source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 12,334.
    Mrs. P. A. Coudroy, Widow, etc., vs. Joseph Pecot.
    When a succession no longer needs administration and the administrator is discharged, and the heirs put in possession, the co-heir who is the holder of a note payable on the settlement of the succession, can bring suit against his coheirs.
    If there has been no settlement of the heirs of their respective claims, the defendant co-lieirs can plead in compensation, debts due by the plaintiff heirs to them in the succession.
    APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Walter J. Burke and Philip H. Mentz for Plaintiff, Appellee.

      D. Caffery & Son for Defendant, Appellant.
    Submitted on briefs January 7, 1897.
    Opinion handed down February 1, 1897.
    Rehearing refused March 15, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs allege that they are co-owners and holders of a promissory note for two thousand one hundred and eight dollars and seven cents, secured by mortgage, made and executed by Anais Pecot and J. C. Pecot. The prayer of the petition is that Joseph C. Pecot be condemned to pay the above amount in principal and interest and for the recognition and the execution of the special mortgage securing said note. That Mrs. Angele Pecot be recognized as surviving widow in community of Pierre A. Coudroy, the payee on the note, and to be entitled to one-half of the amount of said rióte and interest, and that the children, issue of the marriage with Pierre A. Coudroy, be entitled to the other half.

The defendant filed an exception to the suit, averring that the same is premature, the obligation on which it is based not being due; that the note is payable at the date of the final settlement of the estate of Mrs. Charles Pecot, in which estate the exceptor and plaintiffs are heirs; that there had been rendei’ed by the court an order placing said heirs in possession, but the avowed and only object of putting the heirs in possession was to enable the heirs in said estate to make title to certain property of said estate over to the Pecot Sugar Factory Company, Limited, a corporation organized by said heirs for the better management of their business of growing cane and manu - factoring sugar; that but for the organization of said corporation and the necessity of making titles to it the order of putting the heirs in possession would not have been applied for, as the respective rights of the numerous heirs in said estate were then and are now unsettled; there being large and important accounts yet to be adjusted, and the final interests of the respective heirs yet to be fixed and settled; that the said heirs and plaintiffs understood then, and have since acknowledged that the said adjustment and settlement was yet to be made; that the plaintiffs are largely indebted to the said estate, as will be shown on such settlement, and that it was the intention at the time the obligation was made that the same should be paid principally out of the funds realized from said settlement.

This exception was overruled.

The defendant answered, reserving his exception, and alleging that the plaintiff was indebted to the defendant by reason of said want of settlement, and that this would offset the debt sued on.

There was judgment for plaintiffs, and defendant appealed.

The issues presented are contained in the exception, and the answer and exception may both be considered at the same time.

The note sued on reads as follows: '“At the date of the final settlement of the estate of Mrs. Felicite Sigur, widow of Oharles Pecot, late of said parish, both deceased, we promise to pay to the order of Pierre A. Coudroy, the sum of two thousand one hundred and eight dollars and seven cents, with 8 per cent, per annum interest thereon from date until paid, for value received.

(Signed) “Anais Pecot.

“J. O. Pecot.”

The act of mortgage recites: “ Being the same fund due and owing to said Coudroy by the said Anais and Joseph O. Pecot on a final settlement and liquidation of all accounts between said parties on the 23d day of July, A. D. 1881, which said sum the said Madam Anais and Joseph C. Pecot hereby acknowledge themselves to owe * * * payable to the order of said P. A. Coudroy in the final settlement of the estate of Mrs. Felicite Sigur, widow of Charles Pecot, both deceased, and now in the course of administration and settlement.

The litigants are all heirs of Mrs. Felicite Sigur. Madam Anais-Pecot is dead, and Joseph C. Pecot accepted her succession unconditionally.

On the application of the heirs of Mrs. Sigur, on the 29th of June,. 1893, the District Judge rendered judgment discharging the administrator of her succession, as there was no longer any necessity for the continuance of the administration. The heirs were thus placed in possession and there was an end of it. It was settled so far as the law could settle it. We can not, notwithstanding the evidence discloses the fact, say that it was settled for a specific purpose, to enable-the heirs to make title to property. The succession can not be considered as settled for one purpose only.

The suit was not, therefore, prematurely brought against the heirs-who have been sent into possession.

