author: Breaux, J. Breaux, J.

text:
    No. 12,073.
    State ex rel. St. Charles Street Railroad Company vs. Board of Assessors et als.
    Under the statute the earning capacity of the plaintiff company forms a basis for estimating values.
    The assessment was made by taking gross earnings and deducting therefrom the cost of operating the road.

      Held, that payment of debts secured by bond and mortgage of a date long anterior was not a running annual expense; that under the terms of the. statutes it was not deductable from the gross annual earning of the year, to fix the net earning and the consequent value at the time, of the franchise. Franchises are property (32 An. 915; Board of Liquidation vs. City of New Orleans; Railroad Co. vs. Delamore, 34 An. 1228; New Orleans, Spanish Fort & Lake Rail" road Company vs. Delamore and Another, 114 XT. S. 505; City of New Orleans vs. Railroad Company, 40 An. 588; New Orleans City & Lake Railroad Company vs. City of New Orleans el als., 44 An. 1055), and amounts applied irom the gross receipts to the payment of property'bought many years prior,'are taken account of in fixing net revenues.
    ‘The franchise was bought for cash; the amount needed to this end was borrowed at the time, and is now bonded and paid from year to year. These past liabilities are not annual expenses of operation, lessening annual revenue. The liability on property does not, in assessing, constitute an offset.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard J.

      Harry H. Hall for Plaintiff, Appellant.

      W. B. Sommerville, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendants, Appellees.
    Submitted on briefs June 6, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused June 29, 1896.
   The opinion of the court was delivered by

Breaux, J.

The relator, alleging that it had made application to the Board of Assessors to reduce its assessment, also to the committee of the Common Council on the revision of assessments for a reduction of its assessment, sued for a writ of mandamus against the Board of Assessors to reduce upon the assessment rolls for the State and parish, for the year 1895, the assessment of its franchise from eight hundred and sixteen thousand and two hundred dollars to five hundred and sixty-six thousand dollars.

The facts are that the plaintiff paid three hundred thousand dollars •cash for its franchise. It afterward issued bonds for this amount payable annually, at the rate of fifteen thousand dollars.

The dividends for 1894, a basis for the assessment of 1895, was.................... $43,752 00,
Amount paid on the bonds............................................................................ 15,000 00,
$58,752 00-
On a principal at 6 per cent, of.................................................................■ 979,200 00
There was deducted other property, in regard to which no issue is raised 163.000 00
Balance.......................................................................................... $816,200 00

The claim of the relator is that there should be deducted from the last amount, as not subject to taxation, the sum sufficient to produce the fifteen thousand dollars used in redeeming bonds, redeemable each year, viz.: two hundred and fifty thousand dollars, leaving for assessment, balance of five hundred and sixty-six thousand two, hundred dollars.

In other words, the relator claims that the annual payment of-fifteen thousand dollars on its bonded debt is a running expense of the road, and contends that it should be deducted in determining, the earning capacity of the road.

The respondents, on the other hand, contend that the mmwnt of-dividends paid by the company to the shareholders, plus the amount, paid on the bonded debt, is the earning capacity of the ro.ad.

An unimportant clerical error was corrected by the District Court;save that correction the relator’s application was rejected.

From the judgment the relator appeals.

The Board of Assessor's is ordered, in assessing the franchise of a corporation, to take its earning capacity as a basis of yaljue.

The word “ earning” in the statutes is a broader term than “ the amount of dividends paid by the company to the stockholder.”

Of course, in determining the proper assessment of a corporation such as plaintiff, the running expenses are to b.e deducted; they, however, do not include an amount to redeem outstanding b, nds. In the matter of assessments these bonds have naught to do with the value of the property. If they had, a corpp,ration buying a franchise for cash would be at greater disadvantage than a.corporation buying for cash and afterward issuing bonds for- the amo.u.nt of borrowed money paid for the franchise. An indebted corporation for such bonds would always be in a better situation as. to assessment; although generally under the assessing sta,tfites, debts are not deducted in determining the assessment. The franchise is as valuable to a corporation owing bonds as it would be to one not indebted on bonds.

Moreover, this indebtedness at first was not an annual indebtedness. The plaintiff was the adjudicatee of the franchise for an amount in cash.

To meet the requirement of the adjudication an indebtedness was incurred the year that it became the adjudicatee; it is no part of the running expenses of years subsequent.

In the cases heretofore decided by this court, to which our attention is directed by plaintiffs’ counsel, the assessment was measured by the amount of dividends paid to the shareholders. There was no question of other amounts earned applied to the payment of bonds securing the indebtedness of a previous year. That question did not arise in the argument at the bar or in the discussions of the court. “ Net earnings ” are defined substantially, in Union Pacific R. R. Co. vs. U. S, 99 Otto. 402, 428, and in U. S. vs Kansas P. R. R., Ib. 455, 460, as the surplus of the transportation earnings above operating expenses.

The phrase has also been defined in a general way as the excess of the gross earnings over the expenditures in producing them, less the expenditure of capital laid out in constructing and equipping the road.

Under each definition each year stands by itself. We do not think that they cover, as an amount to be deducted from the gross receipts, an indebtedness of a prior year.

The company is not, as contended, paying taxes upon a debt it owes, as urged by counsel for relator, but upon the value of a franchise, as shown by dividends and payment on its bonded indebtedness. They are its earning capacities, non affected by present loans to capital account of many years prior.

Under the terms of the statute we think the judgment should be affirmed.

It is affirmed.

On Application eor Rehea ing.

Breaux, J.

After having reconsidered the points involved in this case, and after having carefully read the elaborate brief of energetic counsel, we are still of the opinion that the bonded indebtedness of the company, which represents the purchase price of their franchise and dates a number of years ago, is not, as to the annual payment of interest on this debt, a part of the annual necessary expenses of the business.

The earning capacity of a company is not such an amount as remains after payment of the whole debt of the company or a part.

It is the excess of receipts over expenses.

To illustrate: Upon property largely encumbered large annual profits may be made, and for this reason it must have considerable value.

The value is not, or should not be, affected by prior indebtedness incurred.

It may be a hardship upon this and other similar companies to make the earning capacity the basis of value of the property assessed, instead of taking the market value of the stock. A consideration of that view is not withiD our jurisdiction. The remedy is within the legislative, and not the judicial control.

As relates to the value of the stock, the facts do not place that •question before us for decision.

The case was tried with reference to the earning capacity of the .road as establishing value.

Payments of the debts of the shareholders does not affect the value.

Under the statute the limited life of the franchise, if it does not affect the value of the property, is not good ground to reduce the assessment. Rehearing refused.


source: Caselaw Access Project

author: Miller, J. Breaux, J.

license: Public Domain

text:
    No. 11,970.
    Laurent Lacassagne vs. H. Abraham.
    The creditor, in good iaith, acquiring his mortgage from the recorded owner, is not affected by the fraud of the vendor or vendee practised in the conveyance of the title. 11 La. 408; 4 An. 88, 286; 1 An. 286: 2 H. D., p. 1373, No. 1.
    The right of such mortgage creditor to seize and sell the property is not affected by the suit of the wife of the vendor to annul the sale on the ground it was a fraud on her rights, the suit being directed not against the mortgage creditor, but only against the reputed heir of the husband. Ibid, and 45 An. 1085; 47 An. 49.
    The article of the Code forbidding alienation of the property pending the suit has no application to a valid mortgage created before the suit is brought, or to a • sale under that pre-existing mortgage. C. 0., Art. 2459; Act No. 3 of 1878.
    Nor can the judgment in such suit be pleaded as res judicata against such mortgage creditor no party to the suit. O. 0., Art. 2286.
    A PPEAL from the Seventeenth Judicial District Court for the Parish of Vermilion. Allen, J.

      D. Caffery & Son and W. S. Benedict for Plaintiff, Appellant.

      Conrad Debaillon, Dinkelspiel & Hart, Chrétien <& Suthon and Albert Voorhies for Defendants, Appellees.
    Argued and submitted December 19, 1895.
    Opinion handed down March 23, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal is by plaintiff from the judgment dismissing his suit, asserting title to property accompanied with an injunction to maintain his possession sought to be disturbed by a seizure and sale under the writ issued in the suit of one of the defendants against F. Chapuis, the petition alleging that the property of defendant is no manner bound for the defendants’ judgment on which the writ issued.

