author: Nici-iolls, C. J. Blanchard, J.,

text:
    No. 13,835.
    Fernand J. Buisson vs. August Huard.
    Syllabus.
    The aspersions of the defendant upon the plaintiff’s character were neither just, nor well founded. In view of the fact, however, that he did not originate, nor volunteer the matters complained of, but made use of them in answer to enquiries made of him by interested parties, touching defamatory remarks made by other persons, the court holds him protected from an action tor damages under the rules which the court refers to governing privileged, confidential communications.
    APPEAL from the Civil District Court, Parish of Orleans.— Ellis, J.

      James J. McLoughlin, for Plaintiff, Appellee.

      Henry Ghiapella and Gustave V. Boniat, for Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nici-iolls, C. J.

The plaintiff charges that in April, 1900, in a public place, to-wit: the clerk’s office of the Criminal District Court for the Parish of Orleans, and in the presence and hearing of several persons, the defendant wilfully, maliciously and falsely stated to one C. A. White that petitioner was a thief; that he had stolen some money from a succession, and that he was unfit to associate with any respectable family. That in the month of August, 1900, the defendant stated, in his office on Carondelet street, and in the presence of said White, Charles A. Turgeaux, Laroque and Armand Demare, that petitioner was a thief; that he had stolen three hundred dollars from a succession; that he was a “erapule,” a “bon-a-rien,” and that he was unfit to associate with any respectable family. That petitioner was a young man,' twenty-five years of age, a native of New Orleans, where he had resided all his life; that he had since 1898 been'visiting, with matrimonial intentions, and intended to marry a young lady of that city. That said White and Demare were the brothers in law of said young lady. That said slanderous statements communicated by these persons to the father and mother of the young lady resulted in their excluding petitioner from their house and forbidding him from visiting their daughter and their daughter from seeing him, and preventing him also from continuing his attentions to her. That defendant made said statements slanderously and maliciously and wilfully, with the intention of injuring petitioner in character and reputation by making such statements public, and that petitioner had been injured in his character and reputation and had been prevented from associating with this young lady whom he had been so visiting, whose parents had since refused to permit him to visit their house; that these said slanderous statements had so poisoned the minds of the parents of the young lady and the parties to whom the statements were made that they really believed him to be what defendant so maliciously charged him with being, to-wit: a thief and a person of bad character. That said slanderous and malicious statements had caused him great suffering and anxiety of mind and had injured him as stated; that the extent of the injury was not less than five thousand dollars, for which he prayed for judgment, with interest.

After pleading a number of exceptions, which were overruled, defendant answered, after pleading first the general issue. He then averred that it was not true that he had made any statements concerning plaintiff, slanderously, maliciously and wilfully, with the intention of injuring him in character and reputation, by making such statements public as was alleged in the petition; that he entertained no malice towards the plaintiff, who was a distant relative of his, and that he had no motive, interest or objection to plaintiff’s entering into the family of the young lady mentioned, and marrying her. He averred that on a certain occasion in the month of March, 1900, he was sent for by the mother of the young lady, several of her sisters and a brother-in-law to call at the latter’s residence, and was there interrogated by the mother relative to a statement derogatory to plaintiff’s character and reputation which had been made by two young ladies belonging to defendant’s family, and, when asked to affirm or deny such statement, defendant had frankly and manfully admitted such and said that plaintiff had not acted honestly in the matter of certain succession proceedings in the Republic of Mexico, the winter before, when he had been sent there in the interest of the two young ladies who were nieces of respondent, and that he had drawn from the attorney of said succession in Mexico three hundred dollars of the succession funds, which he had appropriated to himself and could not legitimately account for; that he added that, to cover his said deficit and appropriation of the succession funds belonging to his nieces as heirs of said succession, he had rendered them an account which was false, illegal and extortionate. That at said interview no one was present but the mother of the young lady, one of her sisters and a brother-in-law; that the matter was strictly confidential and kept a secret between them.

That subsequently, in April, 1900, plaintiff having caused certain criminal proceedings tó be instituted in the Criminal District Court against the two young ladies, relatives of respondent, respondent having been summoned as a witness before the Grand Jury, one George A. White, a brother-in-law of the young lady to whom plaintiff referred, met respondent in the clerk’s office of said court and interrogated him on the same subject, and respondent then and there frankly and manfully repeated to said White what he had said in the private interview with the other parties concerning the rendition of the false account by plaintiff in the succession matter before stated, and produced and exhibited to him the written account of plaintiff which White then and there read, and respondent characterized the transaction as a swindling operation.

That no one was present at said interview hut White and himself, and that what was said was in the nature of a confidential communication.

That subsequently, in April, 1900, the said White, together with another brother-in-law of the young lady and Mr. Laroque Turgeau, called at respondent's office on Carondelet street and asked him to affirm or deny what he had said to Mr. White as before stated, and1 that respondent, while not desirous of doing injury to plaintiff or preventing his marriage, could not but reiterate the truthful statements concerning the succession matters in Mexico and the manner in which plaintiff had obtained and misappropriated the funds of the succession. That the matter was strictly confidential between all parties, and whatever severe expressions were used by respondent on this occasion in his own office, privately and outside of the presence of any person except the three interviewers, were provoked and solicited by them, and could not constitute a slanderous accusation or malicious publication with intent to injure the reputation of plaintiff. Respondent denied that plaintiff had suffered any injury from anything said or done by him, or that he was in any way connected with the frustration of his matrimonial designs, and in justification of his remarks concerning the falsity of the written account rendered, he annexed a copy thereof to his answer.

The District Court rendered judgment in favor of the plaintiff against the defendant for two hundred and fifty dollars, and defendant appealed. Appellee moved in the Supreme Court for an increase in the amount of judgment.

Opinion.

To come to a full understanding of the facts of this case, it will be necessary to go further back in dates than those which are referred to in plaintiff’s petition. The first ground of complaint against defendant which is set up therein is a conversation between defendant and George A. White at the Criminal District Court, in April, 1900. That conversation was the result of antecedent matters which have to be recited.

