text:
    No. 9153
    Orleans
    PERE v. DALGARN, Appellant
    (February 1, 1926. Opinion and Decree)
    (February 15, 1926. Rehearing Refused)
    (March 30, 1926. Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Obligations—Par. 7, 8, 9.
    When a merchant, on request, sends a customer a price list, and the customer then orders goods in accordance with said price list, there is formed between them a contract for the price and upon conditions mentioned in said price list ^binding upon both until the merchant announces a change of mind expressly or impliedly.
    2. Louisiana Digest—Sales—Par. 240, 250.
    A buyer who has used the thing cannot sue for redhibition, but he may claim a diminution of the price, for vices or defects.
    3.Louisiana Digest—Sales—Par. 250, 252. Prescription—Par. 93.
    A purchaser sued for the price, may claim a diminution for defects or vices notwithstanding the prescription of the action quanti minoris.
    Appeal from the Civil District Court, Division “A”, Hon. H. C. Cage, Judge.
    Action by H. J. Pere against L. M. Dalgarn for collection of an open account.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    . Sol Weiss, Weiner, Yarrut and Stich, of New Orleans, attorneys for plaintiff, appellee.
    Hubert M. Ansley, of New Orleans, attorney for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is a suit on an open account.

The plaintiff avers that he is the assignee of the claim of the American Sales Company against the defendant; that the said American Sales Company sold and delivered to the defendant the goods mentioned in the annexed itemized accounts amounting to Seven Hundred and Sixty-nine 15-100 dollars which plaintiff claims from defendant.

The bills annexed call for; July 29, 1919;

1st 2000 lbs. 40% dynamite at $21.50
per cwt___________________________________________$430.00
1000 4-ft. elec, blasting caps $7.80
less 15%______________________________________ 66.30
$496.30

August 14, 1919:

2nd 400 elec, blasting fuses at $7.80
less 15% ________________________________________$ 26.52
September 15, 1919:
3rd 300 4-ft. same,.-.________________________________$ 19.89
4th. 300 lbs. dynamite at $22.75 per
cwt. _______________________________________________ 68.25
500 feet safety fuse ____________________ 5.00
500 blasting caps ____________________________ 9.50
100 electric fuses ---------------------------- 7.02

October 10, 1919:

5th ' 300 lbs. 40% dynamite at $22.75 ' 68.25
500 blasting caps ......... 9.50
500 feet safety fuses ___________ 5.00
200 electric fuses ____________________________14.04
$729.27
Balance________________________________ 39.88
Total______________________________________$769.15

The defendant answered that his dealings with the American Sales Company were on the basis of the conditions and prices contained in a certain communication dated February 26, 1919, addressed to him by the American Sales Company.

This communication reads as follows:

“New Orleans, February 26, 1919.
“Mr. L. M. Dalgarn,
“New. Orleans, La.
“Dear Sir:
“Answering your much appreciated favor of the 24th inst., and in line with your wishes, we take pleasure in quoting you the following extreme lowest prices:
“The following prices are F. O. B. Chatawa, Miss.; 40% dynamite will be $23-25 per 100 lbs. in 1000-lb. lots; $22 per 100 lbs. in ton lots; 30% dynamite will be $21.38 per 100 in 100-lb. lots and $20.25 per 100 lbs. in ton lots. All of our prices and conditions set forth herein are submitted to you in the very strictest of confidence, which we ask you to keep them, and are as close as we can possibly figure. Hoping that it may be our pleasure to serve you, and, awaiting your commands, we are
“Yours very truly,
“THE AMERICAN SALES COMPANY.”

Article C. C., 1803 (1797) reads as follows:

“But when one party proposes, and the other assents then the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it.” Ryder vs. Frost, 3 La. Ann. 525-

Art. 1804 (1798):

“The acceptance needs not be made by the same act, or in point of time, immediately after the proposition; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so; it is sufficient.” 9 Cyc. 247-257-300.

The proposal contained in the letter of February 26, 1919, ripened into a contract between the plaintiff and the defendant the moment the latter ordered materials in accordance with it.

1 Bandry-Lac on Obligations, p. 38 S. 30:

“We must note on this subject that merchants who announce in circulars, prospectuses, price lists, or advertisements the conditions of their business are in a permanent state of offers as regards the public, as long as they have not withdrawn their propositions. It follows that an order conforming to their conditions constitutes an acceptance and forms as soon as it has come to the knowledge of the merchant a binding tie.”

The defendant in his brief admits the soundness of the above conclusions. He says:

“Had Dalgarn given his order for a specific quantity to be shipped over a period of several months, and American Sales Company accepted it without objection, they might have been held to their quotations, if it was given within a reasonable time.”

Then the whole difficulty resolves itself upon the question whether the defendant acted upon the letter within a reasonable time.

Our Civil Code does not define what a reasonable time is, but says merely “at anytime before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient”. In this case the proposal was made on February 26th, the first order by defendant was filled on March 5th; it must have been given at an anterior date. This seems to us a reasonable time.

But this offer and acceptance were binding only so far as the first order was concerned for the party making the offer, the plaintiff in this case, had a right to change his mind until the defendant had availed himself of it. The change of mind made by plaintiff was notified to the defendant by the first invoice or bill sent to him by plaintiff and by all subsequent ones containing a price different from the one made in the letter of February 26th, and by sending additional bills for the difference and for the freight after defendant had mailed a check for the price mentioned in that letter, and deducting the freight.

Notice of that change of mind put an end to the offer which ceased to be binding on the plaintiff.

The same reasoning applies to the charge for freight. The letter of February 26th states plainly: F. O. B. Chatawa, Miss.

We gather from the record that the difference from the first invoice was $50.30 deducting the difference in price and the freight Rec. p. 3- For this amount we think defendant is entitled to a credit.

The case of Campbell vs. Lambert, 36 A. 35, has no application to this case. That case was a demand for damages' for refusal to perform an alleged contract to sell coal. In this case the plaintiff sues in affirmance of a contract consummated by him.

The defendant also shows by the testimony of himself and of James P. Barnett, his explosive engineer, that there was two tons of dynamite received from the plaintiffs which were only 20% dynamite instead of 40% ordered and charged, and that the difference in price is four dollars a hundred pounds or $160, or $18 instead of $22 per hundred pounds. The charge in the first -account is for 2000 pounds at $21.50 or $3.50 more than $18, the value of 20% dynamite. The difference is only $3.50 a hundred pounds or $70.

There are only twice 300 pounds in the fourth and fifth accounts, or 600 pounds in all charged at $22.75 a hundred, or $4.75 more than $18, or $28-50 making a total of $98.50.

We are of opinion that the defendant is entitled to this further credit also.

But the plaintiff contends that the defendant cannot setup that defense for three reasons:

First: Because he used the dynamite.

The thing sold may be affected with vices or defects of two kinds. The first, such as “render it either absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it if he had known of the vices.” C. C., 2520 (2496).

oThe Second: When the defects are only “such as merely diminish the value of the thing sold, or when the quality which the thing sold has been declared to possess and which it is found to want is not of such importance as to induce the buyer to demand a redhibition.” C. C., 2541 (2519) 2542 (2520).

In the first case the buyer has his choice of two remedies; 1st He may exercise his right'of redhibition or of returning the thing sold to the vendor and demand the avoidance of the sale and the restitution of the price paid by him; or

2nd He may retain the thing sold and demand a diminution of the price to the extent that the defects have diminished the value of the thing sold, which is called the action quanti minoris.” G. C. 2541 (2519); Iberia Cypress Co. vs. Von Schoeler, 121 La. 72, 46 South. 105. Courts favor the latter action. Succession of Montgomery, 2 La. Ann. 471.

A buyer who has sold the thing cannot sue for redhibition but may claim diminution of price. 1 N. S. 317;. Blymer Ice Machine Company vs. McDonald, 48 La. Ann. 446, 19 South. 459; George vs. Shreveport Cotton Oil Company, 114 La. 503, 38 South. 432; Huntington vs. Lowe, 3 La. Ann. 379.

He may sue for diminution even after he has paid with knowledge of- defects. Peterkin vs. Martin, 30 La. Ann. 897.

Second: Because the reduction of the price or the action quanti minoris can be demanded only when “the vices of defects of the thing sold are of such a nature as to make them unfit for the purpose for which it was sold”.