The property in controversy was acquired by Jean B. Oavailhezin 1869. The record shows a donation by Cavailhez and his wife Ernestine Diaz, to their daughter Marcelino, made in contemplation of her marriage with Clark H. Renick, followed soon after by the sale of the • property to him for fifteen thousand dollars, duly registered. Cavailhez and his wife died; he in 1882, and Ernestine Diaz before. O. H. Renick died, and at the sale of the property of his succession, his widow, Marcelino, in 1888 acquired the property purchased by her husband from Cavailhez. Soon after she mortgaged the property to Albert S. Maxwell, and failing to pay the debt, Maxwell instituted suit on the 21st May, 1885, seized, sold under his writ and became the purchaser, with plaintiff Lacassagne, of the property at the sheriff’s sale on the 15th August, 1885. Lacassagne afterward ■ bought Maxwell’s one-half interest, thus becoming owner of the whole property. All these titles and the mortgage to Renick were duly recorded.

In 1884, fifteen years, after Cavailhez’ sale to Remick, and subsequent to the purchase by Mrs. Renick and her mortgage to Maxwell, a suit was brought in the United States Court for the Western District, by Mrs. Jean Cavailhez, alleging herself to be the wife of Jean B. Cavailhez by the marriage she claimed to have been contracted in France in 1833, and seeking to recover the property conveyed by Cavailhez to Renick in 1869. The averments of her bill were, substantially, that the alleged marriage of Cavailhez and Ernestine Diaz was void; that the property involved in this controversy, acquired during the marriage, fell into the community ; that the sale from Cavailhez to Remick was designed to defeat her rights as the wife of Cavailhez, by transferring the property to the issue of “ the unlawful wife;” that the price stated to have been paid by Renick was never paid, but consisted, in fact, of the amount settled in dowry by Cavailhez on his daughter; that the donation and sale were in fraudem legis and void ; the bill further averred the indebtedness of Cavailhez to the oratrix for her separate funds, received by him in France, for which she had the legal mortgage of the wife on her husband’s property, and contained the usual charges of bills in equity, of combination and conspiracy of Cavailhez, Ernestine Diaz and her daughter, Mrs. Remick, to deprive the oratrix of her rights. It will be perceived that the only survivor of those whose acts were arraigned in the bill was Mrs. Remick, the sole party defendant, and process against her was prayed in her capacity of tutrix of her minor children, and as administratrix of Remick’s succession and individually. The prayer of the bill was for the recognition of the oratrix as the widow of Cavailhez; that the property be decreed that of the succession, subject to her right to one-half; that the marriage between Cavailhez and Ernestine Diaz be decreed void; that the sale to Remick be annulled, and finally that the debt claimed by the ora-' trix, for her funds received by Cavailhez, be recognized, with legal mortgage on his half of the property. The suit resulted in the decree on January, 1886, recognizing the oratrix as the widow of Cavailhez, and her rights as such; the decree annulled the sale-to Remick; the donation by' Cavailhez to Mrs. Remick, recognized the debt and mortgage claimed by the oratrix, and adjudged she should be put in possession of the property.

Soon after this decree Mrs. Cavailhez, thus recognized as the wife of Cavailhez, died, and by last will instituted F. Chapuis her heir. Then followed a suit in the nature of an ancillary bill in the United States Circuit Court by Lacassagne to protect his possession, but that failed by a dismissal on appeal to the United States Supreme Court without prejudice to his action at law. .While that suit was pending Ohapuis conducted a proceeding in the State Court, by which he claimed to become owner of the undivided half of the property, which, with the title claimed under the bill, he made the basis of the debt and mortgage he contracted to Abraham & Son, the present defendants, who in 1895 purchased under their foreclosure. Lacassagne, remitted by the decree of the United States Supreme Court of March, 1892, to his action at law, instituted his present suit in 1893, directed against Ohapuis as well as Abraham & Son.

We have gone over the facts presented in the record, because to some extent, at least, they - serve to illustrate tjjfi*|®sue, and have^ been discussed in the argument. But in our view the issue is very narrow. The case comes here on the question only of res judicata. We find it unnecessary to discuss the question so elaborately argued, of the jurisdiction of the United States Circuit Court to render the judgment on which the exception is based of defendant, Mrs. Cavailhez.

The argument to sustain the exception of res judicata, or rather estoppel, as it is termed in the briefs, rests on the principle announced by our Code that the property claimed in the suit can not. be alienated pending the litigation, and the prohibition extends to suits for the enforcement of mortgages as well as petitory or possessory suits. Civil Code, Article 2453; Act No. 3 of 1878. There is no. question in our minds that the suit of Mrs. Cavailhez, was- of a. character to forbid any alienation during its pendency.. But the'difficulty of the defendant’s case is whether there was any alienation/ in the meaning of the law of this property during the suit of Mrs.. Cavailhez. There was no mortgage or sale other than the seizure-, and sale under the Maxwell mortgage. But that mortgage, given by one whose ownership was based on the titles spread for more than' fifteen ye irs on the public records, was created in 1883 before the-suit of Mrs. Cavailhez was brought, her bill having been filed in May,. 1884. The sale that occurred after the suit, was the sequel and enforcement of the pre-existing mortgage, which for all purposes of' this discussion is to be deemed good and valid, not assailed by pleadings or proof, unless it is contended there was no power in Cavailhez: to sell or in the purchaser under him to mortgage. In this view then,, before the pretensions of Mrs. Cavailhez were made known by any-suit, the property was charged with the mortgage conveying the/ right to seize and sell. Under that pre-existing mortgage plaintiff /holds.

All concede the principle announced by- the Code, prohibiting ¡alienations pendente lite, but has the principle any application to this controversy. Cavailhez was the unquestioned owner of this property in 1869. Married or not, he had the power to sell. He conveyed to Remick; Remick dying, his widow acquired at the succession sale. These titles were of record, and on the faith the law gives to recorded ownership, Mrs. Remick obtained Maxwell’s money and gave him the mortgage in 1883. It needs but the statement that the mortgagee who in good faith loans his money on the basis of the re - corded ownership, acquires a right not capable of being affected by any fraud of the owner in conveying title. In a leading case the court, dealing with a mortgage by the recorded owner in maintaining the mortgage against the children assailing as fraudulent the title made by their father to the party, who on the strength of his ownership, mortgaged the property, used this language: “Had the recorded owner sold to a third person ignorant of the fraud of the vendee, it can not be doubted the title of the purchaser would have been good; a mortgage is in the nature of an alienation, and the mortgage creditor with no knowledge of the fraud would be equally protected. Foster vs. Foster, 11 La. 408; Stockton vs. Craddick, 4 An. 286; Boudreau vs. Bergeron, 4 An. 83; Richardson vs. Hyams, 1 An. 286; Thompson vs. Whitbeck, 47 An. 49; Broussard vs. Broussard, 45 An. 1085. Thus before the institution of the suit of Mrs. Oavailhez, Maxwell had acquired his mortgage and the right to seize and sell the property for payment of the mortgage debt. That right he exercised and the plaintiff, Lacassagne, is a purchaser under that mortgage. Is ittobe maintained that this pre-existing vested right could not be exercised, but was defeated by the subsequent suit of this lady asserting rights under a marriage never known to the public, as we gather from the record, and claimed to have taken place inFrancemore than fifty years before her suit? The article of the Code that the property sued for can not be alienated, pending the suit, is not to be construed so as to divest rights acquired before the suit. Such construction would bring the article in palpable conflict with the protection accorded to vested rights. If Maxwell had no power to seize and sell under his mortgage, because of the institution of this suit^ brought after his mortgage was created, then his contract right was utterly destroyed by no act of his: by an adjudication to which he was no party, and made in a litigation of which he could have no notice when he acquired his right, because the litigation was begun after that right was vested. The law deems all are apprised of pending suits, and any one who buys or takes a mortgage on property after the suit is begun acquires with notice, and consequently subject to such judgment as may be rendered in the suit. All can appreciate the operation of that rule announced in the Code, but the other proposition challenges prompt dissent that a right acquired is destroyed by the subsequent institution of a- suit, of which there could be no notice when the third person acquired his title or mortgage. The line of authority cited by the defendants make the obvious application of the article of the Code forbidding alienations pending the suit for the property. The decisions refer to rights on property sued for, attempted to be created after the suit is brought. Barelli vs. Delassus, 16 An. 281; Taylor vs. Pipes, 24 An. 552, and others of the same type. The mortgage in this case, created before, could not he deemed affected, because of the subsequent suit and judgment, not directed against the mortgage creditor. But yet it is claimed the right conferred by the mortgage is swept away by that suit. The enforcement of the mortgage is-the assertion of the pre-existing right, and a sale under that mortgage under which plaintiff holds is, in our view, entirely without the scope of the article of the Code. This view, as we think, the fair interpretation of the Code, has been sustained in previous decisions cited. In our opinion the exception of res adjudicata should have been overruled.

