his recollection, this was on the check when he signed. The' cashier of the Bank, and perhaps another witness, say this was not the case. The only significance attached to the check is, of course, the fact that Pepper’s personal debt was paid by a check drawn by the Mercantile Co., and signed by him. The fact as to when and by whom the erasure was made, is not satisfactorily explained, but it is shown, beyond any reasonable doubt, that Z. Z. Pepper applied to Mr. Bailey, President of the Bank at Winnfield, for some money to pay this very judgment, telling Mr. Bailey that he was going to try to raise as much as he could from other sources, and Pepper testifies that he did induce his nephew to let him have $129.00 on what he owed him, and that he got the balance, $300.00, from the Bank, and gave his note for that amount. He then deposited the full amount in the Bank and drew against it — the check in question. He is fully corroborated by Mr. Bailey with reference to the borrowing of $300.00, and the purpose of it. R. E. Crain, Cashier of the Bank at Sikes, testified that on. a certain occasion, Z. Z. Pepper asked him if he would not like to buy his (Pepper’s) interest in the Pepper Mercantile Co. Pepper says that the “interest” he referred to was the debt of some $450.00, and 13 bales of cotton which the Company owed him, and that he would have explained the matter fully, 'but that Crain declared he was not able to buy it, and hence it was not necessary to explain what it was. Crain naturally assumed that what Pepper meant was his interest as a partner, and if Pepper was an educated and trained business man, his explanation would, perhaps, appear less plausible, but we are not prepared to say ‘that, coming from such a man as he appears to be — an inexperienced country farmer, with limited education — his explanation is not unreasonable.

Walter Head testified to a rather long statement which he heard Pepper make to his (Head’s) father, to the effect that he (Pepper) had put $1,000.00 and 13 bales of cotton “in there” (in the Mercantile Co.), and it looked like he was going to lose it all, and that his boy, L. C. Pepper, could have managed the business better than E. J. Pepper had done. Z. Z. Pepper denies the statement about putting $1,000.00 and 13 bales of cotton in the business. He does not remember discussing the matter, but admits that he talked to Head’s father, and that if he did say anything about the money and cotton, he meant that the business owed him that much, and not that he had put that much in the business as a partner. ■

George Walker says he heard Z. Z. Pepper say that he had to take $330.00 out of the business to pay off a judgment. (This was the judgment referred to above.) Pepper denies making such a statement. .The trial judge believed Pepper, and disbelieved Walker. He knew both parties, and was in a better position than we are to weigh their statements.

A. J. Crain says that Pepper, in discussing the business of Pepper Mercantile Co. on one occasion, referred to it as “our business”. Pepper denies this. ,

Bailey Puckett was placed on the stand by plaintiff’s counsel to testify that Z. Z. Pepper employed him to clerk in the store of the defendant concern, and this is, in a modified sense, true. It appears to have happened this way: One afternoon, Pepper was in the store, and his nephew (who was undoubtedly the ostensible head and manager of the business), was in the yard, buying some cotton. Some one, or perhaps several people, wanted to be waited on, and he asked Puckett to attend to them. At the close of the day, Puckett asked if they would need him any longer. This question was addressed to E. J. Pepper, and the latter asked Z. Z. Pepper if he thought they would need him (Puckett) any longer, and Z. Z. Pepper replied that “they” could use him all right. A little later on, he says Z. Z. Pepper told him he would have to see Elisha (E. J. Pepper) and “talked like it was up to Elisha”.

It is not surprising that the old man to whom the business owed so much, and who, besides, seems to have been deeply interested in the success of his nephew, should have shown some interest in the management of the concern. Indeed, it would not have been surprising, under the circumstances, if he had exercised more authority than any one testified that he ever, at any time, did.

It is an ancient rule of evidence of the Civil and Common Law that: “Extra-judicial declarations are the weakest species of evidence known to the law.” See numerous cases cited in La. Digest, Vol. 3, pages 167 and 165.

To hold Z. Z. Pepper liable in this case would he to convict him, morally, at least, of being a swindler and a perjurer. He cannot be honestly mistaken, while the witnesses referred to may be.

The trial judge, in his written opinion, said:

“Knowing Mr. Pepper as I do, having, had legal dealings with him for the past fifteen years, both for and against him, I am convinced that his honor and integrity are of such a high standard that he would not wilfully make a mis-statement of facts even to save the earnings of a life of the hardest kind of work.”

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: PORTER, J.

license: Public Domain

text:
    No. 1866.
    Second Circuit Appeal.
    FRANK F. JETER v. CADDO TRANSFER & WAREHOUSE CO.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest, Automobiles — Par. 4.
    In this case an automobile truck passed a mule team going in the same direction on a narrow bridge and came so close to the team that it struck and killed one of the mules. The driver of the truck was negligent and there was judgment for the plaintiff.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a damage suit for the value of a mule struck by a truck.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for plaintiff and appellee.
    J. S. Atkinson and Alex F. Smith, of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

This is a suit in damages for the value of a mule belonging to plaintiff, which was struck by a truck belonging to the defendant company, and being driven at the time by one of its employees, and so badly injured that it had to be killed. From a judgment in favor of the plaintiff for $200.0Q, the defendant has appealed.

The accident happened on a bridge on the Shreveport-Mooringsport road. The plaintiff’s employee was driving a two-mule wagon across the bridge, and defendant’s employee driving a large truck, or furniture van, undertook to pass the mule team, when one of the wheels of the truck ran over the hind foot of the mule next to it, and crushed.it off.

There are two versions of how the accident happened. Plaintiff’s driver says that as the truck passed him, going at a pretty rapid clip, the front corner struck the mule on the shoulder and knocked him around so that his left hind foot came in contact with the hind wheel of the truck. The driver of the truck, on the other hand, after the front part of it passed the team, was not in a position to see how the accident occurred. He says,- however, that after it happened, he went back, and the driver of the team told him that as the truck came opposite to the mules, the one nearest the rail of the bridge on the right hand side became frightened and shoved the injured animal towards the truck. Plaintiff’s driver denies making any such statement, and, in addition to the unreasonableness of it (it is difficult to believe that a frightened mule would push its mate toward, instead of pulling away from, the object that frightened it), the version of plaintiff’s driver is corroborated by evidence which tends to show that the injured mule was bruised on the shoulder.

Moreover, if the trial judge, who did not hand down any written opinion, had held that, under the circumstances, which we will not take time to detail, it was negligence in the defendant’s driver to attempt to pass the team on the bridge, we should not feel warranted in differing from him.

The question presented is at best one of fact, and we think the- evidence supports the finding of the trial judge on all features of the case, and this applies to the value of the mule. The plaintiff testified that it was worth $250.00. There is some expert testimony that, on account of the age of the mule — it was ten years old — it was not worth more than $150.00. The judgment was for $200.00, and it is affirmed.


text:
    No. 1886.
    Second Circuit Appeal.
    ELSTON, PRINCE & McDADE, INC., v. ECONOMY CASH STORE, ET AL. C. E. SANDERS, Intervenor and Third Opponent.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 153
    The doctrine that parol testimony as to extra-judicial declarations by parties is the weakest species of evidence is universally recognized by the courts
    2. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial judge on matter of fact not being erroneous is affirmed
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge
    This is a suit on an open account against a partnership.
    R. L. Williams filed an exception of misjoinder which was sustained.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    W. M. Phillips, of Shreveport, attorney for R. L. Williams and C. E. Sanders.
    L. P. Garrot, of Shreveport, attorney curator ad hoc, to represent H. M. Williams doing business as Economy Cash Store.
   PORTER, J.

The plaintiff sued the defendant — a commercial concern' — on an open account for $447.83, and legal interest thereon from June 1, 1922. The petition alleged that the defendant concern was a commercial partnership, composed of R. L. Williams, IT. M. Williams and Mrs. Luella C. Williams, and prayed for judgment, in solido, against all of them.

R. L. Williams filed an exception of misjoinder, in which he alleged that he was not, and never had been, a partner in said business. The exception was tried and sustained, and from that judgment the plaintiffs appealed. The above ruling on the exception presents the sole issue before us.