This is error. We have already answered that objection. ■

Third: That the defendant could not set up an action quanti minoris after the expiration of one year. But our Supreme Court has held that the purchaser sued for the price is entitled to claim diminution for defects or vices notwithstanding the prescription of the action “quanti minoris. Quse sunt temporalia agenda, perpetua sunt act excipriendum." 10 M. 30 1 N. S. 468; Riggs vs. Duperrier, 19 La. Ann. 419; Johnson vs. Johnson, 2 La. Ann. 67; Edwards & Kurz, vs. Plaquemine Ice and Cold Storage Co., 46 La. Ann. 360, 15 South. 61.

It is therefore ordered that the judgment herein be reduced from Seven Hundred Twenty-nine 27-100 dollars to Five Hundred and Eighty 47-100 dollars, and as thus amended that the judgment be affirmed, the defendant to pay the costs of the District Court and of the Court of Appeal.


source: Caselaw Access Project

author: CLAIBORNE, J-

license: Public Domain

text:
    No. 9139
    Orleans
    CASTAGNA, Appellant, v. MARSHALL
    (January 4, 1926, Opinion and Decree)
    (February 15, 1926. Rehearing Refused)
    (March 30, 1926. Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Landlord and Tenant Par. 43, 44.
    Where the lessor notifies the lessee to vacate for non-payment of rent under Act 49 of 1918 and the lessee complies with the notice and surrenders possession of the property to the lessor, the lease is thereby dissolved and the lessor cannot recover rent beyond the period of possession by the lease.
    Appeal from the Civil District- Court, Division “F”. Hon. Percy Saint, Judge.
    Action by Frank Castagna against John B. Marshall for rent.
    There was judgment for plaintiff for part of r.ent claimed and plaintiff appealed.
    Judgment amended and affirmed.
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Ulic J. Burke and Jules A. Grasser and W. O. Hart, of New Orleans, attorneys for defendant, appellee.
   OPINION

CLAIBORNE, J-

This is a suit for rent.

On November 14, 1922, the plaintiff' filed this suit under No. 144,634 District Court.

He alleged that he had leased to the defendant the property 243-245 Broadway for a term of twelve months commencing October 1, 1922, and ending September 30, 1923, for the price of fifty dollars per month, payable in advance for which the defendant Marshall gave , twelve notes each for $50 with 8% per annum interest from maturity till paid; that it was stipulated in said lease that should the lessee at any time fail to pay rent punctually at maturity, the rent for the whole unexpired term should, without putting said lessee in default, at once become due and exigible, and in case of suit, that said lessee should pay as counsel fees an additional sum of ten per cent of the amount so due and exigible; that the rent note maturing November 1, 1922, is due and unpaid, and “that by the terms of said lease, the other said rent notes falling due monthly on the first of each month have become due and exigible, and that there is therefore due to petitioner the full sum of $550 besides interest and attorney’s fees”. The plaintiff prayed for provisional seizure and for judgment for $550 with interest and attorney’s fees.

The defendant admitted the lease, but denied the note sued on was unpaid. He further alleged that on November 12th he gave Theodore Cotonio, the attorney for the plaintiff a check for the month of November when it was distinctly understood that the check would be collected or presented at the bank on Wednesday the 15th of November, your defendant telling Cotonio at the time that he would make a deposit on the 15th of the month; that Cotonio accepted sai'd (check) in payment for the rent, and agreed to present check on the 15th; that the money to pay said cheek is in bank according to the understanding; that said Cotonio has said check given him in payment of the rent note, and he denied accordingly that all the notes were due, and he prayed for the dismissal of the suit.

Subsequently to the filing of this suit for rent the plaintiff on November 25th notified the defendant to vacate the property “because of the non-payment of rent”. The defendant failing to comply with the notice to vacate, the plaintiff on December 4, 1922, filed suit against him under No. 144,873 District Court according to Section 2155-2165 of the Revised Statutes as amended by Act 49 of 1918, praying for a rule to show cause why judgment should not be rendered in favor of the plaintiff condemning the said defendant Marshall to vacate the premises leased and to deliver possession of the same to the plaintiff.

To this rule defendant Marshall answered that on December 7th, averring that he had “moved from said premises some days ago”.

No further proceedings were had in the ejectment suit.

On February 21, 1923, the defendant filed an amended answer to the suit for rent in which he recited the suit for ejectment above mentioned and alleged plaintiff’s possession of the property since December 7, 1922, and he prayed for dismissal of the suit.

On March 29th there was judgment in favor of plaintiff for fifty dollars with attorney’s fees and interest thereon.

After an unsuccessful application for a new trial the plaintiff appealed.

Defendant swears that on November 12th, a Sunday, he gave Theodore Cotonio, attorney for plaintiff, a check dated Monday, November 13th with the understanding that it should not be presented for payment before Wednesday, Noveinber 15th, to which Cotonio agreed. Cotonio admitted that on Sunday the 12th, he received from defendant a check dated November 13th; but he denied that he agreed to present it only on the 15th. Cotonio is corroborated by the date of the check and therefore his testimony must prevail over that of the defendant Marshall.

The testimony shows that the defendant vacated the property on December 4th and that on December 7th he delivered the keys 'to the plaintiff who rented the property to other lessees.

The reasons for judgment of the District Court judge were that plaintiff could not recover judgment for rent against the defendant after he had ejected the defendant from the property; that he could not have “both the rent and the occupancy of the property rented”. We agree with the conclusions of the judge.

In the case of Carrie Mahan vs. Lafaye, 3 La. App. 445, this court said:

“Where a lessor terminates his tenant’s right of occupancy by rule to vacate and subsequently sues for all rents which could have accrued under the entire term of the lease, the tenant is only liable for such rent as is due at date of dispossession. The dissolution of the lease by rule to vacate deprives the lessor of the right to hold lessee for rent which could have sub-, sequently accrued."

We adhere to that opinion.

But counsel for plaintiff argues that there are two differences between this .case and the Lafaye case decided. by us.

1st That in the Lafaye case the suit for rent was filed after the suit to vacate, while in the present case the suit for rent was filed first and the suit to vacate afterwards. We see- no merit in the argument. It is a distinction without a difference. The reason of our opinion is that of the district judge, that the lessor cannot have the property and the rent also; that the consideration of the rent is the actual occupancy or right of occupancy of the lessee which is taken away from him by the judgment of ejectment.

2nd That in the two cases quoted above by us in the Lafaye case, Sigur vs. Lloyd, 1 La. Ann. 421; and Fox vs. McKee, 31 La. Ann. 67, the lessee had been ejected after a regular suit to annul the lease under Article C. C-, 2712, 2729, while in this case the lessee was ejected after summary proceedings under the Sections of the Revised Statutes which provide only for a method of dispossessing the lessee and turning over the possession of the leased premises to the lessor under certain conditions.

We see no merit in the distinction. Under our view of the Revised Statutes a judgment of ejectment for any of the reasons mentioned in the statute not only reinstates the lessor to the possession of the leased premises but puts an end to the relations of landlord and tenant. The law provides that when any lessor “shall be desirous of obtaining possession of the leased premises upon the termination of the lease either by limitation or by nonpayment of the rent when due, or any other breach of the said lease, he shall demand, etc.”

Article 1760 of the Code Napoleon reads as follows:

“In case of dissolution by the fault of the lessee, he is bound to pay the price of the lease during the time necessary for releasing without prejudice to the damages which may have resulted from the abuse.”

This Article has been eliminated in compiling our Code. Is not that an indication that the framers of our Code did not adopt that theory of the lessee’s liability?

Even then, the liability is not for all the time the property remains vacant but only for such time as is necessary to lease 4 Dalloz, p. 435 No. 4.

The only article of our Code which makes the lessee liable for rent “until the property is again leased out” is Article 2711 in case the lessee “makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor”, which is not the case here.

But we think the plaintiff is entitled in addition to rent up to December 7, 1922, say $11.70.

It is therefore ordered that the judgment herein be increased from Fifty dollars to Sixty-one 70-100 dollars and as thus amended that the .judgment be affirmed and that defendant pay the costs of appeal.


author: CLAIBORNE, J.

text:
    No. 9185
    Orleans
    RACELAND BANKING ASSN., Appellant, v. JOHANSON
    (March 15, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625, 630.
    When the judgment of the trial court appears to this court manifestly erroneous it will be reversed.
    Appeal from the Twenty-eighth Judicial District Court, for the Parish of Jefferson. Hon. Prentice E. Edrington, Judge.
    Action by The Raceland Banking Association'against John Johanson for the collection of promissory notes.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellant.
    L. Robert Rivarde, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit on nine promissory notes.