The plaintiff and the defendant are distantly related to each other, and up to the happening of the matters from which this litigation arose were on friendly and intimate terms. On one of tide visits of the plaintiff to defendant’s house a conversation took place in reference to some property in Mexico which had been inherited by two young ladies, nieces of’the defendant, who were inmates of his family. The interests of these young ladies were in the hands of an attorney in Mexico, but it was suggested by him that an American should be sent in their interest to Mexico to as&ertain the exact situation. The plaintiff was a young unmarried man, twenty-five years of age, a man evidently without much means, he being a reporter upon the States (newspaper), with a salary of six dollars a week. Plaintiff expressed a willingness, if not a desire> to go upon this trip, and his services were accepted. Before proceeding to Mexico, he went on to Washington to obtain a letter of recommendation from Senator McEnery and also to obtain other papers as were deemed necessary. On leaving New Orleans for Mexico, he took with him a letter written in Spanish by a friend of the young ladies to the attorney in Mexico, in which letter plaintiff was referred to as their cousin. The young ladies advanced him a certain amount of money for this trip. On reaching Mexico and conferring with the attorney of the succession, plaintiff ascertained that its value had been greatly exaggerated. That it consisted mostly of real estate in a remote part of the Republic which could not be easily disposed of. After remaining in Mexico .some-: — :— days, plaintiff returned to New Orleans, bringing with him a watch and some trinkets, but no money, and a very disappointing account of the situation. On reaching New Orleans he went at once to defendant’s house on a Sunday to see the young ladies and make a verbal report. In the course of the conversation which then took place he made known to them' that plaintiff, while in Mexico, had obtained three hundred dollars in Mexican money from the attorney (about-dollars in American money), to be charged to their account; that he had expended in various ways this money and that with which he had been furnished by the young ladies when he started on his trip, and a small amount which had also been forwarded to him at his request by a telegram; that he had returned by railway instead of part of the way by boat and that he had a small balance left.

The young ladies became very much excited and incensed on receiving this information, used violent and abusive language to him and made him leave the house. In the testimony of one of these ladies, taken on this trial, she said that she had then told him “If you don’t return everything you took, we will speak about it to everybody, especially the young lady you are courting”; that he said he would return it, but changed his mind afterwards. She testified further that she had mentioned it to everybody who had an interest in their affairs; that she told them “the American had robbed them”; that she went herself and told the sister of the young lady whom he was courting, and the same night he was refused the house. The other young lady testified: “My sister and myself went to see the young lady he wa3 courting and told her he had robbed us; told her what had happened, and that he had robbed us, and on the same night the lady put him out.”

Defendant testified that after this visit by his nieces the family of the young lady sent for him to know if his nieces were not mistaken; that he had said: “Unfortunately we had too much confidence in him, and what my nieces said is so; he acted dishonestly with my nieces.”

He testified that he had not volunteered to go to the family; that they had sent for him; that he went to the house of a brother-in-law of the young lady, and he sent for her mother and several of her sister3, and they requested him to tell them; he said he did not want to go, but they sent for him several times, and, after repeated calls, he went; that he said: “Yes, what I tell you is right; my nieces told you the truth.”

• It appears that after receiving the charges against plaintiff, he was forbidden to visit the house until he should have exonerated himself.

With that object" in view, he wrote a letter to the foreman of the Grand Jury, making him a statement of what had occurred from his standpoint. The letter closed by saying: “As a means of vindication I earnestly and respectfully request your honorable body to summon before you these parties” (naming the nieces of the defendant and the mother of one of the sisters of the young lady referred to), “and to take their sworn statements concerning the matters hereinbefore set forth, and, if they prove, in law, to return a true bill of indictment against me for whatever offense may be shown, in order that I may 'answer in open court before a. jury of my fellow citizens and demonstrate my entire innocence of any dishonest act or wrong-doing in the premises and thus reinstate myself in the opinion of those whosa esteem I value, and if the said sworn statement prove insufficient for an indictment, I pray your honorable body to make that fact public by "the return of no true bill against me. I being willing to undergo the appearance of a pending criminal prosecution against me for Ü.S.sake of clearing my good name rather than a criminal prosecution or a civil suit against the women who have inflicted this wrong upon me.”

The Grand Jury seem to have taken no action further than summoning defendant’s nieces. Defendant himself and the wife of .George A. White, who was a sister of the young lady referred to. Plaintiff and defendant and Mrs. White seem to have been the only ones who went before the Grand Jury. It would appear from the testimony taken on the trial that up to that time defendant and his nieces were under the impression that plaintiff was seeking to have an indictment returned against the latter. George A. White accompanied his wife to the office of the Clerk of the Criminal District Court, and, while he and the defendant were sitting there (defendant waiting to be .sent in to the Grand Jury room as a witness) the subject-matter of plaintiff’s conduct was brought up between these two.

Referring to the conversation, White testified that they were talking first of business, and then the defendant told him that plaintiff was a .little thief; that he had stolen the scucession of his nieces. That the ladies who had been summoned as witnesses and one other lady were iu the room; they were about twenty feet away; the conversation was not ■loud enough for anyone to have overheard it; he did not go there by appointment; he went to accompany his wife.

Who started this conversation does not appear. We should judge from defendant’s testimony that at some time prior to this White had called at defendant’s house and spoken to him about the matter, and asked him if what his nieces had told him was correct; he did not volunteer a statement to Mr. White; that he did not want to speak of the matter. He testified.that he had never spoken to any one of the matter other than to the interested parties themselves, who came to him and begged him to tell them if it was true. White knew, in the clerk’s office, what the matter was for which the parties were there; defendant showed him at the time the account which plaintiff had preserved, saying: This is an honest man’s statement. Do you call this honest? Two suits of clothing, room rent, underwear, socks, etc.” That White read a part of the account, but not all, as he (witness) was called into the jury room.

He testified, further, that subsequently to this George White and Mr. Desmare (two broth'ers-in-law of the young lady) and Mr. Laroque Turgeau called on him at his office on Carondelet street, and asked him to talk about the matter, and 'he said: “ Look here, now, if you care to speak about that man, I won’t be bothered; he is not really worth talking about.” They insisted that they came as amicable parties, saying: “We only want to know if what Mr. White told us is so; we don’t come here for anything else”; that he said: “That he did not care to talk about it; he did not volunteer any remarks to these parties. lie said he had no malice against plaintiff; did not desire to injure him; had no interest in preventing his marriage, and had no knowledge that his nieces proposed saying anything about the matter to the young lady or her family; that he spoke only when called on by the family.” In answer to a question how it was if' he had no interest in breaking off plaintiff’s marriage, he spoke to the family about the matter as he did, he said: “You want my nieces to be liars to that family? I said my nieces were right in saying so; I couldn’t say otherwise when he robbed them of $300.”