But the note and mortgage are payable on final settlement of the administration. The discharge of the administrator does not carry with it a presumption that all the heirs interested in the property have had their claims adjudicated between them. There has been no settlement among the heirs. The note is payable on final settlement. It is to be interpreted as being payable on a final settlement, between them.

It is recited in the act of mortgage that the amount of indebtedness was ascertained on final settlement between the heirs on the day of the execution of the note. Having been made payable on final settlement of the estate of Mrs. Sigur, there was evidently in contemplation a further settlement to be made between them, or the payment was deferred until the settlement between them, in view of future transactions between them.

We think the defendant is entitled to present the defence which he urges, that on final settlement between the heirs it will be found that the plaintiff has no claim against the defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and annulled and reversed, and it is now ordered that the case be remanded with leave to defendant to urge any claims or offsets that he may have against the plaintiffs, his co-heirs, and with directions to the lower court to proceed to judgment after a trial of the issues herein indicated. Costs of appeal to be paid by plaintiffs, all other costs to await final judgment.


author: Watkins, J.

text:
    No. 12,301.
    M. F. Fishel et als. vs. T. O. Stark et als.
    1. A party having become adjudicatee at tax sale, in 1875, of property on which there remained unpaid taxes of the year 1873, and thereafter having failed to pay the taxes of the years 1874, 1876 and 1877, it became subject to sale in 1889 under Act 82 of 1884.
    2. The only legal effect of the first adjudication was to oust the title of the then tax debtor and vest it in the adjudicatee, but it did not hinder the tax collector from subsequently proceeding to make a sale under Act 82of 1884 in theenforeement of taxes of 1874,1876 and 1877.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Ernest T. Florance for Plaintiffs, Appellants.

      Walter H. Rogers for T. O. Stark and W. H. Lockhart, Defendants, Appellees.

      Paul L. Fowrchy and O. McRae Selph for A. S. Gutierrez, Defendant, Appellee.

      Argued and submitted February 2, 1897.
    Opinion handed down March 1, 1897.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs, as the sole legal heirs of Lewis Fishel and of his wife, Frederica Metzger — both of whom are deceased— acquired by inheritance a certain tract of land, particularly described in their petition,situated in the city of New Orleans; and their averment is, that same was adjudicated to their father, at a tax sale made on 20th of April, 1875, and said sale was subsequently confirmed by the Auditor on the 18th of January, 1875, said property constituting a part of the matrimonial community.

They aver that their father was placed in possession of said property by the judgment of a competent court on the 21st of August, 1876, and that he has since remained and continued in peaceable possession thereof, until the 11th of November, 1892, when he sold his interest to T. O. Stark, one of the defendants.

They further allege that their deceased mother bequeathed to their father the disposable portion of her fortune, including the property in suit — that is, one-half of her estate; and that they consequently inherited an undivided one-fourth interest therein as their legitime — that is to say, one-fourth of the community assets.

Wherefore, their demand and prayer are for a partition in kind, and according to law.

Per contra the defendant, Stark, and the other defendants who trace through him, alleges that he purchased the whole of the property in controversy, at a tax sale made on the 12th’of November, 1889, under and in conformity to Act No. 82 of 1884, in the enforcement of the delinquent taxes due on same for the year 1879, and prior years, and assessed to Mrs. Charles C. Hamilton, and that under said adjudication he immediately went into possession under a writ issued in the suit entitled In re T. O. Stark, for Possession, etc.

He further alleges that on the 11th of November, 1892, subsequently, he purchased the rights of Mrs. Widow Hamilton, now Mrs. S. B. Thrasher, the tax debtor; and that he also acquired by similar purchase all the rights and interests of Lewis Fishel — thus protecting his title by the tax adjudication.

In the alternative, there is in his answer urged a reconventional demand for the sum of six hundred and ninety-five dollars and thirteen cents, amount of State and city taxes paid on the property since his purchase; the sum of two hundred and fifty dollars, amount paid Mrs. Hamilton for the transfer of her rights; and the sum of seventy-five dollars, the amount paid to Lewis Fishel for the assignment of his rights. And also, for other costs and expenses amounting to two hundred dollars — all aggregating one thousand two hundred and twenty dollars and thirteen cents, for which he prayed judgment.

There were various exceptions filed and overruled; and other defendants filed answers similar to those of Stark.

On the trial there was judgment dismissing the plaintiff’s suit, and they prosecute this appeal; and in this court they plead the prescription of three years, as a shield against the defendants’ attack upon the tax adjudication to their father, which is their primordial title.