The facts, as shown by the testimony, are, briefly stated, as follows:

In January or February, 1922, the ex-ceptor purchased the business, and conducted it for some six weeks or two months, and then sold it to H. M. Williams, after which time, he says, he had no connection with the business, and no interest in it, except to collect the money due him by H. M. Williams.

The learned District Judge handed down a written opinion in which he discusses the testimony of all of the witnesses, and concludes that it is insufficient to show that R. L. Williams’ was ever a partner in the concern. The testimony on behalf of the plaintiffs consists principally of statements by several witnesses that after the date of the sale of the business by the exceptor, he occasionally came to the store and remained for short periods of time, and that he would occasionally sell some trifling article to a customer. It is shown by some of these witnesses that R. L. Williams took no part, in the management of the store, did not employ the employee, or purchase any goods, and did not' even know the combination of the safe. One witness, Mrs. Holman, the bookkeeper, inferred from certain statements — which she was unable to detail — that said Williams was interested in the business.

The only real tangible evidence is a statement by one of the plaintiffs to the effect that R. L. Williams, after the suit was filed, and after the store was closed by the attachment which was coupled with the suit, specifically admitted that he had an interest as a partner in the business-. The exceptor denies making any such statement. He was a conductor on one of the railroads running into Shreveport, and lived about two blocks from the store. When he was at home, he sometimes went to the store. He was interested in the success of the business, because H. M. Williams owed him a considerable sum because of his endorsement of a note given by the former, the purpose of which was to buy a bankrupt stock of goods to be placed in the store. After his sale of the business to H. M. Williams, the exceptor purchased the store building, and after it was closed by the attachment, he was interested in having the matter settled, so that he could use the building.’ He therefore tried to effect a settlement with the creditors of H. M. Williams.

The District Judge reviewed the testimony of all the witnesses more fully than we have done.

The doctrine that parol testimony as to extra-judicial declarations by parties Is the weakest species of evidence is universally recognized by the courts. See numerous cases cited in the La. Digest, pages 167 and 168, Yol. III.

Counsel for plaintiffs, in their brief (we do not recall that the matter was referred to in their argument before the court) invoke the provisions of Act 114 of 1912, relative to fraudulent sales of goods in bulk. We are unable to pereeeive how this law can be pertinent to a suit against an alleged commercial partnership, which contains no reference whatever to the sale by R. L. Williams to H. M. Williams.

The District Judge said that a part of the goods were purchased while R. L. Williams was the' owner of the store, - but that as it was impossible to determine from the evidence what that portion was, and furthermore, that as the suit was against R. L. Williams as a partner, it was not possible to give plaintiff judgment for any amount. Plaintiff’s rights, however, were fully reserved in the judgment on this point.

The case turns on a question of fact, and ■ we are unable to say that the trial judge erred in the conclusion reached by him.

The judgment is affirmed.


text:
    No. 2081.
    Second Circuit Appeal.
    H. C. WALSWORTH v. JACKSON PARISH SCHOOL BOARD
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor)
    I. Louisiana Digest, Sales — Par. 44, 45, 60; Education — Par. 6.
    Where a school board, acting under Section 9 of Act 120 of 1916, ordered an election which voted a special tax to re-roof and otherwise repair the, school building, the person receiving the order for the material understood that payment was to be made by certificates of indebtedness based upon the tax or by money realized -from the sale of them.
    2. Louisiana Digest, Sales — Par. 150.
    Where the seller of roofing material understood that payment by the school board was to be made by certificates of indebtedness, he breached his contract by refusing to deliver until cash was received although the certificates were offered in payment.
    Appeal from the Parish of Jackson, Hon. Oglesby, Judge.
    This is a suit to recover the purchase price of materials which had not been delivered.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Moss S. Peters of Winnfield, La., attorney for plaintiff.
    Wm. J. Hammond, of Jonesboro, La., attorney for defendant.
   PORTER, J.

By this suit, the plaintiff seeks to recover judgment for $497.10, and interest, against the School Board of Jackson Parish. Article Two of plaintiff’s petition is as follows:

“Western School District, situated and located within the Parish of Jackson, by authority of the Jackson Parish School Board, and in the manner authorized by law, voted a special tax of two (2) mills on the dollar for a period of two (2) years to be used in re-roofing and otherwise repairing the school building situated in said Western School District.”

After promulgation of the vote, the plain: tiff submitted a bid to furnish the material for said roof, which was accepted by the Board. Plaintiff is not a dealer in roofing material, but is the agent of a concern which sells it, and he, we presume, gets a commission on what he sells. The material was shipped with a draft attached to the bill of lading, and when it came, plaintiff paid the draft and took possession of the material.

The plaintiff refused to deliver the material to the School Board, or to a committee of its members which had charge of the matter, unless he was paid in cash, or unless the committee would secure the amount by a note signed by a certain number of citizens.

It appears that certificates had been issued against the tax levied as above stated, and the committee tried to get the local Bank to cash the certificate in order to get the money to pay plaintiff, but was unsuccessful.

After a delay of several months, during which unsuccessful efforts to realize on the certificates were made by the School Board, and the plaintiff still refusing to deliver the material except upon the terms stated, the Board made a contract with another party to furnish the material and do the work, and accept as the price thereof the said certificates.

The testimony shows that there was urgent need for a new roof on the building. It is not alleged, nor is there any' contention, that the Board was guilty of fault in failing to do everything that was necessary to secure cash for the certificates. The sole theory upon which the suit is predicated is that there was a completed contract of sale between the plaintiff and the defendant, and that defendant violated the contract by refusing to accept the thing sold and paying the price in cash.

If it were an ordinary contract, the plaintiff’s position would be a strong one, but there are peculiar features in the contract which take it out of the general class of sales. It is not contended that the Board agreed to pay cash for the material. The plaintiff, when he ordered the material, was fully aware of the fact that the tax had been voted in a particular locality of the Parish for the purpose of raising funds for the repair of the school building in question, and he must have known that the reason for the election was because it was not deemed possible or expedient by the school authorities to pay the price out of the general fund. And we think that these facts ought to be considered in connection with the contract and as a part of it.

The plaintiff testified, in part, as follows:

Q. “Mr. Walsworth, when you state this contract was made with you, you knew that the school hoard’s means of payment was from the collection of taxes that had béen Voted in the Western School District?”
A. “I knew that was all beside the sale of the certificates.”
Q. “You knew that the taxes would be levied and collected for two consecutive years?”
A. “Yes sir.” '

In another place, he was asked to detail the contract, and answered:

“They wanted me to get Mr. Stinson to cover it, and I sold them the roofing at $6.20 a square, and they carried Mr. Stinson there to measure it and get the amount of the material, and he came back and gave it to me, and Mr. Odom authorized me to make the order with the understanding that they were to place the certificates and get the cash and pay me when the roofing got here.”

It is true that plaintiff says in another part of his testimony that the understanding was that “they were to pay cash for the roofing when it came”, but in view of his testimony first above quoted, as well as of the testimony as a whole, it is clear that his last quoted statement is a mere conclusion of his.

Mr. McBride, a member of the School Board and of the committee which had this particular matter in hand, testifies as a witness for the plaintiff as follows:

Q. “Mr. McBride, how did you tell Mr. Walsworth that the Board would arrange to pay for this roofing and work?”
A. “We would pay for it from the proceeds of this tax and the Board had some certificates issued that we expected to sell.”

It is shown, we think, beyond any doubt, that when the order for the roofing was given, it was understood by all parties that it would be paid for by the certificates of indebtedness, based upon the tax, or by the money realized from a sale of them.

Mr. Odom, Parish Superintendent, and a member. of the committee with which the plaintiff dealt, testifies that he supposed the plaintiff would take the certificates, and that since he had been in office, the people that the Board had contracted with would take certificates and sell them themselves.