From the testimony it appears that White must have stated to some one that defendant had made charges to him against the plaintiff, and this fact had been denied; that White, deeming his veracity at issue, called with Laroque Turgeau and Desmare upon defendant and got him to admit the fact that he had made such statements to him. That defendant was reluctant to talk upon the subject, but, as the matter seemed to be talcing the shape of simply saying whether he had spoken to White as the latter had declared he had spoken, defendant admitted the fact; thereupon the parties left, and shortly after this Suit was brought.

The defendant claims that plaintiff’s demand is neither just nor well founded; for, whatever he may have said of the plaintiff was protected from being made the basis of an action for damages by reason of being privileged and confidential communications.

Newell in his work on Defamation, Slander and Libel, under the heading of Privileged Communications, Chapter 19, p. 388, defines a privileged communication to be one made in good faith upon any subject-matter in which the party communicating has an interest or in reference to which he has or honestly believes he has a duty to a person having a corresponding interest or duty and which contains matter which without the occasion upon which it was made would be defamatory and actionable. The occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff and puts upon him the burden of proving that there was malice; in short, that the defendant was actuated by motives of personal spite or ill will, independént of the occasion on which the communication was made. A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or proper cause when so made in good faith. The law does not imply malice from the communication itself as in ordinary case3. Actual malice must be proved before there can be a recovery, and in the absence of such proof it non-suit should be granted.

Privileged communications are of two kinds, absolutely privileged or communications qualifiedly privileged.

Complete immunity is confined to cases where the public service or the due administration of justice require it. In less important matters, where the interests of the public do not require that the speaker should be freed from all responsibility, but merely requires that he should be protected so far as he is speaking honestly for the common good, in these the privilege is said to be qualified, and the plaintiff will recover in spite of the privilege if he can prove that the words were not used bona fide, but that the defendant availed himself of the privileged communication wilfully and knowingly to defame plaintiff.

. Notwithstanding the words are used on a privileged occasion, plaintiff can still be heard to say that the defendant did not act under the privilege; that he did not intend honestly to discharge a duty, but maliciously availed himself of the privileged communication to injure the plaintiff’s reputation. (Odgers on Libel and Slander, pages 168, 169 and 170.)

Among the occasions on which the statements of parties touching another person are protected as a privilege qualifiedly are: where the circumstances of the case aré such as cast a duty upon the former of making them in the bona fide performance of such duty;'These communications may be made sometimes to an entire stranger, sometimes to parties between whom and themselves there are intimate relations of friendship, sometimes they may be made under a sense of duty to his own family or to himself. The same words which uttered to one person may be held privileged, might not be so held when uttered to another.

The duty referred to need not be a legal duty. Any moral or social duty of imperfect obligation will suffice. It is sufficient if lie honestly believe that he has a duty to perform in the premises, though it may turn out that the circumstances were not such as he reasonably concluded them to be. lie must, however, have believed in the truth of his statements at the time he made them. If a man knowingly makes a false charge against his neighbor, he cannot claim privilege. It never can be his duty to circulate lies. Even when a man, in making statements, is acting under a strong sense of duty and believing in their truth, he should not be led away, even by honest indignation, into exaggerated or unwarrantable expressions, for the privilege extends to nothing which is not justified by the occasion. (Odgers, pp. 179 ei seq.)

As illustrative of the different circumstances under which communi■cations may be held so privileged, decisions can be cited declaring that ■statements made by a judge in the performance of his duty are privileged, so are those made by a witness while giving testimony, but statements made by a witness while wallsing about the court, or before or after he, has given his evidence, are not privileged. (Odgers, p. 175, citing authorities.) That, while a father, guardian or intimate friend may warn a young man against associating with a particular individual, or may warn a lady not to marry a particular suitor, it would be under the same circumstances considered officious and meddlesome if a mere stranger gave such warning. (Odgers, 191, 192.)

A fact having a very great influence in the determination of the question as to whether a particular communication is of a privileged character or not, is whether it was made in answer to enquiries made or as a volunteered statement.

Where once a confidential enquiry is set on foot and communications are made thereat of a privileged character, those made at subsequent interviews between the parties, it has been held, will be privileged so long as what takes place thereat is still relevant to the original inquiry. (Odgers, p. 186; Am. and Eng. Ency. of Law, Yol. —, p. —.

It has also been held that, if, after having made statements derogatory of the character of another, a party is called upon at the instance of that person to admit whether he had made such statements, and he acknowledged having done so, no action can be brought for the acknowledgement, but the party injured must sue for the words previously spoken and use the acknowledgement as proof that these words had been spoken. But if, besides saying yes to the question asked, he repeats the words in the presence of a third person, asserting his belief in the accusation and that he can prove it, such a statement is slanderous and not privileged, though elicited by the plaintiff’s question.

Keeping these general principles in view, we have reached the conclusion that, under the evidence, the charges made against the plaintiff in the various interviews were entirely unwarranted by the facts of the case; that the plaintiff was guilty of no dishonest or wrong doing; that whatever difference of opinion may have existed between the parties as to the extent of plaintiff’s powers in the premises, and the correctness of his accounts and his expenditures, were not of a character to give rise to any charge of criminality, but at most should have been adjusted by a civil proceeding after full and cool discussion.

Had these differences been between the plaintiff and the defendant, and he had thereupon followed the qourse which his nieces pursued, he would unquestionably have subjected himself legally to a claim for damages at the hands of the plaintiff.

In seeking out the family of the young lady and making the charges which were made and causing plaintiff’s engagement to have been broken off, his action in the matter would not have been by way of warning in the interest and for the good of the young lady. The motive and feeling inspiring the act would have been one of resentment against the young man and the object in view to punish him. That course would have been indefensible.

But the defendant came into this controversy as a third party, drawn and almost forced into it by reason of the relations with the parties primarily concerned. He could not avoid the situation. He was certainly placed in a very trying position. The wrong shown was done prior to his connection with the matter by parties for whom he was not legally responsible, though they were his relatives. It is possible that had he repudiated the acts and statements of his relatives, the wrong and damage might have been undone, but of that there is no certainty. He declined, however, to render any assistance in this direction and sustained his nieces. Whether he actually reached the same conclusions touching the plaintiff’s conduct which they had reached, is a matter we ourselves cannot determine. The furthest we can go in that direction is to say that there was, in our opinion, no legal basis for these conclusions; that they were exaggerated and expressed in extravagant terms.