If the sale by Cavailhez was a fraud on his wife and Maxwell, the mortgage creditor and the plaintiff holding under him are implicated in the fraud that would furnish a basis for relief to plaintiff. The case as presented here admits of no determination of that issue, and on that as on all questions, save that arising on the exception of res judicata, we give no opinion.

It is therefore ordered that the judgment of the lower court sustaining the exception of res judicata be avoided and reversed, and the case be remanded for trial on the merits.

DisshNtiNG Opinion.

Breaux, J.

I do not think that the plaintiff, who alleges that he is the owner of the property (in so far as appears of record in this case) , was a purchaser without notice, either actual or constructive, of the claim of Jeanne Cave, widow of J. B. Oavailhez.

I am not prepared to agree with the proposition (with the evidence legally before us), nor does the opinion of the court, as I appreciate, so determine,- that a fraud was practised by plaintiff in the case of Gave, widow, against her husband in order to bring about the exercise of jurisdiction by the United States Oircuit Oourt. Neither am I inclined to the opinion that the plaintiff can invoke the fact in his behalf that the succession of Oavailhez was not, in name, a party to the suit brought to recover the alleged rights of Mrs. Gave, widow Oavailhez, as the issues were before the court in that case contradictorily with those under whom plaintiff claims to hold, and as against whom the title was annulled by a judgment which is not void, however voidable it may be.

I therefore respectfully dissent.


author: Miller, J.

text:
    No. 12,155.
    The State ex rel. The New Orleans, Fort Jackson & Grand Isle Railroad Company vs. The Judges of the Circuit Court of Appeals for the Fifth Circuit et als.
    Writs of prohibition and certiorari will not issue when the proceedings of the lower court sought to be reviewed and arrested are ended.
    ON APPLICATION for a Writ of Prohibition.

      James Wilkinson (E. Howard McCaléb of Counsel), for Relator.

      Edward N. Pugh for Respondents.
    Submitted on briefs April 23, 1896.
    Opinion handed down May 18, 1896.
   Application por Writs'op Certiorari and Prohibition.

The opinion of the court was delivered by

Miller, J.

We are called on in this case to direct the writs of prohibition and certiorari to the Oircuit Oourt restraining any further proceedings on the appeal in the suit of the Relators vs. Commissioners of the Lafourche Basin Levee District, and as part of the relief claimed by the relators, we are asked to annul the judgement of the Circuit Court in that suit.

The petition of the relators in the District Court, parish of Plaque-mines, alleged in substance they had constructed a railroad lying partly within the Lafourche Basin Levee District and not over sixty miles in length; that under the Act ÍTo. 19 of 1894 the assessments of the board were limited to fifty dollars per mile on short roads of the character of that of petitioner; that this act applied to all assessments becoming due after the passage of the act; that notwithstanding the board sought to enforce an assessment for the year 1894 on, petitioners’ road at the rate of one hundred dollars per mile, prescribed by the act claimed to have been superseded by that of 1894, and the petition prayed that the assessments be decreed exigible to the extent only of fifty dollars per mile, and that the act be adjudged binding upon that Levee Board.

The suit in the District Court progressed to judgment in favor of the plaintiffs, the Railroad Company, and was appealed to the Circuit Court. The court, ex proprio motu, dismissed the appeal on the ground the pecuniary amount involved excluded the jurisdiction of the Circuit Court, but, on rehearing, maintained its jurisdiction and reversed the judgment of the lower court. Thereupon the Railroad Company, on the application for the rehearing, urged that the controversy involved the legality of a tax on assessment, and the Circuit Court had no jurisdiction because of the character of the question. Constitution, Art. 81. The rehearing was refused. Prom first to last in the Circuit Court there was no suggestion of the want of jurisdiction by reason of the nature of the controversy until the rehearing was asked by the company. The appropriate mode of raising that question was by motion to dismiss the appeal on that ground. But with no such motion or suggestion of the objection to the jurisdiction until the Circuit Court had heard, decided, granted a rehearing, and again decided, the case is here on the application for writs of prohibition and certiorari to review the proceedings of the Circuit Court, annul its judgment and prohibit its further action.

The application, iu our view, comes too late. The action of the Circuit Court complained of, not sought to be arrested while in progress, is now completed. The last act of that court was to refuse the application for the rehearing. There is no further action of that court to be taken, and hence no basis for the writs we are called on to issue.

The application is refused at the relators’ cost.


author: McEnery, J.

text:
    No. 12,128.
    Frederick Spath vs. Wilhelm Ziegler et als.
    A particular legatee who was indebted to the testator when the will was executed and when the testator died, is not entitled to have the debt remitted because of the particular legacy to him.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Branch K. Miller for Plaintiff, Appellant.

      E. J. Wench and B. B. Howard for Curator ad hoc and Executors, Defendants, Appelle'es.
    Argued and submitted May 5, 1896.
    Opinion handed down May 18, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

Mrs. Wilhelmina Ziegler, the divorced wife of the plaintiff, died in the city of New Orleans. She left a will in which she gave to her divorced husband two pieces of property. She also made other particular legacies, and instituted a universal legatee. The legatee, Fred. Spath,'at the time of the execution of the testament, was a judgment debtor of the deceased. His contention is that the property bequeathed to him should be delivered to him by the universal legatee free from the operation of the judicial mortgage created by the recordation of the judgment ¡against him, and in favor of the testatrix. The contention of the plaintiff is that a just interpretation of the will is that it was the intention of the testator to give said property free and unincumbered; otherwise the disposition would be inconsistent, meaningless and without effect, as she would give with one hand and take back with the other. In other words she gave the plaintiff property to be taken back on the execution of the judgment in her favor.

Whether this would be the effect of the judgment, we do not know, as we find no valuation of the property bequeathed in the record. But this is immaterial. The testatrix knew that she had the judgment against plaintiff as well as she knew that she owned the property given to him.

There is no ambiguity in the language of the will. There is no room for interpretation, other than that which its plain language conveys. She o-wned the judgment. She made no disposition of it. She gave to the plaintiff a certain part of her estate. We can not so interpret her will so as to make her give more than that which she plainly says she bequeathed to plaintiff.

The plaintiff was a debtor of the deceased. If she had left a slim of money to plaintiff less than the judgment, it is plain that the judgment could only be credited with the amount bequeathed. So in this case, if the property is less in value than the judgment, the plaintiff will be benefited to the extent that his judgment is lessened by the value of the property.

The prayer of plaintiff’s petition is that the judgment rendered in the case of Mrs. Wilhelmina Ziegler Spath against the plaintiff, and recorded, be declared null and void so far as it concerns the property bequeathed to plaintiff. The debt is not asked to be declared as satisfied by the legacy of the two lots to plaintiff. As long as the debt exists, which the judgment only recognizes, the mortgages resulting from the recorded judgment must also exist. There is only one interpretation of the will that can give the relief prayed for, the cancellation of the mortgage, and that is by interpreting the will in such a manner that it bequeaths to plaintiff the debt he owed • the succession. No disposition of the debt was made by the testatrix, and we can not dispose of what she has not. We are powerless to make a will for her, and to say that she intended to dispose of a particular amount to a particular legatee, when no mention of the amount is made in her will. There is no language employed that remotely suggests that she intended to dispose of the debt to the plaintiff.

Judgment affirmed.


author: McEnery, J. Breaux, J.

text:
    No. 12,077.
    Andrew H. Johns et als. vs. George W. Race.
    Where parties to a partition proceeding, although it-was not definitely closed,, have acquiesced in it for nearly thirty years, the heirs of the original parties . to the suit can not revive it and continue the partition proceeding.
    If the proceedings show that the defendant in the suit has a claim against plaintiffs on final settlement, and he made no demand for it in having it judicially-recognized, and he died many years after, in the suit by plaintiffs to continue the partition the claim of the heir of defendant in reconvention for said amount will not be allowed, for the reason the long silence of defendant presumes an abandonment of the claim.
    ON Application for Rehearing-.
    The case was remanded for liquidation and partition under the instructions of the-court as to certain items and reservation as to others.
    As to one of the items it was not contested, but admitted. In partition proceedings it is not excluded from the partition.
    The inventory taken after the ease had been remanded, not questioned as to its. correctness, is prima facie evidence in support of that item.
    To the extent and amount that the defendant was a creditor and debtor, by operation of law one extinguished the other, and there was no prescription.
    Prescription applies to the remaining balance unclaimed since many years, and, to all appearances treated as a balance after partition.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      John T. Whitaker and Ernest T. Floranee for Plaintiffs, Appellants.