The plaintiff alleged that it is the holder and owner of nine promissory notes amounting in all to $520 with ten per cent attorney’s fees in case of suit to enforce payment of the same; that all of said notes were made by John Johanson to the order of and by himself endorsed and also endorsed by the firm of Alexander and Finney, composed of Charles E. Alexander and Winfield Harold Finney; that said notes were given in payment of an automobile and are paraphed for identification with the act of sale thereof. The defendant Johanson, admitted all the allegations of the petition except that of indebtedness. He averred that the price of the automobile was $1100; that he paid $580 cash leaving a balance due of $520; that said balance has become extinguished by the fact that in the month of November, 1921, his wife was informed that the plaintiff would accept the automobile in full payment of the notes; that accordingly defendant’s wife turned the automobile over to the endorser and co-defendant Finney, who, in turn, delivered it to plaintiff, at Raceland, who accepted the car and still has possession of the same.

The two defendants, Alexander and Finney, aver that the plaintiff made demand upon them “for the payment of the balance due on the purchase price of a certain automobile or the delivery to plaintiff of the automobile, and accordingly your respondents, acting under the instructions and orders of the plaintiff herein, delivered the said automobile to plaintiff who now has the said automobile in its possession. All three defendants pray that the above transactions be considered as a payment of the note and that they be discharged.

The district judge was of the opinion that “the action of the plainitff in accepting the said automobile from the defendants led them to believe that the plaintiff bank would accept the automobile on payment of the notes sued upon, or that it would dispose of the automobile at the time it came in possession of the same, and in that way apply whatever was realized from the proceeds of sale of the automobile to the payment of the notes”, that at the time it was received by the bank it was worth $550 and that plaintiff made no great effort to dispose of it, but retained same in its possession for several months, thereby greatly depreciating the value of the car, and making it impossible to realize anything out of' the sale of the car at this time. There was judgment for defendants, dismissing plaintiffs’ suit “as of non-suit”.

The plaintiff has appealed.

There is not a particle of evidence in the record to establish the defense that at any time the plaintiff agreed to take the automobile in payment of the notes, or that the plaintiff undertook to hold and sell the automobile and take the proceeds of sale in payment of them. On the contrary Simon Kahn, the cashier of plaintiff bank swears positively that there was no such agreement.

Nor is there any evidence that the bank detained the automobile with authority to sell it at any stated price.

The evidence on the contrary is that the cashier of plaintiff said to Alexander that he had a prospective buyer for the car and asked him to bring it out; that Alexander sent the car to the bank by a yard man, who did not wait to take the car back, but who under instructions from Alexander went back on the train. This testimony is not denied by Alexander who did not even testify in the case. Kahn further testified that his buyer offered $400 for the car which defendants refused to take. It further appears that the bank offered to take the car, in part payment at a price of $400 which was refused. The owner of the ear wanted $600 for it. The evidence also is that the defendants never obtained the consent of defendant Johanson to sell at any price.

During all the time that the automobile remained in the possession of the plaintiff, it was trying to sell it, but could find no buyer. Finney himself testifies: “I tried my best to sell it, but couldn’t find a buyer for it”. During all that time negotiations were going on between the plaintiff and the defendants with a view of an amicable settlement. It failed. The plaintiff did not hold possession of the car against the wishes of the defendants. They all knew the bank had it. They could have sold the car just as well as the bank, if they had found a purchaser. If the car remained in garage for so long a time it was more defendants’ fault than plaintiff’s, for it had found a purchaser for a price at which the owner of the car refused to sell. All these facts are sustained by the testimony and numerous letters which it would serve no purpose to reproduce.

With these views of the case we conclude that the judgment is manifestly wrong, and it is therefore reversed.

It is now ordered that there be judgment condemning the defendants John Johanson, Charles E. Alexander, and Winfield Harold Finney, jointly and in solido, to pay to the plaintiff herein, the Raceland Banking Association, the sum of Five Hundred and Twenty Dollars with eight per cent per annum interest from September 4, 1921, till paid, together with ten per cent attorney’s fees on the capital and interest of said sum, with mortgage and vendor’s privilege on the automobile described in the petition herein and all costs of both courts.


author: BELL, J.

text:
    No. 9251
    Orleans
    SULLIVAN, Appellant, v. UNITED FRUIT COMPANY
    (March 15, 1926. Opinion and Decree)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Appeal—Par. 625; Master and Servant—Par. 160(j), 160 (I).
    An injured employee suing under the Workmen’s Compensation Act must establish by a preponderance of evidence the nature and extent of the disability claimed. Failing so to do, he cannot recover. Denial of compensation by the trial court based upon such issues of fact will be affirmed unless clearly erroneous.
    Appeal from Civil District Court, Parish of Orleans, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Leslie Sullivan against United Fruit Company for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Edward S. Spire and N. H. Pohlmer, of New Orleans, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps and Dunbar and S. D. Marks, of New Orleans, attorneys for defendant, appellee.
   BELL, J.

Plaintiff sues for compensation, alleging that on February 9, 1923, while in the employ of the defendant company, and while engaged in work incident to his employment, he injured his left hand. It is alleged that as a result of the accident he was totally disabled, and that he is entitled to recover sixty per cent of his weekly wage, amounting to $33.60 from the aforesaid date until such time as he may be able to resume work-

Defendant answers by admitting the employment and that plaintiff was so engaged at the time and place mentioned, but denies that the injuries suffered were severe. It further denies that it was in any manner liable for the compensation as claimed.

Issues of fact are alone involved in this case, and the trial judge has resolved them in favor of the defendant, dismissing plaintiff’s suit. From this judgment, plaintiff has appealed.

The plaintiff’s petition does not set forth the nature and extent of the injury, except by the averment that the accident resulted in severe and painful injury to petitioner’s left hand. The only proof of this disability offered by plaintiff is his own testimony and that of Dr. Joseph Cohn, who examined him about a week before the trial of the case. The evidence shows that plaintiff, on the day of the accident, was hurt about 1:15 p. m., and after having his hand bandaged returned to work for the remainder of that day and until 8:00 p. m. thereof; that he also worked on the following day until 3:00 p. m.' The injuries sustained appear to have been the bruising or abrasion of the index finger of the left hand, which was jammed when plaintiff’s hand truck, which was being handled by him, brushed against a pile of cross-ties situated on the wharf where plaintiff was trucking a load of coffee for one of defendant’s ships. Dr. Cohn testifies that he saw the plaintiff but once, and found that he had some scars on the index finger of his left hand, and had lost the motion of that finger, and that he could not flex the finger as well as he could his other fingers, and that plaintiff complained of pain in the joint of the injured finger, for which he treated him. His testimony is, in part, as follows:

“Q. From your medical experience, would you say that he had the entire use of that finger?
“A. No, sir, he cannot use that finger as well as he can the other fingers.
“Q. Can you say how long it will be before he has the entire use of that finger?
“A. No, sir, I cannot; he may not have the ordinary use of that finger for the rest of his life, and then he may.”

Upon cross-examination, this witness says:

“Q. What caused the limited motion of this finger?
“A. I cannot tell you that.
“Q. Have you -any means of knowing that the limited motion is due to this injury that he received?
“A. I can only say that he has limited motion.
“Q. You do not know if it is due to this injury?
“A. He told me that he had been injured, and that before that he had free motion, and that since the injury he has had limited motion, and this is all I can tell you.”

As against this evidence, defendant has offered two x-ray photographs, which apparently indicate no injury to any of the fingers of defendant’s left hand. Dr. Gateley, the expert radiologist who took these photographs, testifies that he is unable to see anything wrong with the index finger, and that the x-ray photos are entirely negative in this respect-

Dr. Marion Souchon testifies, on behalf of defendant, that on the second joint of plaintiff’s index finger there is a scar about the size of a dime, and that plaintiff could bend the finger at the time he examined it, and could flex it if he wished to.

Dr. P. F. Murphy, Port Medical Officer of the defendant company, testifies that on the day of the accident he treated the plaintiff’s finger, and that he at once returned to work and that the finger was healed in a week, and that all it needed was to be covered to protect it from dirt; that in fact, the plaintiff continued to visit his office from February 12, to March 23, and that the finger was at no time infected. He further testifies as follows:

“Q. Will you state briefly what you found?
“A. He came to me on February 12th and had a laceration of the right hand, very superficial, right over here, scarcely anything, and it was healing by first intention, and in about eight or ten days it looked very good, and we have men that get those things and do not come for treatment, and sometimes we have to force them not to work for a few days, and I found this thing to be very superficial, but did not encourage him to work but told him to lay off for a couple of days, and in the course of nine or ten days his finger was getting along very nicely and he wanted me to figure out some insurance claims, and the first week I thought that probably he was entitled to it, the second I doubted, and I questioned the advisability of filling out the two blanks, and he became very offensive, and he continued coming, and I continued treating the finger, it was a question of putting a small piece of gauze on it, and I told him that he could go to work and he would not go to work, he refused to go to work, and I told him that I would not sign for any more money that I would continue treating his finger as long as he wanted, I had no objection to anyone working for the company coming to the office for treatment.
“Q. How long did this man actually come for treatment?
“A. It was all right in a week aijd all it needed was to be covered to protect it from the dirt and after the two weeks he kept coming.”