In calling the election and in voting the special taxes, for the repair of the building in question, the School Board and the people of that District availed themselves of the right granted by the last clause of Section 9 of Act 120 of 1916, which is as follows:

“Communities deserving better facilities and longer sessions than can be provided by a distribution of the general funds giving equal sessions to all schools, shall secure the same by voting special taxes, or obtaining additional funds from other sources than the current or general school funds.”

The action of the Board in the premises was a declaration that the amount necessary to repair the building could not be taken from the general fund, and this declaration was binding upon the public, and particularly upon the plaintiff, who had both constructive and actual knowledge of the fact. It was notice to all persons who had dealt with the Board in connection with the matter, that they must rely exclusively upon the special tax for their compensation. We repeat that there is no suggestion of any fault on the part of the Board in connection with the matter. It did nothing that it ought not to have done and left nothing undone that it ought to have done.

The whole theory upon which the demand is predicated, as shown by the brief of plaintiff’s able counsel, is that the Board violated the contract of sale when it failed to pay in cash the price of the roofing when the plaintiff was ready to deliver it.

It is true, as a general rule, that where one orders a thing for another at a price agreed upon, a cash price will be inferred, and the failure to pay, when the thing is ready to be delivered, will constitute a violation of the contract. But when it is understood by both parties, as it was in *this case, that the price was to be paid out of a certain fund, created in a certain manner — and particularly when the fund is created in accordance with a specific law — the case is taken out of the general rule.

For this reason, We do not think that the Articles of the Code and the decisions cited by counsel for plaintiff have any application.

The plaintiff has — or had at the time the case was tried — the material in his possession. We gather from the evidence that it is standard material, and, with the exception, perhaps, of a few pieces of special size or shape, suitable for roofing generally, and can be sold for approximately as much as it cost.

The judgment appealed from is therefore reversed and set aside, and the demand of plaintiff is rejected at his cost.


text:
    No. 2082.
    Second Circuit Appeal.
    ALICE FERGUSON v. CADY-McFARLAND GRAVEL COMPANY.
    (October 17, 1924, Opinion and Decree.)
    (See 156 La. 871, 101 South.*248.)

      (Syllabus by the Editor)
    1. Louisiana Digest, Master and Servant— Par. 154, 158. 160.
    Where one is killed by a fellow employee while working for the same company in building or repairing a railroad, the widow is entitled to compensation for herself and minor children under Employers’ Liability Act No. 20 of a 1914, Section 8, Subsection 2 (c), as amended by Act 247 of 1920.
    (The recent amendment is Act No. 216 of 1924. Editor’s note.)
    Appeal from the Parish of Rapides, Hon. Leven L. Hooe, Judge.
    This is a suit brought by a widow for compensation under the Employers’ Liability Act No. 20 of 1914.
    There was an- exception no cause of action filed by defendant which was sustained and plaintiff appealed.
    Judgment reversed.
    George J. Ginsberg, of Alexandria, attorney for plaintiff and appellant.
    Blackman & Overton, of Alexandria, attorneys for defendant and appellee.
   PORTER, J.

The plaintiff’s husband was killed by a fellow employee while working for the defendant company in building or repairing a railroad or switch track owned by the company, and his widow brought suit under the Employers’ Liability Act for compensation' for herself and minor children.

The defendant company filed an exception, setting up that the.petition failed to disclose a cause of action. This exception was sustained, and plaintiff appealed to this court.

As the point involved was an important and novel one, we certified the question to the Supreme Court, and that tribunal answered that, the petition did disclose a cause of action.

The opinion of the Court has not yet been published, but Will be, we presume, in Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 South. 248.

It is therefore ordered and decreed thát the judgment appealed from be reversed and set aside; that the exception of no. cause of action be over-ruled, and that .this case be remanded to- the District Court for trial, according to law. The cost of this appeal is taxed against the defendant company.


author: CROW, J.

text:
    No. 2115.
    Second Circuit Appeal.
    McDonald & Foster v. Farmers’ Gin Co., Inc.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest, Damages — Par. 74.
    Where the warehouseman weighs cotton negligently, causing the purchaser to pay for a larger. weight than delivered the warehouseman is liable for the excess- paid the seller.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Fifth District Court of Jackson, Hon. J. E.- Reynolds, Judge.
    This is a suit for damages for inaccurate weighing of cotton.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
   CROW, J.

Plaintiff, in the usual course of its business as a merchant and cotton buyer, purchased thirty-nine bales of cotton from the wagons of farmers in the town of Jonesboro, and paid for the cotton according to the weights of the defendant’s scales. Defendant is a corporation, doing business as ginners, warehousemen, storers and weighers of cotton, for the public. Plaintiff also stored the cotton with defendant,- and paid for the weighing and storage thereof. . ' •

Defendant’s answer makes the defense — (1) That it is only required to exercise ordinary care in keeping and caring for property deposited with it, and that it me.t that requirement in the instant case; (2) That it did not guarantee, to the knowledge of plaintiff, the weights of cotton; and, (3) That if the cotton lost in weight, it was due to natural shrinkage, as the cotton was damp or green when weighed by it.

Plaintiff complained that, through the negligence and carelessness of defendant’s weigher, the small balance pea, or poise, attached to and near the end of the scales beam, became detached or lost, thereby causing the scales to over-weigh the cotton. Plaintiff claims that it later sold the cotton to one R. J. Cobb, and on its being reweighed on accurate scales, there was a loss in weight of 524 pounds of cotton. It further contends that there was a shortage in weight of 397 pounds of cotton which he sold at 27.5 cents per pound, and a shortage of 127 pounds of cotton, which he sold at 27% cents per pound, thereby entailing a total loss to plaintiff- of $142.00.

The ease was tried in the District Court, and there was judgment in favor of plaintiff for $63.29, being the value of 187 pounds of cotton at 27% cents, and 54 pounds at 27% cents, with 5% per annum on the total amount of the judgment from date thereof. From the judgment, defendant has appealed, and plaintiff has answered the appeal, and asks that the judgment be increased to the amount demanded in the original petition.

OPINION.

The trial' judge seems to have allowed plaintiff judgment for a loss of an average of six pounds a bale, caused by reason of the balance pea, or poise, being detached when the cotton was weighed. He also appears to have based judgment largely on the testimony of A. D. Jones, manager of defendant company, that the small pea just balanced the scales with the cotton hooks suspended from the hooks of the scales, and that those hooks weighed six pounds.

We think from a careful reading of the testimony in the case that the judgment of the lower Court was amply warranted. Although defendant contends that the balance pea was on the scales when the cotton in question was weighed, it looks rather singular that the pea was found to be off the scales by some one not connected with the weighing of the cotton by defendant, and the weigher’s attention having to be called to that fact. Too, as soon as the pea was replaced on the scales and some of the same cotton re-weighed by those scales within a very few days of the time when it was first weighed, it showed, according to the testimony, a loss of some ten or twelve pounds per bale. When the cotton was weighed at the Ruston Compress a few days later, it lost an average of approximately fifteen pounds per bale from the original weights of the defendant company. The Superintendent of the Rust on. Compress testifies that his scales are accurate and tested regularly. On that point he is not contradicted directly by anyone.

The contention that defendant is not liable because it did not guarantee the weights, is untenable. Defendant was a bailee for hire, and, as such, liable for any loss or damage caused by its failure to exercise ordinary caution and care in weighing, storing, or otherwise handling the cotton as a depositary. There was an implied contract for bailment when the cotton was entrusted by plaintiff to defendant for weighing and storing, and defendant, cannot escape liability on the plea that it did not guarantee the. weights. It was certainly negligence on the part of defendant to permit as conspicuous an object as the balance pea, or poise, on the beam of the scales ¿o become detached or lost. This is particularly true when we take into consideration that the cotton was weighed on different days.

We think clearly there was a minimum loss of six pounds per bale, caused by the pea being removed, even taking into count the fact that there might have been some loss from natural causes, such as drying and shrinkage of the cotton. We are inclined. to think the judgment should be amended; but because of the lack of definite and certain testimony that more than six pounds per bale was lost due to the inaccuracy of defendant’s scales by reason of the detached pea, we shall merely affirm the judgment.