Reference to the tax collector’s deed of 1875 will show that the adjudication was made for the unpaid taxes of 1873, under a current revenue law of that year; and that, six months later, that sale was confirmed by the auditor because there had been no intermediate redemption of the property.

But the record shows that on the 12th day of November, 1889, the tax collector, acting under and by virtue of Act 82 of 1884, adjudicated the property in controversy to the defendant, Stark, in the enforcement of the taxes due thereon prior to the 31st of December, 1879 — including those of the years 1872, 1877' and 1878, amounting to one hundred and thirty-four dollars and fifty cents.

The proces verbal of sale, amongst other things, recites, that said property had been duly and legally assessed for those years, as that of Mrs. Charles Hamilton.

The record further shows that under a writ of possession, regularly and formally issued and served, the purchaser was sent into possession conformably to law and the aforesaid adjudication.

There appears in the record a statement of the taxes which the defendant, Stark, as purchaser, assumed as part of the purchase price, and which he paid — including those of the years 1874, 1875, 1876 and those of 1880 to 1894, inclusive, aggregating in capital the sum of six hundred and sixty-five dollars and sixty-one cents.

Conceding for the argument all that is claimed by the plaintiffs, it is quite evident that their ancestors failed, during the years subsequent to tlieir purchase in April, 1875, to keep down the taxes on the property, and it consequently became amenable to tax sale again in 1889, when the defendant, Stark, became adjudicatee under Act 82 of 1884.

In our view there is no room for doubt of the legality or validity of the adjudicatee’s title.

The Fishel heirs have only the standingin court of their ancestors, and it is of no consequence that they acquired title at tax sale.

Its only effect in law was, or could be, to oust the then tax debtor and vest his title in Fishel as adjudicates. The property having been subsequently assessed, and the proper assessment having been carried on the roll, it was liable to sale under Act 82 of 1884.

The principles upon which such a sale as this is sustained have been so frequently announced that it is deemed unnecessary to repeat them; hence we merely refer to a few of the adjudged cases, to-wit: In re Orloff Lake, 40 An. 147; In re Douglas, 41 An. 765; Dibble vs. Leppert, 47 An. 792; Remick vs. Lang, 47 An. 914.

Regarding the decree appealed from as a final judgment, it is affirmed-.


text:
    No. 12,305.
    Louis T. Michener et als., Trustees Land Trust of Indianapolis, Indiana, vs. Jacob A. Reinach.
    A PPEAL from the Civil District Court for the Parish of Orleans. ^ King, J.

      E. Howard McCaleb for Plaintiffs, Appellees.

      Benjamin Ory for Defendant, Appellant.
    Argued and submitted February 7, 1896.
    Opinion handed down February 17, 1897.
   The opinion of the court was delivered by

McEnery, J.

For the reasons assigned, ante, p. 360, between same plaintiffs and defendant, the judgment appealed from is affirmed.


author: Breaux, J.

text:
    No. 12,311.
    Kansas City, Shreveport & Gulf Railway Company vs. A. V. Roberts.
    The reconventional demand for damages brings up the issue for our determination.

      Value of the Land. — The jury’s estimate of the value of the land expropriated for a roadbed was supported by the weight of the testimony. It is affirmed.

      General Damage.-^The other items of damages were examined; some of them were lowered, and in consequence the items grouped aa “ general damages ” were reduced to one thouaand and ninety dollara.

      Costs. — The rights of the parties as relates to costs were correctly passed upon by the District Court.
    A PPEAL from the Ninth Judicial District Coart for the Parish of ft De Soto. Hall, J.

      William Goss for Plaintiff, Appellant.

      Lee & Liverman for Defendant, Appellee.
    Argued and submitted January 20, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action brought by the plaintiff against the defendant to expropriate a tract of land, one hundred feet in width, through the latter’s plantation for a right of way.

Plaintiff’s right of expropriation was not disputed by the defendant, who pleaded in reconvention:

“ Value of fourteen acres right of way............................................................ $350 00
“ General Damages—
“ Value of pasture desti’oyed and moving fence.............................................. 75 00
“ Damage to spring.............................................................................................. 200 00
“ Sugar cane planted........................................................................................... 125 00
“ Damage to gin house and loss of patronage................................................... 880 00
“ Damage to water tank.............................................................................. 2,000 00
“ Other damages.................................................................................................. 500 0q
$4,130 00”

The case was tried before a jury. The verdict was for plaintiff, expropriating the land. On the reconventional demand the defendant was awarded the sum of two hundred and eighty dollars, value of the land, and the sum of one thousand three hundred and thirty dollars, general damages.