There is proof in the record that the plaintiff was tendered and received the sum of $12.00 for his temporary disability, and that he did not work for the defendant but five days, that is, from February 3 to February 10, the day after accident. He was directed by the company’s medical officer to return to work, but refused to do so, and we can find no evidence in the record to justify the claim which he has made for total disability. The trial judge, who saw and heard the witnesses, and had an opportunity to examine the plaintiff’s hand, has rendered a judgment dismissing plaintiff’s claim. We find no reason to disturb his ruling. The burden of proof was upon the plaintiff to establish the nature and extent of his injuries, and we conclude from the evidence that his injuries are of a most superficial nature.

Mixon vs. Humble Oil & Refining Co., 2 La. App. 543.

Stevens vs. Ohio Oil Co., 3 La. App., (6 Adv. Rep. S4).

The judgment appealed from is correct, and should be affirmed.


author: WESTERFIELD, J.

text:
    No. 9854
    Orleans
    TRUMATA v. BOARD OF LEVEE COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT
    (March 29, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Levees—Par. 13, 14; Parishes—.Par. 47.
    The Board of Levee Commissioners of the Orleans Levee District is a public agency engaged in the exercise of public and governmental functions and it is not subject to suit by private individuals for damages alleged to have been sustained by the negligence or fault of its employees. .
    Appeal from Civil District Court, Division “D”, Hon. Percy Saint, Judge.
    Action by Sam Trumata against Board of Levee Commissioners of the Orleans Levee District.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Arthur McGuirk, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an action ex delicto\ based upon the following allegations :

“That petitioner conducted a farm near what is known as Bridger No. 2 and the defendant stopped a drain which ran through this property and instead of providing sufficient drainage in lieu of the same, dug a small ditch which had the effect of overflowing the land from the rainfall on April 24 and 25, 1922, and damaged the crops on the land.” The amount of damages claimed is $1615.00.

The defendant board filed an exception of no cause of action which was maintained and plaintiff has appealed.

• The defendant is an important agency of the State exercising public functions and expending public funds in the manner designated and under the authority given by the legislature. It has no other purpose and no other form of activity. It is clearly a governmental agency. It cannot be held liable for the tortious or the illegal actions of its officers under the long established jurisprudence of this state.

In Stewart vs. City, 9 La. Ann. 461, it was said:

“The inquiry which is next presented is whether the powers under which the officers of the municipality acted were conferred for public purposes? If so, it follows that the city is not liable for the acts of their officers, even though illegal or of such a character as to subject the officers themselves to liability-” Affirmed in Joliff vs. City, 144 La. 62, 80 South. 200.

See also Howard vs. City, 1 La. App. 780, where this court held that an elevator tender in the Criminal District Court building exercises a public governmental function as an agent of the city.

Now is there any merit in the argument that plaintiff has a cause of action under Art. XVI, Sec. 6, of the Constitution of 1921, reading as follows:

“Lands and improvements thereon hereafter actually used' or destroyed for levees or levee drainage purposes shall be paid for at a price not to exceed the assessed value for the preceding year.”

To begin with this is not a suit for the value of land used for levee purposes in any sense of the word. It is a suit for the value of a crop destroyed by the alleged improper actions of the defendant’s employees. Or as counsel puts it:

“The plaintiff is a poor farmer, who had a crop planted and in process of cultivation and which was protected by a series of ditches or drains against- rainfall. The Levee Board, with a view of making larger-drains, stopped up the other drains without making proper provision for rain, and, in consequence, the rain water overflowed the land and the crops were ruined.”

The case is squarely within the rule which protects governmental agencies from suit by private individuals for damages due to the negligence or fault of their employees.

The judgment appealed from must be and it is affirmed.


text:
    No. 10,436
    Orleans
    STATE EX REL. BARNES v. JUDGE
    (March 15, 1926. Opinion and Decree)

      {Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 3; Mandamus—Par. 32.
    Appeal-—not mandamus—is the proper procedure where a judgment has been rendered by the district court denying, a motion to dismiss suspensive appeal upon the ground that surety on appeal bond is not such as the law requies.
    On Application for Writ of Certiorari, Mandamus and Prohibition.
    Action by State Ex Rel. Marshall Barnes against , Judge, Division “C”, Civil District Court, Parish of Orleans.
    Writ of mandamus denied.
    J. Olin Chamberlain, relator.
   BELL, J.

The relator herein prays for mandamus ordering the Judge of Division “C” of the Civil District Court for the Parish of Orleans to dismiss and set aside an order for suspensive appeal previously taken from a judgment in relator’s favor. The ground alleged in the rule for- dismissal taken in the District Court, in conformity with Act 112 of 1916, was to the effect that the surety company, as a foreign corporation signing the appeal bond, had not, at the time of the signing, been duly qualified as required by law. It was also alleged in the rule that the acceptance and approval by the District Court of such company as a surety upon the bond was contrary to Rule XXVIII of that court, the rule reading as f«allows:

“Surety Companies. Surety companies tendered as sureties in this court will not he accepted unless proper proof of their qualification, as such, is filed and offered in the archives of this court.”

After due hearing, the court dismissed the rule. No appeal was taken from this order dismissing the rule. Relator’s remedy was by appeal. Mandamus does not lie in such a ease.

Metropolitan Bank vs. Blaise, 109 La. 92, 33 South. 95.

State ex rel. Stuart vs. Judge, 45 La. Ann. 1322, 14 South. 59.

State ex rel. Chandler vs. Kruttschnitt, 44 La. Ann. 567, 10 South. 887.

Huntington vs. Bordeaux, 42 La. Ann. 346, 7 South. 553; Walsh vs. Carrene, 36 La. Ann. 200; State of Louisiana ex rel. Street vs. Rightor, 35 La. Ann. 515; State of Louisiana ex rel. Hernandez vs. Monroe, 33 La. Ann. 923; State of Louisiana ex rel. Weber vs. Skinner, 32 La. Ann. 1092; La. Dig., Vol. 1, verbo “Appeal”, Sec. 3; Taft Mercantile Co. vs. Blouin Co., Ltd., 2 La. App. 163.


text:
    No. 9226
    Orleans
    WITTENBERG, Appellant, v. TRAUTMAN
    (March 15, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Brokers—Par. 3, 4.
    A real estate agent who fails to procure a purchaser for property entrusted to her for sale before 7 p. m. of the last day allowed her for that purpose in the contract of mandate cannot claim her commission because of her failure to perform her obligation under the contract before sunset of the last day.
    2. Louisiana Digest—Evidence—Par. 3, 8.
    Courts will take judicial cognizance of the fact that the sun sets before 7 p. m. on the last day of the year.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    Action by Mrs. James Wittenberg against Joseph Trautman for a commission.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    W. Winans Wall and Johnston Armstrong, of New Orleans, attorneys for plaintiff, appellant.
    H. S. Weil, Lazarus and Lazarus, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff appeals from a judgment dismissing her demand for $900.00 as commission, alleged to be due her as a real estate agent.

The facts are not disputed and are substantially as stated by counsel for appellee in their brief.

On January 24, 1919, Mr. Trautman, defendant herein signed on a printed form an authorization to Mrs. Wittenberg, the plaintiff, to sell his residence, No. 6126 St. Charles avenue, for $30,000.00, agreeing to pay a commission of 3 per cent on the purchase price, stipulating that a deposit of 10 per cent to bind the sale would be required, and authorizing the broker to collect the same. After this authorization was signed, Mrs. Wittenberg brought to Mr. Trautman several offers of amounts considerably less than had been named in the authorization. After waiting almost nine months for the broker to find a purchaser for his house, the defendant, on October 21, 1919, wrote the plaintiff that he desired to withdraw the house from sale. Thereupon, Mr. Trautman was promptly informed by Mrs. Wittenberg that he could not cancel her authorization without giving “sixty days’ written notice”. Yielding to this interpretation of the instrument, Mr. Trautman gave written notice, on November 1, 1919, that he desired to withdraw the house from sale, and immediately thereafter, on November 3, 1919, wrote to plaintiff further as follows:

“In connection with my letter to you dated November 1st, this is to notify you that I have raised the price of my property 6126 St. Charles avenue.”