      Merrick & Merrick for Widow and Universal Legatee, Defendant,, Appellee.
    Argued and submitted April 11, 1896.
    Opinion handed down April 20, 1896.
    Rehearing granted May 4, 1896.
    Opinion oil rehearing handed down June 22, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs are the sole heirs and surviving representatives of the plaintiff in suit of A. J. Johns et al. vs. G. W. Race, 18 An. 105. In that suit the defendant had instituted his widow his universal legatee. The plaintiffs sued to reduce the legacy to two-thirds and to annul it for one-third, as the deceased' left her mother, who had died before the institution of the suit, as her forced heir. The petitioners averred that the estate of the-deceased wife consisted of the sum of five thousand dollars (f5000),. received by the husband from her father’s estate, and in the additional sum of six thousand dollars, with interest coming from the-same estate, and by her mother as her natural tutrix; her half in the community which existed between her and her husband, and two lots and improvements therein, and in money and personal property. They prayed for a partition between them and the defendant, of all property belonging to the succession of the deceased wife. The decree was that the plaintiffs be recognized as the heirs of the-deceased wife; that her last will and testament be annulled so far as-it disposes of more than two-thirds of the property of which she died possessed, and that the two lots of ground, together with the improvements as they existed on the same at the time of the death of defendant’s wife, be declared to belong to the community; that defendant’s rights to improvements which he had placed on the property since the death of his wife was recognized and reserved to him; that the defendant’s account in the liquidation and partition of the succession of his deceased wife for five thousand dollars ($5000) with legal interest from the 15th March, 1853, and for the further sum of seven hundred and seventy-eight dollars and fifty-nine cents; reserving to the plaintiffs any right they may have to other property, rights and credits, not specially mentioned in the decree. A liquidation and partition was ordered of the succession of the deceased wife and the community which existed between defendant and his-wife. The case was remanded to be proceeded in according to law and in conformity to the decree of the court. The party presently-defending is the surviving widow of the second marriage of Geo. W. Race who was the defendant in the former controversy. She went into possession of all the property left by her deceased husband-The present suit is for the purpose of having a final liquidation and partition. In the partition it is alleged the purchase of the two lots-referred to in the decree of A. J. Johns vs. Race was null and void,, but these allegations were withdrawn, and there is little left in the-suit, except plaintiff’s defence to the reconventional demand of defendant.

The prayer of plaintiff’s petition is that after due proceedings-there be judgment referring the matter in controversy to Nicholas R. Trisb, notary public, for the purpose of effecting a liquidation and partition of the succession of the deceased wife of G. W. Race, late Sarah A. Jones, now held by Olivia O. Race, widow in indivisión with plaintiffs, the said Olivia O. Race being entitled to two-thirds of said property and plaintiffs to one-third, all in accordance with the decree of the Supreme Court rendered in the case of A. J. Johns et als. vs. G. W. Race in 1866, and that the defendant be entitled to account in the liquidation and .partition for one-third of the fruits and revenues of the real estate described in the partition from 1st January, 1866.

As between the parties to this suit the decree in Johns vs. Race is res judicata. The amounts to be paid to the succession of the defendant’s wife were accurately and definitely stated. The right of the defendant to claim the value of improvements placed on the property was reserved. And the right to plaintiffs to demand other rights and credits -was also reserved. Under the decree it was necessary to properly partition the property to have the same preceded by another inventory. This seems to have been recognized by both plaintiffs and defendants, for a motion for a new inventory was made by defendants’ counsel and concurred in by the counsel of plaintiffs. What informalities, if any, there were in the inventory are cured by prescription.

The inventory prayed for was made. The lots were appraised as vacant lots, and the improvements placed on them since the death of defendant’s wife were also separately inventoried and appraised. The lots were appraised at four thousand dollars; the improvements at thirty-six thousand dollars. The debts due by the husband to the wife’s succession, as ascertained by the court, with interest added to the five thousand dollars, were placed on the inventory. “Claims and credits” amounting to seventeen thousand six hundred and •eight dollars and sixty-six cents were also placed on the inventory.

A family meeting in the interest of the minor plaintiffs advised that the lots be sold for cash to effect the partition. On the first application of counsel for plaintiffs and defendants a decree was-provoked, ordering the lots to be sold for cash. The defendant in the partition suit, George W. Race, purchased the property for twenty thousand dollars.

It seems after this sale nothing was done in further prosecution of the partition. The reason for this inaction, we think, is fully accounted for by the fact that on the final liquidation the plaintiff would be indebted to the defendant. All parties lost interest in the proceedings. George W. Race, the defendant, took no steps to have the indebtedness to him to be judicially recognized, thus exhibiting a willingness to give the plaintiffs the benefit of his claim against them. All parties to the original suit are dead. They seem to have settled all the differences before death. They abandoned the suit and rested with acquiescence, if not satisfaction, upon the logical showing of facts and figures on the inventory. The decree in the-first suit was in 1866. The heirs of the plaintiffs in that suit filed the present suit in 1894. The defendant in that suit, who died in 1881, evidently never had any intention of enforcing his claim against plaintiffs. The District Judge, who knew him, speaks of his generous and magnanimous nature, and members of the court can confirm this estimate of the deceased’s character.

Under the facts of this case we do not think it would be just to the memory of the deceased to allow the demand in reconvention. It would have never been made, we are assured, but for the suit of plaintiffs. The demand in reconvention is stale and the probabilities are that both plaintiffs and defendant in the original suit had settled their differences by tacit consent, to which long silence and inaction have given the force of a positive agreement.

The judgment is amended so as to reject the reconventional demand of defendant; in all other respects it is affirmed.

Mr. Justice Miller concurs in the.decree.

On Application por Rehearing.

Breaux, J.

The plaintiffs and intervenor abandoned their demand to have the probate sale to the late G. W. Race declared null.

All questions relating to the title of the property bought at that sale are settled.

The remaining issues relate principally to an amount claimed by defendant as due by the plaintiffs.

The claim originally was not disputed by plaintiffs. It was submitted in pleadings, by which they are bound, as an amount for which they were indebted.

A decree of this court was pleaded as an estoppel, and as res judicata.

The proposition does not admit of discussion; an issue properly-determined operates as a bar to any further consideration of the subject.

In the petition for the judgment pleaded as res judicata the plaintiffs admitted their indebtedness, or rather the indebtedness of their mother, to the defendant from whom they inherited, while in the petition they claimed certain items as due to them by the defendant.

The answer in that suit did not traverse plaintiffs’ allegation admitting their indebtedness. The defendant denied his indebtedness; nothing more. This was the issue tried and decided. No reference was made to the admission, and no part of the admitted amount was incorporated in the decree. The judgment is absolutely silent as to the claim. The court did not give a judgment for the amount, nor was it on the other hand rejected.

Without pleading in point, without an issue, raised, in partition proceedings, in which there are many items, we do not think that res judicata applies. It must be borne in mind that this was not a contested claim, and that the admission was in the interest of the one against whom the judgment is now placed as res judicata.

Tn the decree, pleaded as the thing adjudged, the court reserved to plaintiffs, rights to other property, if any, they had. Johns vs. Race, 18 An. 105, 107.

In our decree in this case we held that the judgment operated as res judicata, referring to the issues pleaded, and finally •decided, and not to an amount admitted by plaintiff as due and not passed upon by the court.

It is true that the plea of res judicata can be invoked in partitition proceedings when the judgment; decides the issues. ,

It does not follow that failure to fix a credit, upon the pleading and admission of a plaintiff, bars an action for an amount silently passed over, and which did not, in any respect, enter into the judgment.

The defendant can not be compelled to reconvene.

The principle is laid down by Mr. Bigelow in his valuable work on Estoppel, p. 135. His illustration is pointed in support of the proposition that the judgment is not conclusive, and that a remedy remains to secure the admitted amount.