But plaintiff does not base his cause of action on what was then said. In his petition he does not go back of what the defendant told White on the occasion of their being together at the office of the Clerk of the Criminal District Court. Who commenced the conversation at that time relatively to the plaintiff does not appear. In the absence of explicit testimony on that subject, we must assume it was White. That conversation was not the initial conversation between those parties on that matter. It was a resumption of a prior conversation which had occurred at defendant’s house in an interview which had evidently been sought by White. The conversation at the court was between the same parties on the saíne subject, with no other than themselves hearing or taking part. The communications had the same character as those made at defendant’s house. If the defendant was liable for anything which he said on either of those occasions, the liability rested entirely on his exaggeration of the facts of the ease and the wrongful conclusions.

We next come to the interview at defendant’s office, between White, Desmare and Baroque Turgeau and the defendant.

That interview was brought about by White, who having repeated to one of his sisters-in-law (doubtless the young lady, Miss Blanche) what Huard had told him about the plaintiff, found his truthfulness called into question, and, with a view of establishing the fact that Huard had made the statements which White had attributed to him, White, accompanied by Desmare and Turgeau, whom he got to go with him, went to the defendant’s office. They went there, according to Mr. Turgeau, to confront Mr. Huard. The latter was reluctant to say anything about the matter, but being pressed, admitted that he had made statements to Mr. White as the latter had declared he had. The statements themselves seem to have been then and there repeated, but whether Mr. White had insisted that Huard should not only admit that he had “made statements,” but recite what those statements were, so far as to verify the correctness of what he had reported to his sister-in-law, does not appear. It is very probable, most likely, that he did so at White’s instance. Tt will be seen that this interview was between Turgeau, Desmare, White and the defendant, the only “third party” present being Turgeau, who had been asked by White to accompany him as a “witness.” Desmare was one of the brothers-in-law, and must evidently have known everything connected with the matter before he went to Huard’s office. We have given this ease careful con.sideration, for we are of the opinion that the plaintiff has been much wronged and damaged, but, after considering this unfortunate family matter in all its hearings, we have come to the conclusion that the wrong and damage done to plaintiff was really done by other parties, for whose acts he, Iiuard, should not be held liable. Doubtless out of consideration he has sued the wrong parties.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected and his suit dismissed with costs in both courts.

Blanchard, J.,

dissents, holding the plaintiff is entitled to a judgment for some amount.

Rehearing refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,976.
    Mrs. Mannette Ray and Husband et als. vs. L. D. McLain et als.
    Syllabus.
    3. . All the heirs of a testate succession being sui juris and being, at once, heir* at law and testamentary heirs, may ignore the will and divide the estate as they please, and if, with their consent and acquiescence, such estate Is administered by an administrator, instead of an executor, they cannot be heard, to the prejudice of the rights of third persons, acquired as the result of such administration, to object that the proceedings and orders, In which they participated and of which they availed themselves, were irregular and Illegal.
    ,2. Nor can such heirs, at whose'instance, or with whose consent, an administrator has been appointed,, for two successions, the-one testate and the other intestate, and who, by written instruments, have ratified, confirmed, and approved the acts of such administrator, including sales, made by order of •court, at his instance, and have, by such written’instruments, authorized him to proceed, and, with the money realized, pay and compromise certain claims pending against themselves, be heard, after the sales have been made, and the money received and disposed of as thus authorized, to attack the titles of - the purchasers, on the grounds that the successions had been closed and that , the appointment of the. administrator was illegal.,
    APPEAL from the Sixth Judicial District, Parish of Ouachita.— • Hall, J...... ‘ '

      Andrew Augustus Guriby and E. Tyler Larrikin, for Plaintiffs, Appellants; • ’

      William Francis Milsaps, for Uriah and Mrs. Alice B.. Milsaps, Tutrix, Defendants, Appellees.

      Hudson, Potts & Benstein, for McLain, Defendant, Appellee.
   The opinion of the court was delivered hy

Monroe, J.

The plaintiffs, Mrs. Mannette Bay, wife of Bobert Bay, Jr., Mrs. Lillie McCormick, wife of J. H. McCormick, Mrs. Myra O. Bay, wife of John B. Bay, and the minor, Leeta Bills, represented by E. H. Bills, her father and tutor, claiming as heirs, and as the transferees of other heirs, of their deceased grandmother, Thankful B. Bry, bring this, petitory, action, to recover an interest in land constituting the site of the town now known as West Monroe, in the Parish of Ouachita. The defendants are L. D. McLain, Uriah Milsaps and Alice B. Milsaps, tutrix of the minor Ered Elournoy Milsaps, only son and heir of Thomas E. Milsaps, deceased, for whom there was judgment in the District Court, from which the plaintiffs have appealed. The facts disclosed by the record are as follows:

Mrs. Thankful B. Bry, wife, separate in property, of Henry M. Bry, and grandmother of the plaintiffs, died in 1871, leaving a will, whereby she bequeathed the usufruct of her estate, including the land here claimed, to her husband, and the naked title to her children and grandchildren then living. This will was admitted to probate, and the surviving husband, having qualified as executor, entered into possession as usufructuary, and so remained until he died, intestate, in August, 1880. Upon the death of Henry M. Bry, C. D. Bry, his son, was appointed administrator of his succession, as also of the succession of Thankful B. Bry, his (C. D. Bry’s) mother, upon his giving a bond, which was signed by most of his co-heirs, including all the parties to this suit (the mother of the minor, Bills, then Mrs. Hardy, signing for herself, and E. H. Bills, who appears in the petition herein filed, as the tutor of said minor, signing said bond in his individual capacity), and he administered said succession until his death, in June, 1881.

In the meanwhile, upon October 11th, 1880, there had been a partial partition between the heirs, including all those now before this court, by means of a notarial act, which, after giving the names of the parties ■thereto, contains the following, among other recitals, to-wit: “And the parties aforesaid to this act have entered into and do hereby enter into the following contract and agreement of partial partition of the succession of their late ancestors, Henry M. and Thankful R. Bry, deceased, opened in the Parish of Ouachita, said State. Whereas, in the present state of said succession it is uncertain what the proportion of each of said parties therein will be, now, in order that each of said parties may enter, at once, upon the enjoyment of part of said inheritance, it is mutually agreed and covenanted as follows” (then follows a distribution of real estate, not, however, including that herein claimed, to the different heirs named and participating, after which the act proceeds) : “In order to fully secure the creditors o'f said succession, the administrator thereof and his bondsmen, against possible loss on account of this partial partition, the parties to this act, each of them, do hereby mortgage and hypothecate said property by him received and to him by this act conveyed for the full amount of the price at which each of them received said property, in favor of the- succession of Henry M. and Thankful R. Bry, said mortgage to remain of full force and effect against said property until the final settlement of said succession, and for any balance that may be shown to be due by said final settlement against any one or all of said parties, until said balance shall have been fully paid.” And the various amounts for which the mortgages are granted by the parties upon the property distributed to them, respectively, is then specified.