Nothing further was heard by Mr. Trautman from the plaintiff until 7 o’clock on the night of December 31, 1919, when Mrs. Wittenberg presented to the defendant at his home what purported to be a written offer signed by one J. Klein to purchase the defendant’s house for $30,000.00 cash. Defendant promptly informed the plaintiff that she had no right to sell the property, and refused to discuss the matter with her further, stating at the moment that there was sickness in his family and he did not care to be disturbed.

Thereafter this suit was brought for $900.00, representing the commission of 3 per cent on the alleged purchase price of $30,000.00.

A number of defenses were pleaded and pressed in argument. We shall notice only one, the contention that plaintiff failed to perform her part of the contract within the term as fixed by the expiration of the sixty days’ written notice of withdrawal given under the terms of the contract by -defendant by his letter of November 1, 1919.

There is no dispute that the last day upon which plaintiff could perform her obligation was December 31, 1919. Assuming that the offer to, purchase the property signed by Klein was bona fide and that defendant could not raise the selling price of his property during the life of his contract with plaintiff so as to prejudice her right to a commission should she obtain a purchaser willing and able to pay $30,000.00 the maximum amount mentioned in the contract, all as plaintiff contends— she did not obtain the offer of Klein and. communicate it to defendant until 7 p. m. of December 31, 1919.

Art. 2057 R. C. C., provides that:

“Where a term is given for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligations, unless the object of the contract-cannot be done after certain hours of that day.”

There is no proof in the record as to the time of sunset on December 31, 1919, but counsel says, and we think properly, that we may take judicial notice that on the last day of the year the sun sets some little time before 7 p. m. citing the following from Jones on Evidence, Yol. 1, p. 627:

“So the courts take judicial notice * * * of the time when the sun and moon rise and set on a given day * * *.”

People vs. Chee Kee, 61 Cal. 404.

Case vs. Perew, 46 Hun. (N. Y.) 57.

Dayton Co. vs. Marshall, 75 N. E. 824.

Cincinnati, etc., R. R. vs. Worthington, 66 N. E. 478, 96 Am. St. Rep. 355.

Counsel for plaintiff frankly admits his inability to escape the effect of Art. 2057 R. C. C. and sensing an unfavorable decree at our hands requests that the case be decided upon this ground instead of for the reasons advanced by the trial judge.

We are pleased to be able to grant to counsel so small a boon.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,044
    Orleans
    CITY OF NEW ORLEANS v. CANAL BAKERY AND DELICATESSEN, INC., Appellant
    (March 15, 1926, Opinion and Decree.)
    (See p. 18 herein.)
    (March 15, 1926, Suspensive Appeal to Court of Appeal Granted.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Injunction—Par. 58.
    Act 29 of 1924 relates only to temporary restraining orders and preliminary writs of injunction and not to perpetual injunctions issued after hearing on the merits.
    2. Louisiana Digest—Appeal—Par. 110.
    A suspensive appeal will lie from a final judgment perpetuating an injunction.
    Appeal from Civil District Court, Division “B”. Hon. Mark Boatner, Judge.
    Action by City of New Orleans against Canal Bakery and Delicatessen, Inc.
    Alternative writs of mandamus, certiorari and prohibition made peremptory.
    Francis Pi Burns, of New Orleans, assistant city attorney.
    Paul W. Maloney, Jno. C. Davey and Edward Dinkelspiel, of New Orleans, attorneys for relators.
   WESTERFIELD, J.

The facts in this case are stated in an opinion of this court handed down October 17, 1925, under the No. 10,255 of the docket. We there held that in the exercise of the discretion vested in us by Act 29 of 1924 we would allow this defendant a suspensive appeal from a judgment ordering a preliminary injunction enjoining it from operating a private market because defendant might suffer irreparable injury while plaintiff could not be injured by the appeal. We did not suspend proceedings in the trial court, however, and since the decision of this court to which we have referred the case has been tried on the merits and the preliminary injunction made perpetual or, as it is called by the trial court, “permanent”. (See 3 La. App. —, 6 Ad. Rpts. 18.)

Counsel doubtless, because of some confusion as to the proper remedy, have applied to us for a. suspensive appeal under Act 29 of 1924 and for writs of mandamus, prohibition and certiorari. The learned trial judge, evidently considering the case as governed by the Act of 1924, justifies his refusal to grant a suspensive appeal as a proper exercise of judicial discretion. But Act 29 of 1924 has no application here. That act relates only to “temporary •restraining orders and preliminary writs of injunction”. The injunction we are now considering is neither the one nor the other. It was issued after hearing on the merits and is a perpetual or “permanent” injunction with which the 1924 statute has no concern. Paul vs. Tabony, 1 La. App. 542.

It follows, therefore', that the right of relator to' a suspensive appeal must be determined under the general law without reference to the Act of 1924.

“A judgment which makes an injunction perpetual and passes on the points at issue after trial on the merits is a final judgment.” Carondelet Canal Nav. Co. vs. New Orleans, 44 La. Ann. 394, 10 South. 871; La. Digest, Vol. 1, verbo Appeal, p. 315. An appeal from a final judgment where appeals are allowed by law is a matter of- right and not within the discretion of the court. C. P., Art. 565. And if taken within ten days and accompanied by proper security the appeal operates to “stay execution and all further proceedings until definitive judgment be rendered on appeal.” C. R. 575. A suspensive appeal must be allowed where not specially denied by law. State ex rel. Cain vs. Judge Sixth District Court, Parish of Orleans, 20 La. Ann. 574; State ex rel. Crescent City Bank vs. Judge Third District Court of New Orleans, 20 La. Ann. 186.

We think relator is entitled to a suspensive appeal.

For the reasons assigned the alternate writs of mandamus, certiorari and prohibition heretofore issued are made peremptory, and it is now ordered that the Honorable Mark Boatner, Judge of Division “B” of the Civil District Court, be directed to grant to relator herein, Canal Bakery and Delicatessen, Inc., a suspensive appeal from the judgment of February 17, 1924, returnable to this court at such time and under such conditions as the law directs, the cost of this application to be borne by plaintiff.

Mandamus peremptory.


text:
    No. 9243
    Orleans
    HASKINS TRADING COMPANY, Appellant, v. COOK
    (March 15, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    . 1. Louisiana Digest—Obligations—Par. 16, 17.
    Where both parties contemplate that a proposed sale shall be reduced to writing there is no contract until and unless it is reduced to writing and signed. Until such writing is drawn and signed the contract is inchoate and incomplete and either party may “recant, retract, recede, withdraw, decline to go further” and “refuse to consummate”.
    (Civil Code, Arts. 1766, 1809. Editor's note.)
    Appeal from the Civil District Court, Division “E”. Hon. William H. Byrnes, Judge.
    Action by Haskins Trading Co. against Herbert N. Cook for damages ex contractu.
    There was judgment for defendant and plaintiff appealed.
    Judgment afirmed.
    Feitel & Feitel and N. H. Polmer, of New Orleans, attorneys for plaintiff, appellant.
    Eugene Thorpe, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for $600.00 as damages ex contractu. Plaintiff claims to have bought from defendant one carload of Mexican “Garbanzos” (beans) which it is alleged defendant failed to deliver, causing plaintiff to suffer the damages sued for.

There was judgment below in defendant’s favor dismissing plaintiff’s suit and plaintiff has appealed.

It is alleged that, on April 20, 1922, plaintiff purchased from defendant by verbal sale, through an alleged authorized agent of- defendant, one Cambon, one car of Mexican garbanzos, new crop, average 48-54, at $17.00 per 100 kilos, net f.o.b. car New Orleans, in bond, for immediate shipment from Nogales, Mexico; that pri April 24, 1922, petitioner was informed through a Mr. Scott, representative of defendant, that it would be impossible for the defendant to deliver the car of garbanzos sold to petitioner as above set forth; that plaintiff demanded that defendant fulfill his contract and make delivery, and wrote to the defendant on April 24, 1922, calling upon defendant to make delivery within the next five days; that on April 26, 1922, defendant wrote a letter to plaintiff advising that it would be impossible for defendant to make delivery; that following the purchase of the goods, plaintiff had sold same at a profit of 68c per 100 pounds, or a profit of $1.50 on each 100 kilos; that the average car contains 400 bags of 100 kilos; that, at the profit of $1.50 per 100 kilos, plaintiff sustained a loss in profit of $600.00, for which amount he prayed judgment.