The judgment pleaded as res judicata decreed a partition of the property. To serve as a basis for the partition an inventory was taken in accordance with requirement of the decree. This debt to the succession due by the plaintiffs was inventoried. It is true that the partition was not made. But the inventory remained unquestioned. These many years the heirs have remained silent. It is true in the prooes verbal of the inventory it does not appear that -the heirs were made parties. Previous to the inventory, however, their attorney accepted service of the petition for the partition. It was treated as a correct inventory and offered in evidence without suggestion of error. A conclusive presumption supports its correctness. Fink vs. Lallande, 16 L. 547, 554; Drouet vs. Rice, 2 R. 374, 377. Contemporanea expositio est optima et fortissima in lege-.

The plea of prescription is interposed on part of the plaintiffs as another bar to this claim of defendant. The sale of the property reduced the assets to cash or its equivalent.

The two debts to an equal amount are reciprocally extinguished— that is, the amount due by defendant on his purchase was extinguished by an equal amount due him by the estate, inherited by the plaintiffs. These successions had been accepted by the plaintiffs. The rights were inherited. The adjudicatee was indebted for the price. He was at the same time a creditor of the heirs of the succession. Extinction took place after these many years of uninterrupted acquiescence.

This brings us to the matter of the balance remaining due on the face of the papers after deducting the purchase price from the total found due to the defendant; an issue now pressed by the defendant. The interested parties seemed for many years, while all the witnesses were alive, to have considered everything connected with these successions settled. It is now a fait accompli, not, we think, to be lightly disturbed. The difference was established many years ago and must have been well known by the parties. The defendant must have known that an amount was due. For good reasons doubtless he did not choose to claim it. In our opinion the statute of prescription applies to this balance.

The defendant and appellee apprehends that our decree affects her title. This was not the intention and it does not follow from its terms.

In order to place the matter at rest our decree is modified so. as to apply in rejecting the reconventional demand only to the amount claimed as due to the defendant after deducting Ms indebtedness from the total due him as before stated — i. e., to money demands.

With this slight modification our original decree remains unchanged.


author: McEnery, J. Nicholls, C. J.

text:
    No. 11,936.
    W. H. Henderson et als. vs. Crescent Insurance Company et als.
    When an insurance company, under its contract, elects to repair and fails to do so and the assured completes the repairs, the insurance company is liable for the cost of the repairs without reference to the amount of the insurance.
    The election to repair is a contract which can only be discharged by its performance or execution. Defects in the material in the original building will not ex. cuse non-performance.

      On Rehearing. Niciiolls, C. J.: One contract may be more or less connected or dependent upon another; one might not have existed at all but for the prior existence of the other, and yet the two be legally separate and distinct, walker vs. Villavaso, 15 An. 717.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Fenner, Henderson & Fenner for Plaintiffs, Appellees.

      Denégre, Blair & Denégre, Carroll & Carroll, and Leovy & Leovy for Defendants, Appellants.

      Dart & Kernan for Walther, Warrantor, Appellee.
    Argued and submitted March 26, 1896.
    Opinion handed down April 20, 1896.
    Rehearing granted May 4, 1896.
    Argued and submitted on rehearing June 16, 1896.
    Opinion on rehearing handed down June 22, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs took out policies of insurance in the defendant companies on a building in the city of New Orleans which they jointly insured. A fire partially destroyed the building. Each policy contained a stipulation that it should be optional with the company to repair, rebuild or replace the property on giving notice within thirty days after receipt of-proof of loss. The insurance companies elected to repair and replace the property. After commencing work they abandoned the same for the reason that a part of the building collapsed and fell, impairing the repairs which had been made, and doing other damage to the building; that afterward a storm blew down a portion of the rear wall, and the party wall was afterward condemned by the city authorities. There is a dispute as to whether the collapse occurred through the fault of the contractor employed by defendants, or whether it was caused by inherent defects in the original construction of the building. The defendants endeavor to escape liability on the ground of the inherent defects in the original construction of the building, and if, as contended by plaintiff, the collapse was through the fault of the contractor, they ask for judgment against him in the amount rendered for plaintiffs. He was cited as warrantor.

When the defendants abandoned the work, the plaintiff undertook the repairs. There was judgment in their favor for the amount thus expended, and their demand in the call in warranty was rejected.

The defendants filed an exception, alleging a misjoinder of parties plaintiffs and defendants, because there were separate contracts with each company, and that each insurance company was not a, party to the contract made by the other, as each part owner of the property insured his interest in a separate company. Each contract stipulated to pay the loss, or to repair, rebuild or replace. They all elected to repair. Each could not repair one undivided part of the building. But if there was any force in the exception, it was avoided by the companies undertaking to repair, and employing, through an agent, one of the defendants, to repair for all.

The election to repair converted the contract of insurance into one of repairing, regardless of the amount of the insurance named in the policy, which ceased to be a rule, for damages. Fire Assurance vs. Rosenthal, 108 Pa. 476; Morrell vs. Irving Fire Insurance Co., 33 N. Y. 429.

This principle has become so fixed by repeated adjudications that it has passed into the text-books as elementary. 2 May Insurance, Sec. 433; 7 Am. and Eng. Ency. of Law, p. 1053; 1 Wood Fire Ins, p. 333.

The defendants were in the position when they elected to repair as though they were contractors who had examined the building and made an estimate of the expense. No original defects in the building could possibly excuse them from doing just what they had agreed to do. It was to repair the building as it originally stood, and if there were defects in timber, weak walls, etc., it was their duty to have considered these matters before making the election. They can not be urged as defences for non-execution. of the contract. If the obligations of defendants thus arise from an ordinary contract to build or repair, it would seem that it is even the more imperative when the contract has been substituted for the contract to indemnify the loss in money, as the contract of insurance is to fully indemnify the insured and to place him in as favorable a position as he was before the loss. This has been affirmed in many cases, and it has been often held that where a wooden structure is insured and partially destroyed, and a city ordinance forbids repairing and requires a brick building in place of the wooden one, the loss will be treated as a total destruction of the building. 2 May Ins., Sec. 433; Brady vs. N. W. Ins. Co., 11 Mich. 425; Ins. Co. vs. Garlington, 18 S. W. 337; Monteleone vs. Ins. Co., 47 An. 1568.

In 1 Wood on Fire Insurance, pp. 331, 332, it is stated, in speaking of the election to indemnify in money, or to rebuild or repair, “which of these it will do it is optional with the insurer to choose-, and when he has made his selection the contract becomes one to pay money, if he so elects, or to reinstate the property if he elects to do that without any reference to the expense of doing so.” And on page 333 the same authority says: “When the insurer elects to reinstate the property and gives notice thereof to the assured, it is held that he is not excused from doing so, because performance has become impossible. Nor will he be excused from paying the entire amount of the loss. An election to rebuild operates as a waiver of all defences, except fraud or mistake.”

The testimony in the record shows that Walther, the contractor, used all necessary precautions to protect the building from falling when taking down the walls. The collapse evidently was caused by inherent defects in the building aggravated by the fire. It was originally improperly constructed, as the walls were not properly anchored, but it would have probably answered all purposes had it not been for the Are.

The testimony of the city officials, whose duty it was to critically ■examine the building, and who observed the precautions to prevent the walls' from falling by Walther, we think is conclusive that he was not to be blamed. At any rate the evidence is so conflicting on some points where it is attempted by plaintiffs to prove that the contractor was at fault that no judgment could be rendered on the call in warranty against the contractor.

Judgment affirmed.

ON Application eor. Rehearing.

Nicholls, C. J.

The opinion heretofore rendered in this case proceeded upon the principle that although the insurance companies by ■electing to rebuild the damaged property, as they were authorized under their policies to . do, transformed — in a sense — the insurance into building contracts. These contracts were of a kind in some respects essentially different from ordinary building contracts. That the obligation of the companies were much broader than those of ■simple building contractors, as the insurance or indemnity features of the original contracts were transported over and imported into the substituted or rather modified contracts resulting from election. .So holding, it might well and consistently be that the companies should be held bound to the plaintiffs when the rights and obligations •of parties took their origin in insurance contracts when they would have been absolved from liability had the initial contract been one for building.

On application for rehearing the court adhered to its views upon this branch of the case and declined to reopen the question as between the plaintiffs and defendants, though it did s eopen it as between defendants and the builder, with whom they had contracted to do and who actually did the work. The effect of this final affirmance of our decree between the original parties has been to make the principle announced become fixed as the law of the case as to the original contracts.