For the reasons assigned, the judgment is affirmed at the cost of appellant.


text:
    No. 2133.
    Second Circuit Appeal.
    VIRGIN M. BRYANT v. THE TEXAS PIPE LINE COMPANY.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    Where employee’s leg and knee are injured causing temporary disability from doing work of a reasonable character; held, Section 8, Subsection 1 (d), of Act 20 of 1914, the last paragraph of which reads: “The permanent total loss of the use of a member shall be equivalent to the amputation of the member,” does not apply, but Section 8, Subsection 1 (a), of Act 20 of 1914 does apply.
    2. Louisiana Digest — Master and Servant— Par. 160 (a).
    No one should say to injured employee that he should submit to an operation to remove his leg.
    Appeal from the First District Court, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit under the Employers’ Liability Act No. 2Ó of 1914 to recover compensation for injuries to an employee.
    Judgment for plaintiff and defendant^ appealed.
    Judgment affirmed.
    Julius T. Long of Shreveport, attorney for plaintiff and appellee.
    J. S. Atkinson and Alex Smith of Shreveport, attorneys for defendant and appellant.
   CROW, J.

This ease involves only the construction of the last paragraph of Subsection (d) of Section 8 (1) of Act No. 20 of 1914 (Workmen’s Compensation Act), as amended by Act No. 43 of 1922, which reads as follows:

“The permanent total loss of the use of a member shall be equivalent to the amputation of the member.”

The plaintiff’s injury is a severe and extremely painful one to his left leg and knee, which temporarily totally disabled him from doing any work of a reasonable character, if, indeed, it did not render him permanently unable to do work such as he was accustomed and fitted to do.

The contention of defendant is that, under. the provision of the law as above quoted, plaintiff should not, in any event, be permitted to recover more than is allowed one for the amputation of a leg, which, under Sub-section (d) of Section 8 (1) is 60 per centum of wages during a period of 175 weeks. The further contention is that it would be inequitable to allow plaintiff 60 per centum of his wages for a possible period of 300 weeks when if his leg had been amputated, he could have recovered the same per centum of his wages for a period of only 175 weeks.

The Judge of the District Court found that plaintiff was temporarily totally disabled, and allowed him compensation under Subsection 1 (a) of Section 8 of Act 43 of 1922, at the rate of 60 per centum of his wages during the period of his disability, not, however, beyond 300 weeks.

OPINION

There is no question, from the evidence, but that plaintiff is totally disabled, at least temporarily, from doing work of a reasonable character; but, says defendant, the Judge should have limited the duration of the compensation to 275 weeks, as for loss of leg by amputation, or the equivalent thereof.

Clearly, before Act 43 of 1922 was enacted,. the judgment is not only in accord with the .statute, but is absolutely in consonance with the decisions of our Supreme Court. (See Mack vs. Legeal, 144 La. 1017, 81 South. 694; Durrett vs. Woods, 155 La. 534, 99 South. 430.)

We do not think the position of defendant is tenable. While defendant may eventually have to pay more to plaintiff than it would have to pay if there was a total loss of the use of the leg or if it had been amputated, it may have to pay him compensation for a period of only 52 weeks; for, under the judgment, the defendant can come into Court at the end of one year from the date the judgment becomes operative, and have it modified or rendered inoperative further. Hence, as against the possibility of having to pay compensation during a period of 300 weeks, there is balanced the hope and the probability that the payments will continue for a period of only 52 weeks, or any number of weeks less than that allowed for total loss of the use of a leg or 'the amputation thereof.

Again, the above quoted amendment of the Act reads: “The permanent total loss of the use of a member shall be equivalent to the amputation thereof.” It is not evident in the case at bar that there is a “permanent total loss of the use of” plaintiff’s leg. There is certainly entertained a strong hope that the condition of the injured member may be not only alleviated, but partially, if not totally,- relieved. No one should say to plaintiff that he must subject himself to an operation that will entirely remove his leg. Then why, just to possibly savé a small payment to plaintiff, should he be compelled to go through life with only one leg, when he is certainly in hope of being partially, if not totally, cured of his suffering and injury without an amputation of the leg? Too, if operated on for removal of the member, he runs the risk of losing his life.

We do not think the above quoted amendment was enacted to cover a case and a condition such as this one presents.

The judgment is correct, and it is affirmed, at the cost of appellant.

There has been filed in this case an agreement by counsel for both sides that the appeal be dismissed at the cost of appellant.

It is therefore ordered that the appeal be dismissed at appellant’s cost.


text:
    No. 2139.
    Second Circuit Appeal.
    THE BRENARD MFG. CO. v. I. J. ALLEN.
    (October 17, 1924, Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Fraud—Par. 1, 2; Sales — Par. 32.
    Where one, the agent of another, is authorized to sign promissory notes made in blank when he is notified that merchandise was to be shipped, fraudulently signed notes without notification and merchandise is returned at the expense of shipper. Held, that the fraud vitiated the contract and consignee was right to return the merchandise and refuse to pay the notes. (Civil Code, Arts. 1819, 1924, 1847.. Editor’s note.)
    2. Louisiana Digest — Appeal—Par. 625.
    Where the issue is one of fact, the appellate court gives great weight to the decision of the trial judge unless clearly erroneous.
    Appeal from • the Fifth District Court, Parish of Jackson, Hon. J. E. Reynolds, Judge.
    This is a suit on promissory notes fraudulently signed by an agent.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiff, appellant.
    E. L. Walker, of Ruston, and Cas Moss, of Winnfield, attorneys for defendant, appellee.
   CROW, J.

This is a suit on six promissory notes, aggregating, in principal, the sum of $422.00, which are alleged to have been signed by the defendant. The defense is that the notes were only signed by deendant in blank and given to M. O. Walker, the agent and representative of plaintiff company, to be filled out, dated and used only when defendant should advise plaintiff that he would order certain merchandise to he sent out to him. The merchandise was in the shape of three musical instruments, called Claxtonolas, which defendant claimed were not to be shipped out to him until he ordered them shipped. He further alleges that the said agent practiced fraud on him by afterwards dating and filling out the notes, without defendant’s knowledge or consent, and delivering them to his Company, the plaintiff. He also says he signed a contract simultaneously with the signing in blank of the notes, on which he had said agent to write’ that the order was not to be filled or shipped until the plaintiff was so notified by defendant. He charged fraud on the agent’s part in filling out, dating, and sending in the notes and blank contract. He also says in his testimony that he did not sign the alleged contract attached to the depositions of plaintiff’s manager, and in that denial he is pretty strongly corroborated by the apparent disparity in the signatures on the notes and that on the alleged contract. He is also corroborated by the cashier of the Bamk where defendant had been doing business a number of years, which witness found some difference in the said signatures.

There was judgment in the District Court, rejecting plaintiff’s demands, and it has appealed.

OPINION.

Since the sole issue was one mainly of fact, we are constrained to give great weight to the decision of the trial judge. From a careful reading of the entire record, we think the judgment is correct,- and should be affirmed.

In the first place, the defendant’s contention is strengthened by the fact that there seems to be a difference in the kind of ink used in filling out the dates, etc., of the notes, and that used by defendant in signing the notes. Immediately on arrival of the goods at the station of defendant, he repudiated the shipment, and returned the goods at the expense of plaintiff. He also promptly notified plaintiff in writing that he made no order for the goods, and had not notified. plaintiff to ship the goods. They were returned to plaintiff, which has looked after them and has paid all expenses incidental to their transportation and detention by the railway or express company.

Defendant is also corroborated in his testimony as to the signing of -the notes by a man named Richardson, wh,o was working for him, and present in ■ defendant’s store when the notes and contract were signed in blank by the defendant.

It was certainly the grossest sort of fraud for the agent to date and fill out the notes contrary to his agreement with defendant, and those fraudulent practices bore on a material part of the contract.