Defendant denies that Cambon was his agent and insists that he was the agent of plaintiff, and avers that Cambon in behalf of plaintiff offered to buy from defendant a carload of garbanzos for immediate shipment from Nogales, and that defendant, through his employee, Scott, agreed to sell the car subject to all contingencies which existed in Mexico regarding garbanzos (meaning government embargoes, which it appears were ordered at intervals by presidential manifesto), and upon the understanding that the contract be reduced to writing and signed by both parties; that “because of regulations in Mexico governing the shipment of garbanzos it is uncertain whether or not a shipment can be procured; that this condition is well known to all that deal in garbanzos and was made known by Scott to the said Cambon that the sale would be made subject to defendant’s suppliers in Mexico being able to ship the garbanzos out of Mexico; that on April 22, 1922, defendant’s “suppliers” in Mexico informed him that they could not ship owing to an embargo then in effect and that defendant thereupon notified plaintiff of that fact.

The first question for our consideration is whether there was any contract between the parties in view of the contention of defendant that it was always contemplated that there should be a written contract protecting him against the contingencies which arose. In other words, defendant’s position is that there was only a preliminary discussion and a conditional agreement to sell the garbanzos, the intention being to express the conditions in a written contract, and that when, upon telegraphic inquiry, it developed that the garbanzos could n'ot be shipped, he dropped the matter after notifying plaintiff. Plaintifi, on the contrary, contends that there was a complete verbal agreement with Cambon, whom he claims was defendant’s agent, and that Cambon confirmed the sale over the telephone. As to whether Cambon was or was not defendant’s agent or plaintiff’s agent, we believe he was. neither one nor the other but a broker dealing in garbanzos and negotiating this sale as intermediary. The following testimony of Arthur Belmor, plaintiff’s export manager, is of interest in this connection:

“Q. That is very important, to find out • whether this owner sent him there with a certain message to you, or whether he simply stated the name of the owner and made the offer. What did he say to you, to make you say that the owner of the car sent a message over to you?
“A. I didn’t say that. I didn’t say the owner sent .a message to us. I inferred he was offering the car to the trade, for account of H. N. Cook, and, as we were interested in that commodity, he came to us with the offer.
“Q. It could be possible that Mr. Cambon knew of a party having it and coming to your office and saying the owner sent him?
“A. He didn’t say tbe owner sent him there.
“Q. The owner didn’t send him there?
“A. He didn’t say so.”

Solomon Goldman, the plaintiff, testified as follows:

“Q. Answer the question. Did he tell you that H. N. Cook had sent him there?
“A. I don’t know about sending. Agents come every day in the office and offer the party’s goods. I didn’t know if Mr. Cook had sent him there, but we have to take the customary way.”

Urbane Cosam, a witness for defendant, testified:

“Q. What was said at that conversation?
“A. I recall the remark of Mr. Cambon: ‘Can you get the garbanzos?’ Mr.
Scott said: T will try to get it.’
“Q. Was there any buying and selling of those garbanzos ?
“A. Mr. Cambon was attempting to buy the garbanzos.
“Q. Did he say he wanted them?
“A. Yes, he did.
“Q. Who did he say wanted them?
“A. The Haskins Trading Company.”

H. N. Cook, the defendant, testified as follows:

“Q. Did you employ Mr. Louis Cambon to sell for you any garbanzos on or about that date (April 20, 1922) ?
“A. I did not.”

It is apparent that Cambon was not the agent of either party except in the sense that a broker represents both the buyer and seller. The alleged telephone confirmation by Cambon, if it occurred as plaintiff claims, cannot bind the defendant. Incidentally Cambon did not testify in the case, a fact which is unexplained in the record and cannot help plaintiff’s case. Reubenstein vs. Files, 146 La. 727, 84 South. 33.

To return to a consideration of the question of whether the parties contemplated that the contract should be reduced to writing, from which we digressed momentarily to dispose of a collateral issue relatively unimportant, we find the following testimony to be conclusive in affirmation. Plaintiff’s witness, Belmar, to whose evidence we have heretofore alluded, says:

“Q. I show you a document dated 4-20-22, signed Haskins Trading Company, reading as follows:
“1 car Mex. garbanzos, new crop 48-54 in 100 kilo bags, at $17 per 100 kilos, net, f.o.b. car New Orleans, immediate shipment from Nogales, weight guaranteed, fumigation certificate, payment arrival goods, allow inspection, 1-c through bank in New Orleans if requested. Subject acceptance 5 p.m. today.
“4-20-22.
“HASKINS TRADING COMPANY,
“By Goldberg.
“Now, did you send that document to Mr. Cook’s office by Mr. Cambon?
“A. Mr. Goldberg sent it, with my knowledge.
“Q. Now, after you sent this firm offer over, did you ever send Mr. Cambon over there again to Mr. Cook’s office?
“A. Yes, in this sense, that I requested him to get for us the confirmation, written confirmation, of that sale.
“Q. You wanted him to obtain a written contract?
“A. Yes, sir, inasmuch as the sale was made through him, we would request him --•”

Goldberg, the plaintiff, testified that he signed the terms which he had written on a piece of paper and handed it to Cambon.

“Q. You sent that signed order to Mr. Cook?
“A. It was a sales proposition, not an order.
“Q. You sent this document?
“A. I wrote it myself and signed it.
“Q. What did you do with it?
“A. Gave it to Cambon. He had already accepted the $17.00 basis, and I told him under these terms and conditions that we would do business. So he took that notice as the basis on which this car was bought.
“Q. He took it, or did you give it to him?
“A. I gave it to him and he took it.”

Scott, who represented defendant in the transaction, testified:

“Q. Did you ever, for and on behalf of Mr. Cook, sign a written contract in this matter?
“A. No, sir; the contract was made up but never signed.
“Q. I show you a document already offered in evidence and marked Cook-1. Did Mr. Cambon ever hand that to you to sign for Mr. Cook?
“A. Yes. sir. He tried every way possible to get me to sign it, and I wouldn’t because the deal was not carried through to the finish; it had not been completed; the confirmation was lacking from the suppliers.
“Q. Was there any other reason you didn’t sign it?
“A. Yes, because we had a formal contract covering that sale.
“Q. Did Mr. Haskins or did Mr. Cambon come to your office several times, stating that Mr. Haskins had sent him for a written contract?
“A. Yes, sir, he asked for it verbally and over the phone several times on behalf of the Haskins Trading Company.”

The conclusion is irresistible that both parties contemplated at all times that there should be no contract other than the one which was to be in writing. Plaintiff had written his terms and given them to Cambon and defendant, refusing to assent to plaintiff’s terms, offered a formal contract which plaintiff would not or at least did not sign. There was, therefore, no contract/ and the case falls squarely within and is controlled by Laroussini vs. Werlein, 52 La. Ann. 424, 27 South. 89. It was there held that:

“If, when a verbal contract of lease is agreed on, it is understood, contemplated and intended that it should be reduced to writing, that there should be a written lease, that the written lease should take the place of and stand for what has been agreed on verbally in respect to the leasing of the property, then until the writing is drawn up and signed the contract is inchoate, incomplete, and either party, before signing, may recant, retract, recede, withdraw, decline to go further, refuse to consummate.”

The instant case is much stronger for defendant than that of Werlein in the Laroussini case. Here it is at least doubtful whether anything definite had been agreed on verbally while in the cited case “a verbal contract of lease is agreed on”.

“Common Intent: That is, the common intent of the parties that is to be sought for; if there is a difference in this intent there is no common consent and consequently no contract.” R. C. C. 1945, Sec. 4.
“There was no valid binding agreement, amounting to a complete contract, made verbally between the parties in March, 1918, which is enforceable in all of its parts; and as a contract must be treated as a whole, and some of the parts of the alleged contract were not definitely agreed upon, the contract is not enforceable and-plaintiffs must fail in their suit. Laroussini vs. Werlein, 12 La. Ann. 424; In re Woodville, 115 La. 810, 40 South. 174; Laroussini vs. Werlein, 52 La. Ann. 426, 27 South. 89; Sig. Haas & Son vs. Bernhardt, 144 La. 930, 81 South. 402.
“Contracts arise from the agreements of parties, not from their disagreements; and, the evidence showing that, for want of clear explanation, the parties misunderstood each other and really disagreed, instead of agreeing, the obligation of the alleged contract cannot be enforced. Pittsburgh, etc., & Oil Co. vs. Slack, 42 La. Ann. 107, 7 South. 230.”