The effort of defendants on rehearing has been to show that Walther, the builder, being fully cognizant of the relations between the plaintiffs and the defendants, and the resulting rights and obligations of parties, and having made his own contract with full knowledge of the same, he did so with reference to them and consented to be bound as between himself and the companies by the same obligations as were the defendants to the plaintiffs. We can not accede to that proposition. One contract may be more or less connected or dependent upon another; one might not have existed at all but for the prior existence of the other, and yet the two be legally separate and distinct. Walker vs. Villavaso, 18 An. 717. The-responsibilities flowing from the one as between the original parties do not gauge the responsibilities of the others. We have to determine and measure the rights of the defendants and Walther by the immediate contracts which they made between themselves. By that test we see no reason to change our original opinion, and it must, therefore, remain undisturbed.


text:
    No. 11,739.
    S. Gumbel & Co. vs. Illinois Central Railroad Company.
    Railroads using appliances in common use which have been used for a long time and found sufficient to protect their own and other property from danger, would be protected against the charge of negligence, because of its use. If such appliances are used the burden of proof is on plaintiff to show they were defective or improperly and negligently used.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Saunders & Miller (S. S. Calhoon and Maroellus Green of Counsel) for Plaintiffs, Appellants.

      Farrar, Jonas & ICruttschnitt and Farrar, Leake & Lemle for Defendant, Appellee.
    Argued and submitted April 10, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

McEnery, J.

On April 3, 1892, the Fire Proof Cotton Press was destroyed by lire in the city of New Orleans. The fire extended to-the Orleans Cotton Press, which, with its contents, was also destroyed. This suit was instituted by the officers of the Orleans Press to recover the value of the cotton burned in their press. They aver that the ñre. originated from sparks emitted from an engine owned and controlled by defendants while passing a pile of cotton bales on the banquette alongside of the Fire Proof Press; that the sparks emitted from the engine were due to the negligence of the defendant in the construction arid operation of the engine and to the defectiveness of the track at the point at which the sparks were emitted from the engine.

For the origin of the fire and the defectiveness of the track upon which the engine jolted, thus, according to plaintiffs’ theory, causing the sudden energy which made the engine emit the sparks, the plaintiffs relying upon the testimony of one Ballard, which it claimed was corroborated by a number of witnesses.

We might, upon authority, dispose of this case, by saying that the testimony satisfies us that the defendant company’s engine was properly equipped with all necessary appliances in good order for the arrest of sparks caused by the particular fuel which the company used in the fire box of the engine. Elsewhere there are others, and, it may be, safer appliances used, but they have not been adopted by all roads, being used principally by the Pennsylvania Central. At any rate it is shown that different roads use differently constructed engines, with difference in size of meshes in the wire netting, and we presume that each road equips its engines according to the services it is destined to perform. We are of the ■opinion that for all practical purposes engine No. 109, which it is claimed emitted the sparks, was properly and effectively constructed and equipped for the arrest of sparks from the burning of anthracite coal — the fuel which was used in the service of the engine. We had a view of the “ spark arrester ” used in this engine, and we are convinced that sparks of insignificant size could only be emitted under the most favorable circumstances.

We understand from expert testimony that anthracite coal makes no smoke, but emits from the smoke-stack a light blue vapor; that the engine using it throws out fewer sparks and of a different shape than when soft coal is burned. The sparks from hard-coal burning •engines are, as a general rule, flakes of coal in a greater or less ■degree of combustion, and contain less heat than the sparks from soft coal. The sparks that pass through the netting are broken and contain little heat. They live but a short distance in the air — say not more than thirty or forty feet.

The witness Ballard says but few sparks were emitted from the' smoke-stack of engine No. 109, and they were the size of his little-finger. No sparks of this size could have been projected through, the netting with which it was equipped, unless the netting was in bad condition. The testimony is uncontradicted that the netting was in perfect condition.

Locomotive No. 109 was built by the Brooks Locomotive Works,, which is one of the largest works of the kind in the United States. This locomotive was designed by John Plair, the mechanical engineer of the establishment. That he is able and competentis evident from the fact of his employment by such an establishment. His testimony is important because it rests not alone upon theory, but from observation also. He says it is not possible to construct a locomotive-that will not emit some sparks, but they are generally dead before they ascend to any appreciable distance and begin to fall. No. 109’ locomotive was designed for diamond stack to use No. 12 wire with 234x2)4 mesh. For the extension locomotive the general practice is to use the 2>4x2 J4 mesh with No. 12 wire, and for the diamond stack 33áx3 >¿ and No. 18 wire. Extension fronts have been in use-twelve or thirteen years, and were introduced by the Pennsylvania Road, with which he was connected when they developed them. The-universal practice of all locomotive builders is to use the 234x234 mesh in extension fronts. -He says he has run locomotives equipped' with the three and one-half mesh and with two and one-half mesh,, and the latter throws out no more sparks than the former. Under-the same condition the two throw out about the same size of sparks. Ninety-two per cent, of the locomotives built by the Brooks Locomotive Works were equipped with the two and one-half netting. This size of mesh was in general use and approved by the railroads. Experience must have demonstrated its efficiency. This particular mesh is in general use on many of the largest railroads, and the testimony is that it arrests sparks about as well as any other. Railroads, it may be assumed, adopt appliances which will protect them from liability. Railroads using appliances in common use, which have-been used for a long time and found sufficient to protect their own and other property from danger, should, as a general rule, be protected against- the charge of negligence because of its use. If such-appliances are used the burden of proof is on plaintiff to show that they were defective, or improperly and negligently used.

In the case of V. & A. Meyer vs. Railroad Company, 41 An. 610, we held that when an engine was properly equipped with effective apr plianees to prevent the escape of sparks the burden of proof is shifted to the plaintiff, and the testimony must be very strong and convincing to establish negligence on the part of the defendant company. In this case the strong and convincing testimony is wanting.

It is unnecessary to pursue this discussion further, as we have concluded that the testimony does not show with reasonable certainty that the fire originated from sparks emitted from the engine No. 109 belonging to and operated by the defendant company on the morning of the fire. A few sparks were emitted, as stated by the witness Ballard, and he says he did not see them go on the cotton, but only in its direction. The fact that the cotton was set on fire by the sparks is inferred from his statement that the fire originated twenty minutes after the engine passed.

The witness Ballard testified as follows: That engine No. 109 was coming down town about half past 8 or 9 o’clock, and was running at the rate of six miles an hour with the tender in front. As the engine was passing a curve it gave a jerk, and “ looked like she sorter threw her wheel off, and the engineer gave it one or two revolutions and the engine went on down the river.” When the engine jumped the track with one wheel off, the engineer “ pulled out his throttle” and the engine only stopped a second and went on. It was this “jostle” or jump which caused the smoke and sparks to be emitted, few in number, but the size of his little finger. He says the wind was blowing toward the cotton. He did not see any of the sparks go on the cotton, because the engine was between him and the cotton. It was ten or fifteen minutes after the engine passed that he saw the fire on top of the cotton next to the Fire Proof Press. This press was located at the corner of Race and South Front street. The cotton was piled on Race street in front of the banquette and alongside of the Fire Proof Press. It was in two sections with an interval of some feet separating the two piles. The Belt Road over which the engine was run the morning of the fire is located along Front street, and a spur track runs from about the centre of Race street into the gas yard. Where the spur track joins the Belt Road there is a frog, and it is at this point where the engine is said to have jumped the track and emitted the sparks. The witness locates himself at the coal office of Coyle at 6 a. M., where he remained until he saw the fire.

Next to Ballard the plaintiff relies upon the testimony of one H. A. McGregor, who states that about 9:80 a. m. he reached the river front, having passed the cotton in which he saw no signs of Are. When at the river front he saw the fire in the second tier, about the second bale from the end on the side of the cotton just below the tarpaulins. The important part of his testimony is as to the time of the fire, corroborating that of the witness Ballard. The time that the cotton-ignited after the passing of the engine is important. These-witnesses fix the time at about twenty minutes after the passage of engine No. 109. Without referring in detail to the testimony on this point, we think it satisfactorily proved by the train men operating the engine that the engine Noi 109 passed early in the morning, say at 7:80 A. m., and it was several hours before the fire was discovered after the engine had passed. With the wind blowing at the rate' and in the direction which the witness Ballard gives it, it is incredible to suppose that after the sparks, the size of his little finger, had fallen on the cotton it would have taken this length of time to ignite. Much stress, too, is laid upon the testimony of several witnesses that the track was rough and in bad condition at the part where the witness Ballard says that the engine went off the track with one wheel, and by giving additional impetus to it, by applying more steam, the engine gained the track and proceeded on its way.