A singular fact, and one which seems, conclusive in this case, is that the only person by whom plaintiff could prove the verity and reality of the notes and contract and by whom the charges of fraud could have been denied or possibly disproved, was not produced by plaintiff at the trial, neither was his testimony sought to be taken by commission. That person, M. O. Walker, the agent who took the notes, was still in the employ of plaintiff when this case was tried. 'The only and flimsy excuse offered by plaintiff for not obtaining its agent’s testimony, was that he was traveling about from place to place, and plaintiff might not locate him easily. This fragile excuse is offered, although defendant and his attorney had written plaintiff several letters long before the suit was filed in which it was specifically charged that the transaction was induced and carried out by means of fraud on the part of said agent.- Plaintiff was fully apprised in these letters that defendant would resist payment of the notes to the end, on account of the fraud on the part of said agent, and the specific acts of such fraud ■were carefully put up to plaintiff many, many months before this suit was instituted on the notes. The manager of plaintiff admits in his testimony that no special effort was made to secure the testimony of its said agent.

We think there was such fraud practiced as entirely violated the alleged contract and the notes (signed in blank) given in pursuance thereof.

The judgment is affirmed, at the cost of plaintiff.


author: ODOM, J.

text:
    No. 1777.
    Second Circuit Appeal.
    FRANK M. CHANCE v. MISS LIZZIE HOLLINGSWORTH. Appellant.
    (November 21, 1924, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Taxation—Par. 281,
    Notice to the tax debtor is essential to the validity of a tax sale under section 51 of Act 170 of 1898.
    2. Louisiana Digest — Taxation—Par. 281, 282, 285.
    Where the evidence shows that the registered notice mailed to the tax debtor omitted a notice of taxes due on part of the property; it will not be considered as evidence of notice of taxes due on that property omitted, nor evidence of reasonable diligence takeD to notify the tax debtor.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit to set aside a pretended tax sale.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lewell C. Butler of Shreveport, attorney for plaintiff and appellee.
    Marion K. Smith, attorney for defendant and appellant.
   ODOM, J.

Plaintiff alleges that he is the owner of Lot 10 of Block 10, University Heights Subdivision, City of Shreveport, La., and that on June 28th, 1919, the Sheriff and Tax Collector of Caddo Parish pretended to sell an undivided interest in said property to Miss Lizzie Hollingsworth, defendant, and that on July 14th, 1919, the Sheriff and Tax Collector executed a pretended deed to the purchaser, said deed being duly recorded in the recorder’s office of Caddo Parish, La.

He especially alleges that prior to the pretended sale of said property at tax sale, the Sheriff and ex-officio Tax Collector failed and neglected to comply with the provisions of Section 51 of Act 170 of 1898, in that he failed to give the notice that any taxes were due, as is specially required, and that because of such failure to give notice as required by law before making the sale, the said tax sale is null and void.

The tax purchaser defends the suit on the grounds “that the provisions of Act 170 of 1898, and particularly Section 51 thereof, were strictly complied with.”

The sole issue involved in this case has been correctly stated by defendant in his brief, as follows:

“Did the tax collector comply with all the legal requisites for giving notice of delinquency to the tax debtor, plaintiff herein, before selling his property? If he did not, the tax sale must be held invalid.”

OPINION

Section SO of Act 170 of 1898, provides that as soon as possible after January first in each year, the tax collector shall address to each tax payer who has not paid his taxes on immovable property, written or printed notice that his taxes on immovable property must be paid within twenty days after service or mailing said notice, or that said property will be sold, according to law.

Section 51 of said Act provides that “in the country parishes, this notice shall be sent by registered mail.”

Notice to the tax debtor is essential to the validity of a tax sale. No citation of authority is needed on this point. Therefore, our only inquiry in this case is whether the Sheriff and ex-officio Tax Collector, the officer whose duty it is to collect parish and state taxes, complied with the requisites of the law with reference to giving notice of delinquency before selling the property of the tax debtor.

It must be borne in mind that actual notice to the tax debtor is not necessary, because in some instances, as in this one, actual notice is impossible; but the law prescribes the method to be pursued by the tax collector in giving notice, and unless that method is pursued, a sale of property for unpaid taxes is a nullity. As stated, actual notice is not required, but in order that the sale be valid, it is necessary that such proceedings be complied with which create a legal presumption that that notice was received. It is presumed that a letter, properly addressed to a person at his correct post office address, and deposited in the United States mail. That means, of course, that a notice of delinquency placed in an envelope, properly addressed, with correct office given, shall be deposited in the United States mail.

In this case, there was no actual notice of delinquiney to the tax debtor. He was in France, with the American Expeditionary forces in the first half of the year. He reached Shreveport on July 1st, just two days after the property in question was sold by the Tax Collector.

We find that on ' April 15th, 1919, a printed notice to Frank M. Chance setting out that he was due taxes amounting to $2.09 on property valued at $200.00, was mailed at Shreveport, and addressed to him at Shreveport, La. This notice was not delivered and was returned to the Sheriff and Tax Collector, and was opened and filed in evidence on the trial of this case. Plaintiff contends that this notice addressed to the tax debtor at Shreveport, La., was not in compliance with law, .for the reason that Frank M. Chance, the tax debtor, lived at Blanchard, Lá., about 12 miles from Shreveport, while on the contrary, the defendant, the tax purchaser contends that this notice was sufficient, because the tax debtor lived in Shreveport. The tax debtor did at one time live in Shreveport. He testified that he lived in this city from 1908 until 1917. His address while residing in the City was, at one time, 319 Crockett Street, and later, at 822 Snow Street. But he says that in 1917, he left the City and moved to Blanchard, where his father resides, and began at once to live with his father; that he enlisted in the service of his country while residing at Blanchard; that Blanchard was his post office address at all times after he left Shreveport in 1917. His testimony is corroborated on that point by that- of his father, who testified substantially as did the son. The testimony on this point, that is on the question of Frank M. Chance’s removal from Shreveport fn 1917 to Blanchard to reside, is not contradicted. We must, therefore, accept it as a fact he did establish his residence at Blanchard, as they say he did.

Mr. Flournoy, a deputy tax collector, testified that on the assessment roll for the year 1917, the post office address of Prank M. Chance was given as Shreveport, La., and he says “no address is given but Ward 4 in the City of Shreveport.” And he says further that his address on the assessment rolls for 1920 is given at 319 Crockett Street, City of Shreveport.

The defendant stresses these facts in support of her theory that the tax debtor resided in Shreveport continuously and not at Blanchard.

We see nothing in the testimony of Mr. Flournoy to contradict that of the plaintiff and his father on the question of residence. At the time the assessment for 1917 was made, plaintiff did live in Shreveport, and we are not advised as to why his address was given at Shreveport on the assessment rolls of 1920. We are not concerned with conditions which prevailed in 1917 and- 1920 but with those of 1918, the- year in which the taxes for which the property was sold were assessed, and 1919, the year in which it was sold.

Defendant cites the last mentioned facias tending to show that plaintiff’s correct address was at Shreveport in 1919, when the tax notice was sent out. We- find nothing in the record to warrant us in holding with defendant on this point. On the contrary, there is abundant evidence in the record to show not only that plaintiff lived at Blanchard, but that the tax collector’s office force was in possession of knowledge that he lived there. Mr. Howell Flournoy, who testified that he was connected with the sheriff’s office in the year 1919 was shown the tax roll for the year 1918 and was asked if the registered , notice dated April 15th, 1919, and which was offered in evidence and is attached to the. record, referred to the property in question in the City of Shreveport, and he said it did. And he was asked:

Q. “Now I will ask you to examine the tax roll for the year 1919 (1918) for Ward three (3), Caddo Parish, including Blanch ard (the stenographer adds note that it should be 1918) and state whether or not your record shows notice to have been mailed to Blanchard?”
A. “Yes, sir.”
Q. “As to what date?”
A. “April 19, 1919.”

And he- was further asked if the printed notice sent out that year did not show the amount of taxes due, and he said it did. And he was asked: “What does the record show the taxes for the Blanchard property to have amounted to for that year?”