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,358
    Orleans
    HARVEY, Appellant, v. KUHNHOLZ
    (March 29, 1926. Opinion and Decree)

      (Syllabus by the Court, j

    1. Louisiana Digest—Evidence—Par. 38, 340, 342.
    The presumption is that a letter properly addressed and mailed was received by the addressee, and when the presumption is supported by corroborating evidence and circumstances, the fact will be considered as having been established, notwithstanding the denial of the addressee.
    Appeal from First City Court, Division “A”. Hon. William Alexander Bahns, Judge.
    Action by Stanley A. Harvey against Mrs. Lydia Kuhnholz, wife of Sidney Jastram.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. Warren Woodville, of New Orleans, attorney for plaintiff, appellant.
    William McL. Fassoux, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a real estate agent, entered into a contract with defendant, dated March 19, 1922, under the terms of which defendant authorized the sale of two city lots belonging to her for the sum of five hundred dollars. It was agreed that plaintiff was to receive 5 per cent commission if the lots were sold for the amount mentioned and if for more the .surplus was to be given the agent in lieu of a commission, and the agent was to have exclusive control of the property during the existence of the contract and his commissions and other compensation to be paid no matter by whom the property was sold.

It was also stipulated that “I will notify my agent in writing and give him ninety days’ notice, if I desire this contract discontinued”.

The property was sold by the defendant' without plaintiff’s knowledge oh June 10, 1923, for $700.00 and this suit for $200.00 resulted.

Defendant claims to have given plaintiff written notice on August 16, 1922, of her desire to terminate the contract. This is denied by plaintiff.

. The issue, therefore, is whether the contract was terminated by written notice as claimed by defendant.

Defendant testifies that she wrote and mailed to plaintiff the following letter on August 16, 1922:

“New Orleans, 8-16-22.
“Mr. S. H. Harvey.
“Dear Sir:
“I beg to state that contract for lots 11 and 12 on Iberville, Louisville, Mouton and Walker Streets haxe expired and I do not intend to sell them.
“Respectfully;
“MRS. L. JASTRAM.”

Her testimony in this regard is as follows:

“Q. I show you a copy of a contract and ask you if this is the contract which you signed, which contract is dated March 19, 1922?
“A. Yes.
“Q. Thereafter did you have any occasion to communicate with Mr. Harvey relative to this contract for the sale of your two lots of ground?
“A. I notified Mr. Harvey by letter that the contract had expired and I intended keeping the lots. After that I heard no more from him until the latter part of 1922 or the first of 1923. He came to me once with an offer of $600.00. I told him then the contract had expired and I intended keeping the lots.
“Q. How did you notify him relative to the cancellation?
“A. By this letter.
“Q. How was that letter sent?
.“A. By mail.
“Q. Is this an exact copy?
“A. Yes.
“Q. When was it mailed?
“A. August 16, 1922.
“Q. Was it mailed on the same day the letter was written?
“A. Yes.
“Q. Who was the letter addressed to?
“A. Stanley A. Harvey, 638 Canal Street.
“Q. Was there anything on the outside of the envelope to show where it should be returned?
“A. Yes.
“Q- Did you receive it back?
“A. No.
“Q. You say in 1922 or the first of 1923 he called and submitted an offer of $600.00?
“A. Yes.
“Q. And you informed him you can-celled the contract. Did he say anything to you relative to having or not having received such a notification?
“A. No, he said I ought to take the offer, and I asked him why he had not put signs up out there, and he said he could not locate the lots.”

And at another point in her testimony:

“Q. When Mr. Harvey called on you and submitted to you the $600.00 offer who was present or was there anybody present at that time?
“A. My sister and Mr. Harvey.
“Q. Was she present during all this conversation?
“A. Yes.
“Q. Did Mr. Harvey ever call on you again after that?
“A. No.”

Miss Johannah Kuhnholz, defendant’s sister, testified:

“Q. You know Mr. Harvey?
“A. Yes, sir.
“Q. You have seen him?
“A. Yes, once. . .
“Q. Where did you have occasion to see him?
“A. At my home.
“Q. Where is that?
“A. 912 Kelerec Street.
“Q. When was that, do you remember?
“A. Some time in December or January 1923 or 1924.
“Q. What year? •
“A. 1923 or 1924.
“Q. Do you remember what transpired at that interview of Mr. Harvey’s?
“A. Mr. Harvey told my sister he had an offer for the sale of her lots.
“Q. Did he say how much? ■
“A. $600.00.
“Q. What did your sister say to him?
“A. She said, ‘I have already notified you that I did not want to dispose of my lots. I want to keep them.’
“Q. Did he say anything else?
“A. No.”

Plainitff’s counsel argues that the case at bar is controlled by the case of Williams vs. Reith, 149 La. 298, where it was held that -the burden of proof rested upon the party asserting the notice was sent to prove it and that mailing the letter only created a presumption of its delivery by the government and receipt by the addressee which must yield to positive evidence, such • as the denial of its receipt by the addressee, to the contrary.

But in the instant case two witnesses, interested witnesses, it is true, testify that plaintiff tacitly admitted receiving notice of the cancellation of the agreement. This is a clear preponderance in defendant’s favor, without regard to the presumption that the letter was received, which flows from the fact that it was mailed. Besides, plaintiff’s acquiescence in the cancellation of the agreement appears at least plausibly shown by his failure to demand the sum of $100.00 which was due him 'as commission when he obtained an offer for defendant’s lots in the sum of $600.00, if this contract was still in force at the time. He explains this inaction by saying that he hoped to make more money by selling defendant a house, which she expressed a desire to buy, and he did not wish to antagonize her. He also offers proof that he continued to advertise the property for sale at intervals in the daily newspapers practically up to the time it was sold and this he contends is strongly persuasive of his contention that he received no notice of the cancellation of the contract. We must admit the force of this argument, though the 'advertisements were very inexpensive in appearance and it may have been that plaintiff had forgotten his conversation with defendant, as well as the receipt of the notice or that he hoped to make the sale any way. Be that as it may, we cannot ignore the weight of defendant’s evidence as being a preponderance against plaintiff and consequently, we are not at liberty to indulge 'in conjectures and probabilities. The judgment appealed from is affirmed.


author: REYNOLDS, J.

text:
    No. 2496
    Second Circuit
    BLAKENEY v. EASTERWOOD
    (April 10, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. . 90.
    Code of ■ Practice, Article 419, allowing “after issue joined”, amendment with leave of court, indicates that before issue joined the plaintiff may amend without any leave of court.
    Tarver vs. Quinn, 149 La. 368, 89 South. 216.
    Lehman Dry G. Co. vs. Lemoine, 129 La. 382, 56 South. 324.
    2. Louisiana Digest—Pleading—Par. 82, 83.
    An amended petition substituting $600.00. for $700.00 as the amount of the principal of a note sued on, does not change the issues.
    3.Louisiana Digest—Citation and Appearance—Par. 6; Prescription—Par. 190, 192, 193.
    Where the petition and citation described the defendant as C. R. Easter-wood and citation is served on C. E. Easterwood, who was the person intended to be sued, such citation is sufficient to interrupt the running of prescription on the demand sued on, and correction of the misnomer by amended petition and citation will relate back to and cure the misdescription in the original petition and citation.
    Satterley vs: Morgan, 33 La. Ann. 846.
    Babin vs. Lyons Lumber Co., 132 La. 873, 61 South. 855.
    Gueble vs. Town of Lafayette, 118 La. 494, 43 South. 63.
    Woodall vs. La. Ry. & Nav. Co., 149 La. 903, 90 South. 238.
    Anding vs. T. & P. Ry. Co., 158 La. 903, 104 South. 190.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by B. B. Blakeney against C. E. Easterwood for collection of a .promissory note. There was a reconvention filed for defendant. There was judgment in favor of plaintiff rejecting defendant’s reconventional demand.
    Defendant appealed.
    Judgment affirmed.
    Pugh and Boatner, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    Plaintiff filed a petition in the District Court wherein he alleged that he was the owner and holder of a promissory note for the sum of $700.00 payable to his order one year after its date, signed C. R. Easterwood, dated August 3, 1917, bearing 6% per annum interest from its date until paid and stipulating payment of 10% attorney’s fees in case of suit for collection, less $149.00 paid on April 21, 1919; and he asked for judgment against C. R. Easter-wood for the debt, interest, attorney’s fees and costs.
   REYNOLDS, J.

Citation was issued to C. R. Easterwood.