Upon the death of C. D. Bry, J. K. Stewart, the husband of one of the daughters of the decedents, was appointed to succeed him as administrator, and he gave bond, which bond was signed by T. M. Rills, mother of the minor Rills, aided by E. H. Rills, her husband; by Lillie McCormick, aided by J. H. McCormick, her husband; and by Julia Manette Ray, aided by Robert Ray, Jr., her husband, as sureties. Shortly after this appointment, an account of O. D. Bry’s gestión, showing an incomplete administration, and purporting to turn over the assets of the two estates to his successor, was filed by his widow and executrix, and, after due advertisement, was homologated. In March, 1883, Stewart filed his final account, which was likewise homologated by judgment of date April 19th, 1883, whereby, also, the administrator was discharged and his bond canceled. Thereafter, upon March 10 th, 1885, F. P. Stubbs, at the solicitation of all the heirs who were in or about Monroe at that time, including, as we think likely, all the plaintiffs in this case, filed a petition, claiming to be a creditor of the two successions, and particularly of the succession of H. M. Bry, alleging that there remained considerable property which had not been administered or disposed of, and praying to be appointed administrator; and, after due advertisement of the application, he was so appointed. He thereupon caused an inventory to be made, which included, as not having been administered, the property here claimed, which inventory was participated in by E. H. Eills, and J. H. McCormick, acting in the capacity of appraisers. This was followed by applications to sell the property inventoried to pay debts, and by orders to that effect agreeably to which, after due advertisement, said property was sold by the sheriff in different lots to different purchasers on May 2nd and May 30th, respectively, of 1885; the defendants, that is to say, Milsaps brothers, composed of Uriah and Thomas E. Milsaps, and L. D. McLain, becoming the purchasers of the property in controversy, deeds to portions of which were executed by the administrator of dates June 1st and 13th, 1885, respectively. Upon May 28th, 1885, whilst these proceedings were in progress there was executed an instrument in writing, which, so far as it need be quoted, reads as follows, to-wit:

“Parish of Ouachita. ) “State of Louisiana, )
“This memorandum shows that we, the heirs and representatives of the late Henry M. Bry and his wife, Thankful E. Bry, deceased, to-wit:
“1st. Mrs. Lillie McCormick, in her own right and as owner of the interests of Henry B. Williams and Mrs. Clara Bry Smith, authorized by her husband, Joseph H. McCormick; Frank Oauthorn and Mrs. Myra Oauthorn Eay, represented by their agent and attorney in fact, Joseph H. McCormick;
“3rd. Mrs. Thankful R. Rills, wife of E. H. Rills, represented by her husband;
“5th. Mrs. Louise Beeson, represented by her attorney and agent, H. H. Russell, and,
“6th. Mrs. Nettie Ray, wife of Robert Ray, Jr., represented by her attorney, Robert Ray, Sr., Esq. (these two last, however, acting subject to the approval of their respective principals), declare that they are the sole heirs and representatives of the estate of H. M. and T. R. Bry, now authorized to participate' therein; that the heirs have heretofore had partial partition among themselves, and that C. D. Bry and John K. Stewart, as administrators, have, respectively, and partially administered the estates and paid a portion of their debts. That considerable property, real estate as well as some personal rights and property belonging to the estates, were not sold by either Bry or Stewart, administrators, nor have the heirs taken possession of or partitioned the same among themselves, but that same have been left in the succession to be administered and sold for the payment of the unpaid liabilities of the succession. That the debts of the estates remaining unpaid but liquidated now exceed six thousand dollars, including the judgment in the case of Mrs. C. L. Bracey el als. vs. Mrs. M. M. Calderwood, with the judgment and obligations of warranty against the estates of íl. M. Bry, T. R. Bry and their heirs. That F. P. Stubbs is also a creditor of the estate, and that, for the purpose of paying the remaining debts of the succession, the heirs requested and induced the said Stubbs to open the succession and administer upon the unsold property, whereupon he applied for and was appointed such administrator, causing inventories to be made of the property unsold and undivided; and, further, having obtained orders of sale to pay the debts, the property (real) on said inventories has been offered, and a portion, on the first Saturday in May, having been sold, for cash, the balance not selling, it is to be offered on twelve months’ credit on Saturday, the 30th inst. Now, some parties having undertaken to question the right to reopen the succession, or to sell the property as that of the succession, claiming that it could only be administered by the heirs, now, one of the purposes hereof is to put in writing the facts that we severally ratify and approve the acts of the said administrator, F. P. Stubbs, as legal and proper and in accord with our wishes and interests, and that we confirm and approve all sales made heretofore by said administrator and all that may be made at the prospective offering on the 30th instant. And, further, being induced to believe that the principal debt against the estate, to-wit: the Bracey judgment and claim in warranty, amounting to five thousand dollars, without interest, can be compromised and settled for about two thousand dollars, we, not having the means, but being satisfied that such a compromise would be very advantageous to the interests of the estates and the heirs, we, severally, request the administrator to use the proceeds of the sales of the property of the estates, whether cash, notes or bonds, for- the accomplishment of this purpose, and agree and bind ourselves,, as heirs of the estates, to ratify all of his acts in the premises, and join him in an application to approve the same on his filing an account of his administration.”

One instrument of this kind was signed by Lillie MeOormiek and by J. EL McCormick, her husband, to authorize her, and also as the agent of Frank Cauthorn and Myra C. Ray; by Robert Ray, attorney in fact for Nettie Ray, wife of Robert Ray, Jr.; by Hannah B. Stewart, and J. K. Stewart, her husband, to authorize her; by T. M. Rills and E. H. Rills, her husband, to authorize her; and by Mrs. Louise V. Beeson, through her attorney in fact, H. H. Russell; and other such instruments in identical language were signed separately by Frank Cauthorn and by Myra C. Ray and her husband John B. Ray, to authorize her, these parties being all the heirs of the estates and of full age.