A. “Nineteen dollars and twenty-eight cents; that is, without interest and penalties.”
Q. “What date were those táxes actually paid?”
A. “May 3, 1919.”

And with reference to this Blanchard property, he was asked: “I will ask you to state whether or not registered notice was mailed to Frank M: Chance, and what his address was?”

A. “It was shown by the roll that the registered notice was mailed to Frank M. Chance, Blanchard, La., Apr. 9, 1919.”

The uncontradicted testimony is that this notice mailed to Frank M. Chance at Blanchard, was received by his father, -C. M. Chance, who lives at Blanchard; that C. M. Chance, upon receiving this notice, wrote T. R. Hughes, Tax Collector, that his son was in France, and asking if it was necessary that the taxes be paid at once, and that Mr. Hughes answered at once that it was, and that if the taxes were not paid, the property would be sold.

C. M. Chance, on May 3, went to the tax collector’s office and announced that he wanted to pay all of Frank M. Chance’s taxes, and he was asked if he had received notice and he replied that he had, and he produced the notice which he had received through the mail, addressed to his son, at Blanchard, La. He at once paid the amount of taxes shown to be due on this notice and was given a receipt. He was asked if the notice which he received was regis tered, and he said it was not, but we think he must be mistaken about this, as Mr Flournoy says his records show that the notice was registered. But that makes no difference. 'The point is that the Tax Collector’s office sent a registered notice to Frank M. Chance, the tax debtor, at Blanchard, La., which notice was received by his father, who at once acted as the agent of the tax debtor, and paid the taxes. The defendant is therefore not in position to say that the tax debtor did not live at Blanchard. The Tax Collector must have had some information that he lived there, for he mailed the notice to him at that place. He may have gotten his information from the record, but whatever the source of his information was, the fact is that he acted upon it and sent the notice to him at Blanchard. The plaintiff testified that other communications from the Tax Collector’s office had been sent to him there, and this is not denied.

In the case of Hoyle vs. Southern Athletic Club, 48 La. Ann. 878 (884), 19 South. 937, the Court said:

“Article 210 of the Constitution, in requiring that notice should be given to the tax payer, evidently contemplated that reasonably diligent steps should be taken to make the notice effectual.”

In McCrary vs. Bradford, 130 La. 212, 57 South. 892, the syllabus which was prepared by the Court reads, in part, as follows:

“Notice to the tax debtor is essential to the validity of a tax sale, and where the Sheriff mails a letter to ‘Burnside’, which is returned with the notation that the post-office address of the tax debtor is ‘Hobard’, and the Sheriff fails to send him a notice at that place, there has been no notice, and the sale of the tax debtor’s, property is void.”

We have noticed that in the year 1918, the plaintiff had property in Shreveport, Ward 4, and property in Ward 3, Blanchard, La. Evidently, the two pieces of property were not assessed together, and there were two separate notices sent out, one showing taxes on the Blanchard property amounting to $19.38 -was mailed to the tax debtor at Blanchard, La., and the other, showing taxes due on the Shreveport property, amounting to $2.09, was mailed to him at Shreveport, La.. The one mailed to him at Shreveport, La., was unclaimed, and was returned to the Tax Collector. The one mailed to him at Blanchard was received by his father, who acted for him, brought the notice to the Tax-Collector’s office, presented it, and paid the amount of taxes shown by the notice to be due. This was on May 3rd. The notice mailed to Shreveport was dated April 15th, and, according to Mr. Swearengin, an employee of the Post Office department at Shreveport, that notice passed through his hands on April 20th, and was returned to the sender, unclaimed. Therefore, on May 3rd, when C. M. Chance appeared at the Tax Collector’s office and presented a similar notice which had been mailed to Blanchard, La., the Tax Collector had notice that the tax debtor, or some one who represented him, lived at Blanchard, and he also had notice that no one received mail addressed to him at Shreveport. He should have mailed another notice to the tax debtor at' Blanchard, La. Had he done this, we have no doubt that C. M. Chance, who had received the other one, and who had paid all .the taxes called for by that notice, would have paid the taxes on the Shreveport property. The failure of the Tax Collector to do this Was not in compliance with law. He did not avail himself of the means at hand to give the tax debtor the notice required by law. The tax debtor had no notice of delinquency. That is a fatal defect in the proceedings leading to the tax sale.

It must be borne in mind that the registered notice which was mailed to Frank M. Chance at Blanchard did not show' the amount of taxes due on the Shreveport property. It showed only the amount due on the 109 acres of land assessed to the tax debtor in Ward 3,. at Blanchard. This amount was paid, and a receipt issued therefor.

C. M. Chance, who paid the taxes for his son on May 3rd, testified, and his testimony is not disputed, that he told the Tax Collector that he wanted to pay all the taxes due by his son, Frank M. Chance He was asked if he had a notice, and he replied that he had, and produced it. He paid the full amount called for by that notice, and he says that the Tax Collector would receive no more.

There is no evidence in this case that either the tax debtor or his father, who paid the taxes for him, knew that he owed any additional sum for taxes. The father testified that he knew his son owned the property in Shreveport, but did not state that he knew he owed the additional amount. Neither the tax notice nor the tax receipt, so far as we áre informed, gave a description of the property on which the taxes were due and paid.

For the,reasons assigned, the judgment of the, lower Court is affirmed, with all costs.


author: GROW, J. REYNOLDS, J.

text:
    No. 1820.
    Second Circuit Appeal.
    JOHN F. ADAMSON v. JIMMIE BUSBEY.
    (October 31, 1924, Opinion and Decree.)
    (Jan. 12, 1925, Rehearing Granted.)
    (March 17, 1925, Opinion and Decree on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Estoppel—Par. 22, 30, 31.
    Where plaintiff, acting as secretary-treasurer for an oil company permitted a vendee of the company to take possession of a drilling rig (complete) with the breakout tongs and swivel attached, and he sat silently by and let his vendee sell it with the same accessories attached, to defendant, the plaintiff, acting as an individual, ' is estopped from claiming that the breakout tongs and swivel attached to this rig belonged to another rig which he afterwards purchased from a third party.
    2. Louisiana Digest — Sales—Par. 211.
    The defendant purchased the rig in good faith and when plaintiff purchased the other drilling rig he received only such title as his vendor had, and consequently could not claim the breakout tongs and swivel which had been transferred to defendant’s rig long before his vendor purchased the rig in question, there being no subrogation.
    Appeal from the First District Court, Parish of Caddo, T. F. Bell, Judge.
    This is a suit to recover the cost of a breakout tongs and swivel alleged to *have been sold with a drilling rig. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dickson & Denny of Shreveport, attorneys for plaintiff and appellee.
    Wilkinson, Lewis & Wilkinson of Shreveport attorneys for defendant and appellant.
   GROW, J.

In the autumn of 1921, the Louisiana Producers Oil Company was carrying on drilling operations for oil and gas in Caddo Parish with what is known as a National drilling rig and outfit, and in DeSoto Parish with what is known as a Lucy drilling rig and outfit. There are used in connection with drilling operations, such as were being carried on by the said company, certain implements, commonly called swivel and break-out tongs. The said Company, it appears, was using with the National drilling rig in Caddo P,arish, a pair of Dunns breakout tongs and a swivel. At the same time, it was using with its Lucy drilling outfit in DeSoto Parish, Lucy break-out tongs and a swivel.

It appears that during the said operations, the break-out tongs and swivel in use with the Lucy drilling outfit in DeSoto Parish became defective, and that the Dunns break-out tongs and swivel used with the National drilling rig in Caddo Parish were, by said Company, transferred to the Lucy drilling rig .in DeSoto Parish, and used on and with the latter rig. According to the record, the said break-out tongs and swivel could, with equal facility, be used on either the National rig or the Lucy, rig.