But these witnesses go no further than to say the track, at that point, where there are several rails, is in bad condition, giving the engine a lurch forward toward the frog.. The testimony of the engineer and others in charge of the train deny that any such thing occurred as described by Ballard. Our experience alone tells us that it is impossible for an engine to have one wheel off the track, and by giving additional speed to it, to place the wheel again on the rails. The fact testified to by Ballard was, no doubt, that which was observed by the witness Williams, who saw an engine pass over the same track. He says that there was a decided apparent unsteadiness in the wheels and a lurch of the locomotive to the side of the frog. This unusual jolt or lurch was not such as would have attracted his attention unless he had been looking at the wheels of the locomotive, when he certainly would have noticed it. We do not think there was in the passage of the engine over this track such a condition as to require the extraordinary exertion, described by Ballard to get the engine on the track and to cause the unusual emitting of sparks the size of his little finger. That Ballard was mistaken we think there is little doubt. His statement as to the time of the passage of the engine is disproved, as well as the make-up of the train. Where his testimony is corroborated by one witness it is disproved by many others. The cotton was only partially covered by tarpaulins, and along the pile of cotton it was possible for it to be ignited at several points. On the contention as to what particular part in the pile the fire occurred there is a conflict of testimony. It is on top near the end of the pile to Front street; again, it is at the bottom, and again in the pile separated from the pile nearest Front street near the opening between the two piles — in an entirely different locality described by Ballard. Nobody seemed to know the origin of the fire. Nine months elapsed before it was discovered that engine No. 109 set fire to the cotton.

An officer whose duty it was to report the fact officially stated, as a theory, it was ignited by a cigarette. The cotton was unprotected by efficient police, and it was not practical to notice who passed by it. It was in a public place, on a public street, and persons could go by it unobserved between the fire press and the cotton. It was as probable that the fire originated by the careless handling of the pipe, cigar or cigarette, as by sparks from the locomotive.

One of plaintiff’s witnesses says he left his house at half past nine o’clock, and lit a cigarette, and passed by the pile of cotton on his way to the river. He had passed the cotton about a half a square when he heard the alarm of fire. He does not state that he was smoking when he passed the cotton, but as the habit of cigarette smoking is universal, inveterate and continuous, it may be that others also passed and may have indulged in the habit.

The mass of testimony is conflicting in some particulars, but we think the preponderance is that the engine No. 109 passed the pile of cotton several hours before the fire was discovered; that anthracite coal was used, from which no black smoke could have issued, in which the sparks could be seen, and that the engine was so equipped with a spark arrester that it is not probable that sparks of sufficient size could have been emitted that would live more than thirty or forty feet beyond the smoke-stack, and it is not probable that sparks of the size described by the witness Ballard were emitted from the defendant’s engine, and the testimony does not convince us that the fire originated from sparks arrested from the locomotive of defendant’s train.

Judgment affirmed.


text:
    No. 12,201.
    P. A. Chopin vs. J. Pollet et als.
    It is not essential for a valid assessment of property on the tax rolls that it should follow exactly the deed of the property to the tax debtor. It is a sufficient assessment if it conforms to it and identifies the property.
    A purchaser of property is not concerned with the warranty from tne vendor to plaintiff, who seeks to compel his vendee to accept title. He can not proceed against the warrantor of his vendor without express subrogation.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Wall & Watt for Plaintiff, Appellee.’

      Dart & Kernan for Defendants, Appellants.
    Submitted on briefs June 26, 1896.
    Opinion handed down June 29, 1896.
   The opinion of the court was delivered by

McEnery, J.

Defendants appeal from a judgment commanding them to take title to certain immovable property described in plaintiff’s petition.

The plaintiff and defendants entered into an agreement by which the former was to sell the property to the latter, tendering .them a good and perfect title. The defendants refused to accept title when tendered, on the ground that there was no personal warranty to plaintiff by his vendor; that the title tendered by plaintiff is a tax title, the property having been sold for the taxes of 1876, 1877 and 1878, made in pursuance of Act 82 of 1884; that the assessments of said property were defective in its description; that neither plaintiff nor his assigns have been in possession a sufficient length of time to acquire title by prescription, and that defendants fear that the absence of a stipulation of warranty in the title to plaintiff will cause them to be sued and evicted for defects of which they are not aware; that there were no taxes due on said property; that the owner was dead, and his wife also, at the time of the assessments. There is no evidence that the party to whom the property was assessed was dead at the time of the assessments, or that the taxes had been paid on said property.

The description of the property on the assessment rolls was sufficient to identify the property, and to point it out as the property of the party to whom it was assessed.

The deed to Smith, the tax debtor, described the property “as lots five, six, seven, eight, adjoining each other, and measure each thirty feet front on Washington street by a depth, between parallel lines, of one hundred and thirty feet six inches and four lines; said lot eight forming the corner of Washington and Broad streets; lots nine and ten adjoin each other, and measure each thirty feet on Broadway by a depth, between parallel lines, of one hundred and twenty feet.”

The assessment and the Tax Collector’s deed described the property as “ five certain lots of ground in the Sixth District of the city of New Orleans, in the square bounded by Washington, Broadway', St. Charles and Pine streets, designated as lots Nos. 5 to 9; measuring one hundred and twenty feet on Washington street by a depth of one hundred and sixty feet and four inches, forming the corner of Washington and Broadway streets.”

The measurement and lot numbers correspond to the title of the person, A. W. Smith, to whom the property was assessed. The property on the assessment rolls and the tax deed is described as a whole and in more accurate detail. This is only the substantial difference in the description.

It is argued that the tax debtor was living in 1880, and may appear and contest the defendants’ title. Apparently there are no defects in the tax title. It is prima faoie a good title, and we are not called upon to invalidate the title, because there is a possibility that Smith may appear and urge grounds of nullity that can only be conjectured, not even raising a cloud on the title as now presented.

The defendants are not'Concerned with the absence of warranty between plaintiff’s vendor and himself. Had there been an express warranty defendants could not avail themselves of it without subrogation.

Judgment affirmed.


text:
    No. 12,142.
    Mrs. C. Brown, Wife of H. Dressel, vs. Pontchartrain Land Company.
    When the tax eolleetor sells property for taxes which have been paid, the sale is null and void, and the purchaser at said sale acquires no title to the property and can transfer no title to a third party.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Louque & Pomés for Plaintiff, Appellee.

      Benjamin Rice Forman and B. R. Forman, Jr., for Defendant, Appellant.
    Argued and submitted May 8, 1896.
    Opinion handed down May 18, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by.

McEnery, J.

The plaintiff alleges that she is the owner of certain immovable property described in her petition; that the same was sold by the tax collector, under Act 82 of 1884, for the unpaid taxes of 1876; that one J. H. Griffiths purchased the same in 1894, by virtue of said tax sale, and that he sold t.he property to the defendant company, which instituted proceedings for the purpose of obtaining possession of said property. She prays for an injunction restraining the defendant company from disturbing her lawful possession, and the annulment of the tax sale, and an order to erase the same from the records.

There was judgment for the plaintiff as prayed for.

The tax sale was based on the assumed fact that the taxes of 1876, due the State, had never been paid, and that the property had been returned, as delinquent, to the mortgage office.

The property was returned as delinquent to the mortgage office, but the fact is that the property was not delinquent, and the taxes for 1876 had been paid. A certificate from the tax collector shows that the property was not delinquent, and the tax rolls show that the property was assessed in 1876 to the Oanal Bank and the taxes paid.

There was no basis for the tax sale, and it is therefore null and void.

The Canal Bank sold the property, in 1876, to Duncan F. Kenner. It is immaterial whether he or the bank paid the taxes. They were paid, and this was sufficient to stop all proceedings against the property, thereafter instituted, to enforce the payment of taxes.

The return of the property to the' mortgage office as delinquent, was an error and an inexcusable one, and the tax rolls show that the taxes had been paid.

No title was vested in Griffiths by the tax sale, and he could transfer none to the defendant company.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,199.
    State of Louisiana vs. Isaac Harris.
    Proof of flight is admissible. The weight of this evidence is frequently modified by the circumstances. It should upon that ground be excluded. The fact is to be considered and weighed with the other evidence.
    The Supreme Court having no jurisdiction in criminal cases to review questions of fact the evidence will not be examined for the purpose of determining whether it authorized a conviction.
    APPEAL from the Twenty-sixth Judicial District Court for the Parish of St. Charles. Rost, J.