In the month of June, following the execution of the foregoing, Mrs. Manette Ray, one of the plaintiffs and appellants now before this court, who had moved to New Orleans some time in 1883, with the authorization of her husband, executed another instrument, prepared by Judge Robert Ray, Sr., her husband’s uncle, and presented to her for that purpose by John Ray, her husband’s father, which reads as follows:

“State of Louisiana, ] “Parish of Orleans. f
“I, Julia Manette Hazleton, wife of Robert Ray, Jr., resident of the said parish and State, said Robert Ray, Jr., authorizing his said wife herein to sign, do hereby nominate, constitute and appoint Robert Ray, of Monroe, Ouachita parish, La., our attorney in fact and in law, and hereby authorize and empower him to enter into any transaction or compromise touching or pertaining to any lawsuit or lawsuits that we may be interested in, in any way, in the Parish of Ouachita, and I further ratify his act in signing for me, as my attorney in fact, a certain instrument in writing whereby the heirs of Bry and Mrs. Bry ratify all the acts of F. P. Stubbs, as administrator of the estates of Bry and Mrs. Bry, and authorized the said Stubbs to compromise the Braeey Calderwood matter between said heirs, and to do all other things for me that may become necessary in the premises touching any and all my business in said parish and State. In testimony whereof said parties have signed their names in the presence of the undersigned witnesses on this-day of June, 1885.
(Signed) Julia Manette Ray,
Witnesses: Robt. Ray, Jr.
John Ray.
Jules Lapeine."

The two witnesses are dead, but their signatures are proven, and, whilst the plaintiff, Mrs. Ray, testifies that Jules Lapeine was not present at the time, she admits that she and her husband signed the instrument in the presence of John Ray, her husband’s father, the defense relied on being that she did not read the said instrument and was under some misapprehension as to its contents. Thereafter, for fifteen years, the defendants appear to have heard nothing to the prejudice of the title which they had acquired, and the plaintiffs do not appear to have molested them, or to have concerned themselves about the property, either by paying taxes or otherwise, until they brought this suit. The Bracey-Calderwood matter, referred to, arose out of a suit brought by Mrs. Bracey against Mrs. Oalderwood in which the latter called the heirs of II. M. and T. R. Bry in warranty., - Some of the heirs, and among them, Mrs. Rills and Mrs. McCormick, were cited personally and appeared and answered. But Mrs. Mira O. Ray was not made a party to the suit, and Mrs. Manette Ray had, about that time, moved to New Orleans, and the citation addressed to her was served at her last place of residence in Monroe, and she denies having received it, 'and made no appearance. She was, however, included in the judgment rendered in April, 1884, against those who appeared, and was condemned for one-half of' one-seventh of the whole amount awarded, which was five thousand dollars, with interest, and in October, 1884, there was execution against her, under which certain property in Monroe, which she had received in the partial partition of the estates of her grandparents, was seized. This appellant has introduced two letters from Judge Ray, one to her husband and the other to her husband’s father, in which the writer says, iwSter alia, under date February 3rd, 1884:

“I have looked into the Bry matter, and find that they are all as anxious for a partition of the balance of the property as you are, but something has-always prevented it, but'I think it will take place soon. I have also examined the Bracey matter, and am afraid the estate of H. Bry will have to pay; also their pro rata of the Jas. S. Eay bond. Neither affects Mrs. Bry’s estate. It would be unadvisable and out of the question for Nett to take any legal steps, as set forth in Pa’s letter to me last Nov., which I only received the other day.”

Under date November 16, 1884, to the plaintiff’s father-in-law, the writer says:

“I want to write you now something about Nett’s matters here. You know that a judgment was obtained some time ago against the Bry heirs for $5,000, and Nett’s portion of that was one-half of one-seventh. The other day, Mrs. Calderwood, who obtained the judgment against them, as warrantors, issued execution against each one, individually, and under the fi. fa. against her” (her) “home and lot was seized, together with the rents. I immediately obtained an injunction stopping the advertisement and sale, on two grounds; 1st, that no notice of seizure had been giyen her; 2nd, that Mrs. Calder-wood, who was a warrantor herself, had paid Mrs. Bracey nothing. * * *
“I have done all this on-what you wrote me, to attend to anything that affects her interest. The injunction may be tried in January. I wish you would tell her what I have done, and send me a power of attorney, dated about the 1st of August, so as to cover my authority to act for her in this injunction.”

Opinion.

The grounds upon which the plaintiffs appear to rely for the recovery of the property claimed by them are: That the succession of their grandmother, to which it belonged, was a testate succession and could not legally have been placed under the control of administrators, and, hence, that the administrations of C, D. Bry and John K. Stewart were illegal; that, if the validity of those administrations be recognized, nevertheless they were terminated before any sale of the property in question was made, and the title to said property had vested in. the heirs, and that the subsequent appointment of F. P. Stubbs, as the administrator of successions which had already been closed, was wholly unauthorized and without legal effect; and, finally, that the succession of their grandmother owed no debts, and its property could not legally have been sold to pay the debts of her husband’s succession.

There -are several defenses set up, and among them the plea of estoppel, which we find conclusive of the case,

Upon the death of Henry M. Bry, his heirs and those of his predeceased wife were all of age, and they thought fit to deal with the property which they had inherited by means of an administrator appointed by the court for both successions. That the plaintiffs in this suit were agreed upon this, and participated in the proceedings, is shown by the fact that they, personally (with the exception of the minor, Rills, who was represented by her mother, through whom she inherited, and by her father, who appears for her in this suit), signed the bonds of both C. D. Bry, their uncle, and John K. Stewart, their uncle by marriage, as the successive administrators, and by the further fact that they recognized such administration in the act of partial partition entered into by them, and specifically bound themselves, and the property which they thereby received, with reference to and for the benefit of such adminisl ral ion. As the actors were at once the sole bepeficiaries of the will of their grandmother, and her heirs at law, and might have ignored such will entirely, and have distributed her estate to suit themselves, we can conceive of no reason why they should not have proceeded as they did, more particularly as they obtained the sanction of the court (having both general and probate jurisdiction) in which both successions had been opened; nor can we conceive upon what principle of law or logic they now undertake to impeach the validity of proceedings conducted and of orders and judgments provoked by themselves.