On October 11th, 1921, while the said Dunns break-out tongs and swivel were attached to and used on the Lucy drilling outfit in DeSoto Parish, the Louisiana Pro ducers Oil Company, acting by and through its Secretary-Treasurer, John P. Adamson, the plaintiff in this suit sold and delivered to one W. L. Miller, the said Lucy drilling rig, complete, “with all parts and connec tions necessary and pertaining thereto, including all tools,” etc., “in DeSoto Parish near So'dus, Louisiana.” The foregoing quotation is an excerpt from the act of sale evidencing the transaction between the said Company and the said Miller which act was passed before. James A. Denny, Notary Public, on the date aforesaid. There appear no reservations or exceptions in said act of sale.

On October 26th, 1921, the said W. L. Miller, by notarial act passed before Eva L. Duringer, Notary Public, sold and delivered to defendant, Jimmie Busbey, without reservations or exceptions, the same complete Lucy drilling rig, with all parts, connections, tools, etc.-, situated in DeSoto Parish, and which had been acquired by said Miller from the Louisiana Producers Oil Co., as foresaid.

At the time of the two aforesaid sales; and all during the interim between the dates of said sales, and even later on, the said Dunns break-out tongs and swivel, which had been transferred from the National rig in Caddo Parish and attached to and used on the Lucy drilling rig in DeSoto Parish, were still attached to and used on said latter rig. Those “necessary tools” or implements were seemingly never dissevered or detached from the Lucy drilling rig during any of the time above mentioned.

On November 12th, 1921, the Louisiana Producers Oil Co., by act of compromise, or transaction, sold, assigned and delivered to one H. R. Smith, the said National drilling rig (complete) situated in Caddo Parish. There were no reservations or exceptions stipulated in said act; neither was there any mention made therein, specifically or by description, of the Dunns breakout tongs and swivel, which were then on and attached to the Lucy rig in DeSoto Parish.

On May 22nd, 1922, the said H. R. Smith, by act of sale passed before J. E. Croom, Deputy Clerk and Ex-Officio Notary Public, sold and delivered to the plaintiff, John P. Adamson, the said Natonal drilling rig (complete) which he (Smith) had acquired from the Louisiana Producers Oil Co., of which plaintiff had been Secretary-Treasurer till November 1st 1921. No reservations or exceptions were expressed in said act of sale; nor was any reference made therein ‘to the break-out tongs, and swivel, or any mention made of those implements.

On May 22nd, 1922, John P. Adamson, the plaintiff herein instituted the present suit to recover of defendant, Jimmie Busbey, the sum of $611.50, which he alleged was the value of the said Dunns break-out tongs and swivel, which, he alleged, had been .taken possession of by defendant without right or title thereto. He further alleged that defendant converted said property to his own use and had refused to deliver possession thereof to plaintiff. The further allegation was made by plaintiff that it was impossible for him to trace said property, and that he had an opportunity to sell the rig complete, but that it was necessary to have break-out tongs and swivel before the rjg would be complete.

Defendant answered and admitted that he' had taken possession of the property in contest, but averred that he had acquired same as a part of the sale of the Lucy rig (complete), and that said break-out tongs and swivel had been attached to said latter rig long before plaintiff acquired the said National rig on January 7th, 1922, of which rig the said break-out tongs and swivel then formed no part.

The answer also contained the averment that, • since the said implements were not included in the sale and purchase of the National drilling rig, and since they were taken possession of by defendant and his vendor long before the purchase, by plaintiff of the National rig, no right of action was transferred to plaintiff by his vendor to. recover same. He also alleged that he was a purchaser of the break-out tongs and swivel, as a part of the Lucy rig (complete), in good faith, for a valuable consideration, without notice of any claim of said plaintiff.

Defendant also filed a plea of estoppel in which he averred that because plaintiff, as an officer of the Louisiana Producers Oil Go., had sold said property to W. L. Miller, on August (evidently meaning October) 11th, 1921, or permitted said Miller to take possession thereof and assume to be the owner of same, and defendant relying on the ownership of said Miller to said property, purchased same in good faith and without any notice of the claim of plaintiff, he (plaintiff) was estopped and debarred from disputing defendant’s ownership of the property in question.

The case was tried in the District Court, and there was judgment in favor of plaintiff and against defendant for. $500.00, with legal interest from Judicial demand, and the latter has appealed to this Court.

OPINION

Plaintiff bases his cause of action on the hypothesis that the break-out tongs and swivel were necessary parts of a complete rig and that, having purchased a complete National rig from H. R. Smith on January 7th 1922, and that the implements the- value of which is sued for in this action having once been connected with and attached to said National rig, he is entitled to recover of the present possessor the value of the break-out tongs and swivel, as for conversion thereof. He seems to overlook entirely the fact that he has his action against his vendor, Smith, in warranty, if the rig was not delivered to him, complete.

By the same token by which plaintiff claims he is entitled to recover of defendant the value of the implements in question, namely that they were parts of a complete rig, defendant can justly and rightly claim title to said implements; for there is no question hut that the implements, the title to which is in dispute, were attached to and formed a part of the Lucy rig (complete) when plaintiff, for the Louisiana Producers Oil Co., sold the latter rig to Miller, and when it was later so.ld by Miller to defendant. The nature and character of plaintiff’s cause of action, based as it is on the above hypothesis, is a practical admission that defendant has title to the property in question, in view of the uncontradicted facts in evidence, namely, that the break-out tongs and swivel were attached to and used on the Lucy drilling rig when Miller purchased the rig (complete) from the Louisiana Producers Oil Company, acting by and through plaintiff as Secretary-Treasurer, and when Miller sold same to defendant, and that no mention or exception in the act of sale was made of the break-out tongs and swivel. In fact, in view of the relative dates of the several sales mentioned, plaintiff, by inference and implication, concedes defendant a greater right 'to the property than he himself has. This is true for at least two reasons; (1) Because defendant was a purchaser of the implements in good faith and .without any notice that anyone claimed the property in dispute other than the one from whom he purchased it, whereas plaintiff, evidently, knew defendant or some one else was claiming title to the property, for he himself, acting as Secretary-Treasurer of the Louisiana Producers Oil Co., sold the Lucy rig (complete) to defendant’s vendor when the said break-out tongs and swivel were attached to and used on said rig; and, (2) because plaintiff’s conduct operated as a sort of equitable estoppel to his claim for the said implements from an innocent purchaser without notice, whereas there was nothing in the conduct of defendant to equitably estop him from asserting title to the property in dispute.

Plaintiff, acting as Secretary-Treasurer for the Louisiana Producers Oil Co., at least permitted his vendee, Miller, to take possession of the Lucy rig (complete) with the break-out tongs and swivel attached, and he sat silently by and let Miller later sell it; with the same accessories attached, to defendant, and then, after losing his job, or severing his connection as Secretary-Treasurer with the Louisiana Producers Oil Co., purchased the National rig situated in Caddo Parish, and proceded to enter suit against defendant for the value of the break-out tongs and swivel, which had been transferred by said Oil Company, while he was its active Secretary-Treasurer, from the National rig in Caddo Parish, and placed on and used in connection with the Lucy rig in DeSoto Parish, which plaintiff assumed to be in active charge and control of, as evidenced by the sale thereof to Miller, for the said Oil Company.

Another insuperable barrier to plaintiff’s right to recover from defendant the value of the break-out tongs and swivel for alleged conversion thereof, is the fact that the alleged conversion, if it took place at all, was committed long before plaintiff purchased the National rig in Caddo Parish, to-wit: On October 11th, .1921, or, at the latest, on October 26th, 1921. Plaintiff purchased the National rig on January 7th, 1922, some three months after Miller had bought the Lucy rig in DeSoto Parish, with' the •break-out tongs and swivel attached to said latter rig. There was no explanation made at the time of the sale by the seller to Miller that the break-out tongs and swivel on the Lucy rig were not included in the sale. The presumption is, therefore, that they were included in the sale; for, says the Civil Code, Art. 2474: “The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.”

Again, break-out tongs and swivel were shown to be necessary parts and accessories of a complete rig. It is, therefore, apparent that, unless the seller to Miller explained to the latter clearly at the time of the sale to him of the Lucy rig, that the break-out tongs and swivel attached to and then being used on said rig, were excluded from the sale (the seller being then the owner of the entire property) Miller got at least a colorable, if not an indefeasable, title to the break-out tongs and swivel, which he later conveyed to defendant, who was acting in good faith and without any notice of any adverse claims to any part of the property.