      M. J. Cunningham, Attorney General, and P. E. Edrington, District Attorney, for Plaintiff, Appellee.

      J. L. Gaudet for Defendant, Appellant.
    Submitted on briefs June 15, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Breaux, J.

Isaac Harris was indicted for murder in 1891.

He was tried in 1896 and convicted of manslaughter. Prom a sentence to hard labor in the penitentiary for a term of ten years he prosecutes this appeal. (He is not in this court represented by counsel.)

The questions for review are presented in two bills of exceptions.

The first was taken to the ruling of the trial judge permitting the District Attorney to propound the question whether he had searched for the accused.

The lapse of time between the date of the alleged crime and the trial suggests of itself the propriety of inquiring and even searching for the accused.

The objection was made, it is stated by the judge in the bill of exceptions, after the sheriff had sworn that he could not find the accused at his domicile at the time the crime was committed. This statement of the sheriff having been made without objection, as shown by the bill of exception, it was proper to introduce proof of the sheriff’s action in the endeavor to obtain the presence of the accused.

Proof of flight-, though not conclusive of guilt, is admissible as ground from which to infer consciousnes of guilt.

The weight of the evidence may be greatly reduced under certain circumstances; it is none the less admissible. The admissibility of the proof of flight, as one of the presumptions of guilt, is not limited to secret crimes, as was contended in behalf of the accused on the trial. The proof is as admissible where the deceased was killed publicly, in the presence of witnesses, and the plea is self-defence, as where the crime was secretly committed.

The second bill of exceptions was taken to the refusal of the new trial. The accused in the motion for a new trial detailed a number of facts that he urged, should have convinced the jury of his innocence.

The bill of exception was based on the motion for a new trial, which was annexed to the bill.

The grounds were substantially that the verdict was contrary to the law and the evidence.

To review the decision of the court below, a ease must be presented by a bill of exceptions disclosing all that is essential to that end.

Here the evideuce is not embodied in or made part of 'the bill of exceptions, and is therefore not before us.

The allegations contained in the motion for a new trial were not evidence in the case, and that is all that was brought up for our examination.

If they were evidence and properly before us for review, they present only questions of fact, not reviewable on appeal.

These bills of exceptions set forth the only grounds. The verdict and judgment must be affirmed.

They are affirmed.


text:
    No. 12,104.
    Giacona & Son vs. The Bradstreet Company.

      Mercantile Agency. — The business of commercial agencies is lawful and beneficial to commerce.
    Their publications issued to subscribers generally are not privileged communications.

      Not Privileged — If their reports, issued on printed lists and generally distributed among their subscribers, are erroneous and thereby occasion damages, they may be held liable.

      Negligencenot Retrospective. — As relates to an erroneous report, negligence of one-injured, by which the injury is aggravated, will not bar him from recovering damages for so much of the injury suffered prior to the negligence.

      Damages Specialnot General. — The supposed libel was not actionable per se, but only in respect to the special damage claimed and shown'.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Harold W. Neivman for Plaintiffs, Appellees.

      Harry H. Hall for Defendant, Appellant.
    Argued and submitted April 24, 1898.
    Opinion handed down May 4, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendants were engaged in the business of collecting and distributing information as to the credit and financial standing of men in business.

The plaintiffs conducted a retail grocery and commission business.

The suit is for an alleged libel committed, it is averred, by the defendants against plaintiffs. The important facts in deciding the issues are that it was published by a reporter of cases in the courts (in the daily court reports) that suit had been brought by H. Lochte & Co. vs. S. Giacona for one hundred and ninety-seven dollars and eighty-nine cents on an account.

Subsequently the same court report published that a judgment had been obtained by this plaintiff against S. Giacona.

Defendants, in their printed list of changes furnished to subscribers, published that plaintiffs (not S. Giacona as mentioned in the court report, but erroneously), S. Giacona & Son, had been sued.

In the copies of the city directory, introduced in evidence, there was only the firm of Giacona & Son, and no other firm of a similar name.

The defendants in error assumed that plaintiffs had been sued upon an open account, and so reported to their subscribers.

The credit of plaintiffs being that of men of limited means, it is contended by them was affected by the report; several merchants testified that they refused to credit the firm and gave for reason that a pending suit against one in business unexplained is nearly always attended with unfavorable effect to his credit.

Giacona & Son brought this suit for damages against the defendant a few weeks after the defendants had furnished the erroneous information to their subscribers.

The jury found a verdict for plaintiff in the sum of four hundred and ninty-nine dollars. Prom the verdict and judgment of the court the defendants prosecute this appeal.

In argument it was argued that there is no evidence that there existedjjany such firm as Giacona & Son, and that without such evidence plaintiffs could not maintain their action.

No plea was interposed and no objection made upon this point in thedower court save in the motion for new trial.

It is true that the existence of the partnership was not specially shown. But in the evidence the firm is frequently referred to as an existing partnership; its existence was not at any time questioned. Moreover, objection to the capacity of plaintiffs to stand in judgment not raised in the pleadings will not be noticed. Adams & Co. vs. Coons et al., 37 An. 305.

There is nothing of record suggesting ill feeling on the part of the defendants, and, therefore, malice is entirely eliminated from consideration.

This brings us to the question of the error committed and its effect upon plaintiffs’ business.

It was the misfortune of plaintiffs that those with whom they had business relations were not careful in writing down their names.

In seven bills introduced in evidence their names are differently given. They were made oiit against S. Giacona & Son, G. Giaeano, and other similar names. In the petition, which gave rise to the impression that plaintiffs had been sued, the name of the defendant in the case was given as Giacona. The answer was written in the name of Giocchino. This answer was endorsed, however, by defendants’ attorney: Henry Lochte & Co. vs. S. Giacona.

Defendants’ clerks testify that they were informed at Lochte’s place of businessjthat the Giacona sued were Giacona & Son.

Despite all this, the defendants were not entirely free from all negligence.

By referring to the petition in the case, in question, the defendants’ agents would have obtained correct information as to who had been sued.

They are not justifiable, in view of this fact, in having made a report such as they made to their subscribers.

The similarity of names was sufficient to mislead an ordinary person, but defendants’ agents, presumably, are experts in the business and fully understand the importance of making correct reports, and of training themselves in securing information without injuring any one needlessly. Their office is, to assist commerce, and facilitate as well as promote business without injuring any one’s credit.

With reference to these companies, the rule is that publishing of a tradesman that he has been sued, if true, is not actionable; but if untrue, and is owing to negligence, it may give rise to an action.

There must, however, be actual injury shown.

In a case (in the State of Maryland) in which the present defendants were defendants, the court held that the alleged libel, similar to the libel, here contained nothing actionable per se; and that all proof of general damage to the business and credit of the plaintiff by the publication was properly excluded.

Here the record does not sustain any claim for general damages; there is no pr.of upon which to base a judgment for such damages. The amount of plaintiffs’ business is not shown with any certainty, and no attempt was made to prove the extent of damage to his business as a whole. If any damages are due they are special damages. Only compensatory damages can be allowed at all.

Another objection is interposed which is sustained by the fact that the plaintiffs never went to the defendants to complain. They did not seek to minimize any damages they allege that they have suffered. In a case such as here, one in regard to whom an untrue report is published should take seasonable steps to correct the error. It would have been reasonable to call on defendants for explanation and correction of the erroneous report. None the less, negligence on plaintiffs’ part after the injury by which it is aggravated will not bar them from recovering damages for so much of the' injury suffered prior to the negligence. And here we will state that under the proof made the damages must be limited in amount.

Immediately after the publication several merchants refused to credit the plaintiffs, but the amount of damages occasioned by this refusal is not clearly shown. It is evident that some damage was caused.

As relates to a few transactions it was attempted to trace the difficulties encountered to the publication of defendants’ lists. We have considered the whole testimony upon the subject, and fixed the damages in the amount stated in our decree.

It is therefore ordered, adjudged and decreed that the judgment and verdict appealed from be amended by reducing the amount of the judgment from four hundred and ninety-nine dollars to one hundred and fifty dollars and interest on the last stated amount in amount and date as fixed in the judgment of the District Oourt.

As amended the judgment appealed from is affirmed at appellee’s costs.