Equally is this true of the subsequent administration. Let it be assumed, for the purpose of the argument, that a succession is closed when an administrator obtains his discharge, though he has not paid all the debts or administered all of the property, or formally turned over the succession to the heirs, there is nothing in our law to prevent persons who own property in common, which is burdened with obligations, or, whether burdened with obligations or not, from appealing to a court of competent jurisdiction to aid them in the settlement of their rights with respect thereto, and from obtaining recognition of a common representative, selected and authorized by them, for that purpose. There is nothing immoral in such a course, and it has been sanctioned by our law and jurisprudence from time immemorial Whether the representative so selected and recognized is called an “administrator” or “receiver,” or is designated by some other title, is wholly immaterial. The only question to be inquired into in such a case, and in the absence of objection or complaint from some third person, is whether such representative has kept within the limits of his authority and has faithfully discharged the functions for which he was employed. In the case at bar, the person who acted for the plaintiffs and their co-heirs, or co-owners, has testified that he did so at the solicitation and with the approbation of the heirs present, and no witness has testified to the contrary. There is not even a suggestion that the heirs of H. M. Bry were not liable for their proportion, amounting to over $700, of a certain judgment which had been obtained by the United States government in a suit defended in part by the father-in-law of Mrs. Manette Ray, against II. M. Bry and other sureties of Tas. S. Ray, receiver of public money, or that it had been paid at the time of the appointment of the administrator. It is not and cannot be denied that Mrs. Calderwood obtained judgment contradictorily with all the heirs whom she could reach, holding -that they were liable, for an aggregate sum of $5,000, upon the warranty of their ancestor, and that she issued executions thereon and seized property acquired by some of them in the partition of their grandfather’s estate. And it was at this conjuncture that the suggestion was made, and acted on, that other property belonging to the debtor should be utilized by means of the proceedings which are now attacked, for the payment of said claims. It is not suggested that the property in question would have brought a better price if it had been sold in some other way, ov .that the proceeds of the sale were not faithfully accounted for. As a matter of fact, the debt arising from the judgment which had been obtained by the government was paid as it had to be; the Calderwood claim, amounting to $5,000 and interest, was compromised for $2,000, and the administrator, who had acted in the matter at the request and in the interest of the debtors, filed his account, showing what disposition had been made of the balance of the proceeds, and, no opposition being made thereto, said account was approved and homologated by judgment of court. But, in the meantime, and pending the sales of property, which were being made at the instance of the administrator, but by the- sheriff, acting under orders of court, and after due advertisement, the question which is being now raised, i. e., as to whether, under the circumstances, the appointment of the administrator was competent, suggested itself, or was suggested, to the parties in interest, and they undertook to set it at rest by executing a written .instrument in which they declared that they knew and approved and •authorized all that had been done, and that was yet to be done, in order to obtain the necessary means and therewith settle -and compromise the claims which have been mentioned. And, after this instrument had been executed, certain of the property was adjudicated to E. IT. Rills, who appears here as tutor of the minor, Leeta Rills, and he gave in liquidation of the price a twelve months’ bond, signed by Mrs. McCormick, another of the plaintiffs, as surety, and it appears from the account of the administrator that said bond was subsequently paid, with accrued interest.

It is claimed, on behalf of Mrs. Manette Ray, that she left Monroe in April, 1883; that she knew nothing of the appointment of Stubbs as administrator, and that she was not cited in and was not a party to the Bracey-Calderwood suit. The evidence which she, herself, has thought proper to introduce shows that, although she removed to New Orleans, as she states, she was, nevertheless, represented in Monroe by counsel, whose ability and loyalty to her she does not call in question. It also shows that she was advised by her counsel that she was probably liable for and would have to pay her proportion of the claims heretofore mentioned, and that, whether properly cited or not, she was condemned in the Calderwood judgment and her property in Monroe seized thereunder; and the evidence further shows that, in the injunction sued out in her behalf, no question of citation was raised. It further appears that, .after being thus informed and advised, she, with the authorization of her husband, an$ in the presence of her father-in-law and another witness, executed a written instrument, prepared by one or the other of them, whereby she authorized her said counsel, being the uncle of her husband, to compromise any lawsuit in which she might be interested in the Parish of Ouachita, and to do any other things that might become necessary touching any and all of her business in said parish, and specifically ratified his action in signing for her the instrument whereby the heirs of II. M. and T. R. Bry ratified and confirmed the acts of E. P. Stubbs, as administrator, and authorized ■said Stubbs to compromise the Bracey-Calderwood matter. She now asserts that she is not bound by this instrument, because she did not read it, and signed it in ignorance of its purport. We have only to say that the law does not compel people to read or to inform themselves of the contents of instrument's which they may choose to sign, but that, save in certain exceptional cases, it holds them to the consequences, in the same manner and to the same extent as though they had exercised those rights, and that the case presented is not within any of the exceptions. The defendants, whom this plaintiff is now seeking to hold responsible for her alleged ignorance, took no part in the execution of the instrument in question, and it is not pretended that any fraud or deception was practiced on her by her. own counsel and advisers, to whom and at whose suggestion it was given.

In Allen, West & Bush vs. Whetstone,” 35th Ann. 846, this court said: “There is not the slightest foundation for the defense, of error and fraud, set up by Mrs. Whetstone. It is not pretended that -plaintiffs practiced any fraud or did anything to lead her into error. The deed was prepared by her husband and presented to her for signature by him. If she failed to read it, it was her own fault, and plaintiffs cannot be affected by any error resulting from her gross negligence.” And in “Kerr et als. vs. Evershed,” 41st Ann. 18, the plaintiff, contending that he had signed an act of mortgage, through error, it was said: “If he read the act, there was no excuse for error; if he did not read it, such gross negligence would leave him still less excuse.” And to the same effect are the decisions in Watson vs. Bank, 22 Ann. 14; Keough vs. Foreman, 33rd Ann. 1339; Prescott vs. Cooper, 37 Ann. 553.

It will be observed that deeds to the property here claimed, or part Of it, were executed by Stubbs, as administrator, upon June 1st, and June 13th, 1883, pursuant to the adjudication which had been made, by the sheriff upon May 30th, preceding, and that the act of confirmation, ratification and authorization was executed in the meanwhile, to-wit: upon May 28th, 1883. And it is evident that the purpose and effect of this act was to bring about the consummation of the transaction and to secure from the purchasers the price of the property. If, at that time, instead of confirming what Stubbs had done and authorizing him to proceed, the plaintiffs had declared that he had acted illegally, and had declined to authorize him to complete the sales which had been made, or, if they had held aloof, it may be that the defendants would not have parted with their money; or, if at any time before the homologation of Stubbs’ account, in January, 1888, the plaintiffs, instead o.f expressing .in writing and for the avowed purpose of quieting the title which he had made, their approval of what had been done, intimated their disapproval, defendants might still have stopped .the money in his hands and have recovered it. But, by reason of the declarations of the plaintiffs and their conduct at the time, and of their conduct during fifteen years thereafter, the defendants were induced to pay for the property adjudicated to them, and to hold and deal with it as their own. But, suppose that the confirmation and ratification had not taken place until after the property had been sold and the proceeds distributed, it, nevertheless, remains that the plaintiffs have declared, in writing, that they knew of the sales and of the purpose thereof, and that they approved of the same and of the appropriation of the proceeds as having been used for the extinguishment of claims against them which they considered it necessary or expedient to pay or compromise.