Furthermore, plaintiff, when he purchased the National rig from H. R. Smith, on January 7th, 1922, got only such title to the said rig as his vendor then had. If there was a conversion of the property in dispute, it occurred several months before plaintiff bought the National rig, situated in Caddo Parish. When the alleged conversion took place, the Louisiana Producers Oil Co. had its right of action, if any there was, to recover the said break-out tongs and swivel, or their value, for conversion thereof. That Company sold the National rig in Caddo Parish to H. R. Smith, without any subrogation to H. R. Smith of its right of action for the said tongs and swivel or their value for conversion. Neither was there any subrogation of such right of action expressed in the sale from H. R. Smith to plaintiff. It is obvious, therefore, that there was no such right transferred to Smith or by Smith to plaintiff. Clearly, no legal subrogation under the provisions of Art. 2161 of the Civil Code relating to subrogation by operation of law took place. On the other hand, there was no conventional or express subrogation stipulated in either of the sales of the National rig. We, therefore, are of the opinion that plaintiff had no. right of action to sue defendant for the recovery of the break-out tongs and swivel, or for their value as for conversion. (Scovell vs. St. Louis S. W. Ry. Co., 117 La. 459, 41 South. 723.) It must be remembered that the National rig was situated wholy in Caddo parish, while the Lucy rig was situated wholly in DeSoto parish, as shown by the several acts of sale lerein referred to. If, therefore, it is claimed by plaintiff that he bought the break-out tongs and swivel as a part of the National rig and that he would have .the right to sue for the possession or conversion thereof, the answer to that contention is that the property in dispute was situated in DeSoto Parish long before plaintiff purchased the National- rig in Caddo Parish, and at the time of his said purchase, and that no mention whatever thereof was made in the acts of sale from the Louisiana Producers Oil Company to Smith, and from Smith to plaintiff.

There is also a great deal of force in the plea of estoppel filed by defendant. Although plaintiff was not the same being or entity as the Louisiana Producers Oil Company when he, for said Company, consummated the sale of the Lucy rig (complete) to Miller, he was the apparent managing of-, ficer of that Company, and assumed to sell-the property of the concern. No point is made that plaintiff never had authority to make the sale to Miller. Plaintiff signed the act of sale, as Secretary-Treasurer of the Louisiana Producers Oil Co., and stipulated in said act of sale that he was duly authorized by a resolution of the Board of Directors of the said Company to make the sale.

The following, taken from 10 R. C. L., p. 777, seems entirely applicable here:

“Mere possession and control of personal property is not sufficient to estop the real owner from asserting his title against a person who has dealt with the one in possession on the faith of his apparent ownership. But an estoppel will arise against the real owner where he clothes the person assuming to dispose of the property with the apparent title to it, and when the person setting up the estoppel acts and parts with the value or extends credit on the faith of' such apparent ownership. Thus, where the owner of a wagon allowed another person to paint his name and business on it, the true owner has held es-topped as against a purchaser from the apparent owner. Similarly, an estoppel was declared where the owner of cattle branded them with another’s brand and sent them to such other person to be pastured for hire, and the bailee mortgaged them.”

Another excerpt taken from 24 R. C. L., p. 378, Sec. 665, is pertinent to this case, viz:

“If the owner of chattels intrusts another with the indicia of ownership, he may be estopped to assert his ownership as against a bona fide purchaser for value. The general rule, applicable to property other than negotiable securities, that the seller can convey no greater right or title than he has, is only predicable of a simple transfer from one person to another where no other element intervenes. It does not interfere with the well established principle that where the true owner holds out another, or allows him to appear, as the owner of or as having full power of disposition over the property, and innocent third persons are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the person with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the person making the transfer.”

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court herein rendered be, and it is avoided, reversed and anulled, and it is further ordered, adjudged and decreed that plaintiff’s demands be, and they are, rejected at his costs in both courts.

ON REHEARING.

REYNOLDS, J.

A rehearing was granted in this case for the reason that all of the evidence in the case, especially the evidence of Mr. Lee Howell, had not been included in the original transcript.

This missing evidence is now before” the court and we have carefully read and weighed the same in connection with the other evidence in the case.

The point upon which Mr. Lee Howell testified, is as to what was said by Mr. J. P. Adamson to. W. L. Miller and Jimmie Busbey relative to a sale previously made by the Louisiana Producers Oil Company through J. P. Adamson, secretary-treasurer, to W. L. Miller.

On this point Mr. Lee Howell testified in answer to interrogatories.

“I came into the office of the Louisiana Producers Oil Co., in the Youree Hotel Annex near the close of this conversation. I did not hear all but just a few final remarks.
“Mr. Adamson said in substance — -‘Now let us see that we all understand the deal fully — You (addressing .Mr. Miller and Mr. Busbey) that the National Swivel, a set of tongs and certain pipe does is not included in this sale, and does not belong with the Lucy rig — both Mr. Miller and Mr. Busbey agreed that they understood that feature.”

On this same point Mr. W. L. Miller also testified as a witness for plaintiff (evidence 1-2-3.)

“Q. You were present when a conversation was had where Mr. Adamson stated that the breakout tongs and this swivel didn’t go into the deal — did you hear him say words to that effect?
“A. I was there when the — the night we gave Mr. Adamson a note.
“Q. That was the night?
“A. Yes, sir.
“Q. Same night?
“A. Well, now, let me tell that like I remember it. That is the only way I know how to tell it. Mr. Adamson taken this note. He had my note for three thousand dollars and Mr. Busbey give him his note for three thousand and I swapped my note to Mr. Adamson, Mr. Busbey’s note for my note and Mr. Adamson accepted it and give me my note and I tore it up and— and then, Mr. Adamson said, ‘Does Mr. Bus-bey understand what goes? and I said, Yes. I guess he do — I went down with him and he looked at it; and that is as near as I can remember him saying anything about any tongs. I don’t think he mentioned a swivel that night. If he did, I don’t remember it.
‘‘Q. Did you hear Mr. Adamson say to you and Mr. Busbey words to that effect— ‘Let us see that we all understand the deal fully’?
“A. What is that?
“Q. ‘Now let us see that we all understand the deal fully that the National swivel and a set of Dunn breakout tongs at a certain price is not included in this sale and does not belong to the Lucy rig?”
“A. No, sir, I don’t remember that.
“Q. But how'—
“A. I remember these words when Mr. Adamson — he didn’t want Mr. Howell or anybody to know that we had made this deal and he said, ‘Does Mr. Busbey understand . what goes down there and what don’t?’ I think that is the exact words he used, because if Mr. Adamson remembers, he said he didn’t want Mr. Howell to know we had closed this up.
“Q. Mr. Howell had come in there?
“A. Mr. Howell was in the office sitting down when I went in there. Mr. Adamson met me up about half way to his desk and shook hands and I said, I have closed up that deal, and he said, ‘All right — all right, and he didn’t want Mr. Howell to know what it was; and that is the conversation that went on as near as I can repeat it off hand.”

This testimony of Mr. Lee Howell and Mr. W. L. Miller, both witnesses for the plaintiff, is conflicting and does not refer to the sale by the Louisiana Producers Oil Company to W. L. Miller which is the pivotal point in this case, since Mr. W. L. Miller transferred to Mr. Jimmie Busbey, the defendant, all of the- property purchased by him from the Louisiana Producers Oil Company; the description of which in the sale from the Louisiana Producers Oil Company to Miller and from Miller to Mr. Jimmie Busbey being in identical language.

The testimony of Mr. Lee Howell, we think, if it had been in the original transcript would not have changed the opinion heretofore rendered by this court in this case.

It is therefore ordered, adjudged and decreed that the judgment and decree of this court heretofore rendered by Judge J. B. Crow as a member of this court be reinstated and the same is made the judgment and decree of this court.