Service was had on C. E. Easterwood on July 5, 1923, who, on July 14, 1923, filed an exception that the initial letters of his given name were C. E. and not C. R., that therefore he had not been legally cited, and asked that the suit be dismissed.

This exception seems not to have been passed upon, or it was impliedly overruled, for, on July 18, 1923, by leave of court, over defendant’s objection, plaintiff filed an amended petition alleging .that C. E. Easterwood and not C. R. Easterwood was the maker of the note and of the person sued and prayed for judgment against C. E. Easterwood.

Service of this amended petition was had July 18, 1923.

On September 20, 1923, by leave of court, plaintiff filed a second amended petition, wherein he alleged that the note sued on had been lost, that diligent search therefor had been made in vain, and that its loss had been advertised according to law.

Service of this amended petition was had on September 20, 1923.

On October 16, 1923, defendant filed a plea of prescription of five years, alleging that no payment had been made on the note to his knowledge or with his consent and that more than five years had elapsed between the date of the maturity of the note and that of service of citation on him.

On November 10, 1923, defendant withdrew his plea of prescription and, reserving his exceptions to the allowance of the first amended and second amended petitions, denied the allegations of the original and amended petitions, and reconvened against plaintiff for $250.00, with legal interest thereon from judicial demand, alleging that he had entrusted to plaintiff and his partner in the practice of law a claim for that amount for collection and that they had collected it and failed to account to him therefor.

On March 22, 1924, by leave of court, over plaintiff’s objection that it changed the issues, plaintiff filed a third amended petition. In this he alleged that the note sued on was not for $700.00 but $600.00, and that its date was not August 3, 1917, but some day, unknown, in June, July or August, 1923.

Defendant then filed an exception of no cause or right of action to plaintiff’s original and first, second and third amended petitions, coupled with an answer, in the. alternative, should this exception be overruled, wherein, after reserving his exceptions to the rulings of the court, he denied, for lack of information, the allegations of the original and amended petitions.

Hei also filed a new plea of prescription of five years. ■

On these issues the case went to trial and there was judgment in favor of the plaintiff and against the defendant C. E. Easterwood for $600.00 with 6% per annum interest thereon from August 31, 1917, until paid, and 10% additional on the amount of principal and interest, as attorney’s fees, less a credit of $149.00 as of April 21, 1919, and rejecting defendant’s reconventional demand.

The defendant appeal, and in this court plaintiff has moved for 10% damages as for a frivolous appeal.

OPINION

Only two questions are involved in a decision of this case, namely, . whether plaintiff had the right to amend his petition and whether his cause of action was prescribed.

It is the settled jurisprudence of Louisiana that amendments of pleadings should be liberally allowed so as to accomplish the objects of justice.

Changing the amount sued for from $700.00 to $600.00 was not to the prejudice but rather to the advantage of defendant, and the evidence shows that the reduction was made as a concession to defendant and for the purpose of eliminating possible controversy as to the correct amount of the note.

In our opinion, the amendments allowed might well have been made instantor, but all three of them were formally allowed by order of court, and the first two were formally served on defendant.

“Code of Prac., Art. 419, allowing ‘after issue joined’ amendment with leave of court, indicates that before issue joined the plaintiff may amend without any need of leave of court.”

Tarver vs. Quinn, 149 La. 368, 89 South. 216.

“Moreover * .* * until the defendant has appeared there is nothing to prevent the filing of as many supplemental petitions as the plaintiff may see fit to file.”

Lehman Dry Goods Co. vs. Lemoine, 129 La. 382, 56 South. 324.

C. E. Easterwood being the person intended to be sued by plaintiff, service on him before prescription had run of citation addressed to C. R. Easterwood interrupted the running of prescription.

In Satterley vs. Morgan, 33 La. Ann. 846, the suit was against one Charles Morgan, an absentee; citation was issued to Charles Morgan, and the sheriff’s return thereon showed service “on Charles Morgan, through A. C. Hutchinson, , his agent, in person”.

The defendant excepted to the service as illegal. The exception was sustained, with leave to plaintiff to perfect citation. The petition was thereupon amended so as to allege that Charles Morgan was a resident of New York and was represented in Louisiana by an agent, A. C. Hutchinson, and a new citation, addressed to “Charles Morgan, through A. C. Hutchinson, agent” was issued thereon and served on the latter.

Defendant thereupon filed a plea of prescription.

As the prescriptive period had run after the service of the first and before the service of the second citation, the question of the sufficiency of the first citation to interrupt prescription was presented; and the court held that the first citation was sufficient to interrupt prescription, saying:

“A long line of authorities have established a distinction between the technical sufficiency of a citation, as a basis for the maintenance of proceedings and judgment, and its sufficiency for the purpose of interrupting prescription. Citation for the purpose of interrupting prescription needs not to be technically perfect either in form or service.
“For the ordinary purposes of a suit and judgment a citation or judicial demand addressed to- a person other than the one intended to be sued, though delivered to the latter, is ineffectual; but, where such demand has been served upon the right person and conveys full information, a slight error in the designation or description of the person intended to be sued, which could mislead no one, will not prevent its interrupting the prescription of the claim so demanded.”

Babin vs. Lyons Lumber Co., 132 La. 873, 61 South. 855.

.In that case the correct name of the person intended to be sued was Lyons Lumber Company and the petition and citation described it as J. L. Lyons Lumber Company.

See also:

Gueble vs. Town of Lafayette, 118 La. 494, 43 South. 63; Woodall vs. L. Ry. & Nav. Co., 149 La. 903; 90 South. 238; Anding vs. T. & P. Ry. Co., 158 La. 412, 104 South. 190; City of New Orleans vs. Saloy, 11 La. Ann. 420.

The first citation had the effect of interrupting the running of prescription and the petition and citation have been amended so as to correctly designate the defendant, the error was cured, the cure related back to the ■ date of service of the first citation and therefore the plea of prescription was properly overruled

Plaintiff testified that he was the owner and holder of the note sued on; that it was dated August 3rd or 4th,' 1917; that it was for $700.00; that it was lost or destroyed at Tulsa, Oklahoma; that it was made payable to B. B. Blakeney; that it stipulated for the payment of 10% as attorney’s fees in case of legal proceedings to collect it; that it bore six per cent interest; that he had not negotiated it; and that it disappeared from his office in Tulsa some time before January, 1920; that himself and partner had collected for account of defendant $200.00; that he had deducted a fee of $25.00 therefrom and credited the balance of $175.00 on the note sued on which at that time, April 21, 1919, amounted, in principal and interest, to $726.00; that he so informed defendant by letter of that date; that he had subsequently met defendant and discussed the matter with him and that it was satisfactory to defendant and that he had endorsed the credit on the note in defendant’s presence.

J. H. Maxey testified that he had been the partner of the plaintiff; that he had seen the note sued on; that it was payable to plaintiff, was dated some day in June, July or August, 1917, at Tulsa, Oklahoma; that it was due one year after its date, bore 6% interest and stipulated payment of 10% attorney’s fees; that the firm of Blakeney & Maxey represented defendant in a suit in the District Court of Tulsa county, Oklahoma, against one M. E. McBride; that the suit was compromised for $200.00; that defendant directed him to deduct his fee and pay the balance of the $200.00 to plaintiff to be credited on the note sued on; that he deducted $25.00 as his fee and on April 21, 1919, paid over to plaintiff $175.00.

L. Wheeler testified that in 1920 or 1921, after defendant had moved from Tulsa, Oklahoma, to Shreveport, Louisiana, he had a conversation with defendant in Wichita Palls, Texas, and that in that conversation defendant told him he had not paid plaintiff the note that is the subject of this action and that he, defendant, was entitled to a credit thereon in connection with money that plaintiff’s firm had collected for him.

Proof was also made of publication in the “Daily Oklahoman” and “Oklahoma Times”, two newspapers of general circulation in the State of Oklahoma, of the loss of the note sued on.

Defendant, in his testimony, admits having given plaintiff his promissory note, says it was in payment for an automobile sold him by plaintiff, that it was for $600.00 and that he made the note and mailed it to plaintiff on July 19, 1917, and that it was due one year after its date. He denies having authorized the application of the $175.00 collected by plaintiff and his partner for his account as a credit on the note and says he had no knowledge of the collection until just before this suit was brought when plaintiff informed him about it and that he then disapproved of the transaction.

Besides 6% interest on the principal until paid the note stipulates for payment of 10% on the amount of both as attorney’s fees. Plaintiff has asked for damages as for a frivolous appeal, but they cannot be allowed.

We find no error in the judgment appealed from and it is therefore affirmed.