Under these circumstances, they are estopped to question the titles of the defendants, and the other grounds of defense need not be considered. Judgment affirmed.

Rehearing refused.


author: Nici-iolls, C. J.

text:
    No. 14,094.
    Mrs. Felonise Arcenaux vs. Alexis Arcenaux.
    Syllabus.
    Where a charge of adultery, brought by a wife against her husband to obtain a divorce, rests entirely upon circumstantial evidence, which Is met by the direct testimony of the young woman (since married) with whom the adultery is alleged to have been committed negativing the presumptions invoked, the conclusion of the trial judge, who believed this testimony, will be accepted as correct.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu — Schwmg, J., ad hoc.

      Sompayrac & Toomer, for Plaintiff, Appellant.

      Pujo & Moss, for Defendant, Appellee.
   The opinion of the court was delivered by

Nici-iolls, C. J.

The plaintiff sought, in the District Court, to obtain a divorce from her husband, charging him with having committed adultery with a young white woman whom he had employed as a cook and to wait upon him. The evidence shows that the plaintiff and her husband had, for reasons not disclosed, been apart for a number of years; that the husband was living in a small house containing two rooms — a kitchen and a bed-room — in which there was but a single bedstead, but with three matresses upon it; that the young woman slept at this house, and on one occasion slept in the same room with the defendant, though upon different matresses, which were laid upon the floor.

On that particular night, a son of the defendant and a young man, who shortly after this married the young woman, were on a visit at the house. They slept in one of the rooms and the defendant and the young woman occupied the other, as has been stated. Defendant is about sixty-five years of age, the woman about twenty-three. Both belong to the humbler and poorer class of the community in which they live.

Upon the facts here stated; and others which are not deemed necessary to be specially referred to, plaintiff invokes in support of her demand the decisions of this court in Mehle vs. Lapoyrollerie, 16 Ann. 4; Klapper vs. Klapper, 49 Ann. 243; and the presumptions referred to in the Second Edition of the American and English Encyclopedia of Law, under the notes 2 and 3, on page 752.

In the case of Mehle, this court declared that positive or direct evidence was not necessary to establish adultery; that where, from the circumstances .proven, no other inference could be drawn, but that there was an improper intimacy or illicit connection between the parties, the fact of adultery, or concubinage, will be considered as substantiated. In the Flapper case this, court referred, approvingly, to those expressions, adding that “a simple presumption may prove a fact in cases such as that we have now under consideration as well as in other eases.” In the course of its opinion the court said it would not detail all the facts of the ease, but there were a number of incidents giving rise to one inference only. It mentioned, however, as one of the facts shown “that after the wife had been compelled to leave her home because of the ill and violent treatment to which she was subjected, a young girl and her mother were received in the house, the young girl sent away her mother, expelled her from the house, and remained alone under circumstances not suggestive of absolute innocence in her relations with the defendant. One witness testified she was cooking there. She was a housegirl and everything.’ ”

The quotations from the Encyclopedia of Law are to the effect that “adultery will be inferred where the parties occupied a room having but one bed;” that “it was possible, physically, that persons may be in the bed together without criminal intercourse; that courts of justice, howeyer, cannot proceed on such ground. Finding parties in such a situation as presumes guilt generally they must presume it in all cases attended with these circumstances.”

There are two classes of presumptions. The first-class are presumptions of law; known as presumptions “Jv/ris et de jure.” The second class are “presumptions of fact." Presumptions of law are those which by law are made to 'flow, necessarily and unavoidably, from certain established acts' or facts. Presumptions of fact are those which are not made by law to flow necessarily and unavoidably from certain established acts or facts, but which are left to the judgment and discretion of the judge, as to whether they shall be drawn or not from ■such acts or facts. Article 2288 of the Civil Code declares that the ■judge ought to admit none but weighty, precise and consistent pre.sumptiopsi”

•■ The plaintiff’s case rests entirely upon circumstantial evidence. Each ease of that kind must be determined upon its own special facts and circumstances, and no two are presented to a court under testi•mony precisely alike;

■ In considering the facts presented by one of the parties to an action, as acts leading up properly and logically to certain presupmtions, the court should not disconnect the facts themselves from the relations of ■parties 'to each other — their conditions and surroundings and all other •circumstances which tend to' throw a side light upon their character. ■We are not disposing of the case at bar upon an issue as to the re•finenient "or delicácy of feeling of 'the parties connected with this litigation, or' as to'their having or not a just conception of what a ‘sense of propriety would and should exact in the relations of the sexes with' each other. It may be conceded that they are wanting in •refinement and delicácy in this respect, .but it by no means follows ■from this fact that they áre wanting in virtue or morality. Many things áre permissible and give rise to no unfavorable comment in .'one community, and under certain conditions, which under different conditions and' surroundings would create scandal and ruin reputations.' It is a matter of' which' we all- have knowledge that in some portions of'the country, by stress of circumstance, women have been forced to -occupy continuously the same room with' men' without their virtue’being thereby called'into question. The situation in this case was certainly calculated' to give rise to grave suspicions, but the young woman involved went upon the stand as a witness and testified most positively to her innocence. She stated that defendant slept on a matress upon the floor, while she slept on the bed, and that he had no attractions for ¡her. The district judge who saw her and heard her and the other witnesses testify, and who, doubtless know her and the witnesses and the parties, believed her and the witnesses, whose testimony broke the force of that adduced on the part of the plaintiff, and we are not prepared to say that he erred in his conclusions. The fact of a man and a woman occupying, as these two did, the same room one night, was evidently not supposed by the parties to have carried with it the idea of criminality, for the act was done openly in the presence of two young men, one a son of the defendant himself, the other a young man whose faith in her chastity remained unbroken, as he subsequently married her. We cannot judge the acts of all persons by an unvarying standard. We must take into the account differences of class, of associations and of manners. Into this particular action matters of this kind enter as factors. The fact that the young woman whose good character is involved in this litigation took the stand in her own behalf, and testified as she did, removes the case from those which are determined simply on presumptions.

Eor the reasons assigned the judgment appealed from is, hereby, affirmed.

Eehearing refused.