The plaintiff was further condemned “to provide and keep in repair sufficient crossings and cattle-guards for the use of defendant’s plantation, also to keep in repair the mill pond.

The plaintiff prosecuted this appeal.

The defendant, in the answer to the appeal before this court, asked •for amendment of the judgment appealed from, in manner and ■amount prayed for, in his answer and demand in reconvention filed in the lower court.

The amount allowed for the value of defendant’s land presents the first question for our determination. It was considered by the jury as a separate item, and it found that it was worth twenty dollars an acre.

The complaint is that the jury failed to distinguish between the actual value of the land taken and damages arising from the fact of taking a small strip of land through defendant’s plantation; which is covered by his claim for general damages.

We have not found that the complaint is properly founded. Three of plaintiff’s witnesses testified as to the value of the land. One of these two witnesses said that land is not worth any more where a railroad takes a strip of a hundred feet through the centre of a house or a plantation than land in a body. Which is the correct view in fixing a positive value? This witness, with exact judgment in regard to value, said finally in answer to the question:

“Then it is worth more than ten dollars an acre?”

A. “ I stated that it was worth about that. The other witnesses for plaintiff valued it at much less.”

Four witnesses testified on the part of the defendant. Their testimony and that of the defendant himself place a higher value on the land than the amount of the verdict. It is true that the estimates vary considerably between the maximum of value as sworn to by plaintiff’s witnesses and the amounts stated by defendant’s witnesses as the value.

Land which produces three-quarters of a bale to the acre is worth more than ordinary land, although to produce this quantity the field was fertilized.

The verdict adopted, we think, is the correct medium between these respective estimates.

The next amount claimed was for moving the fence on defendant’s land and the loss of his pasture land. This and all other items are included (save the value of the land, as before stated) in the amount of thirteen hundred and thirty dollars allowed by the verdict for damages.

The number of yards of fence removed was six hundred and the number of acres in the pasture was nine. Building the road, as we understand, made it necessary to remove the fence and abandon these nine acres as pasture lands.

It caused some damage and was a proper subject to be considered by the jury.

The testimony was not rebutted and fixed the amount correctly, in our judgment.

With reference to the spring, the next item of damages claimed, the defendant urged that before the construction of the roadbed, it furnished him water for his stock, for the use of his family (washing), and for the tenants (but it never was, it appears, a strong spring). The defendant also averred that since the construction of plaintiff’s roadbed this spring does not furnish half as much water. He apprehended, he asserted, that it will entirely fail. He has, in addition, only a small well which furnishes a scant supply of water.

The evidence does not sustain the correctness of the amount claimed for this spring, nor that it has been damaged to any great extent. The amount allowed should be very much less than the amount claimed.

For the acres planted in cane, destroyed, it is not denied, by the railroad hands, an amount was unquestionably due by the plaintiff, although it should be less than claimed.

Damage to gin house and loss of patronage the defendant fixed at eight hundred and eighty dollars. The steam gin operated by the defendant is at a distance of about one hundred feet from the railroad. He complains that the proximity of the road increases the danger from fire, and the testimony shows that several of his customers declared that owing to the increase of danger from fire they would not gin their cotton at his gin.

The evidence to sustain this claim is not clear and satisfactory; besides the claim itself is in character remote and consequential. Something should have been allowed, much less, however, than is claimed.

The next item is for damages to the artificial pond of the defendant that supplied water to run his gin. The preponderance of evidence shows that the new pond holds more than the old pond held. The lift of the water from the pond to the gin is a little more difficult and requires a few more pounds of steam. The defendant consented to the change as made. The maxim volanti non fit injuria applies. We infer from the defendant’s testimony that the water facilities are about the same as they were before the new pond was made.

There was an item in addition for general damages growing out of the difficulty caused in crossing and recrossing the railroad track on the place, the -inconvenience occasioned by the road and other alleged annoyances.

We footed up these damages as well as we could, at one thousand and ninety dollars. It is true that the verdict of the jury is entitled to great weight and that it should not be disturbed, unless manifestly erroneous. We did not have before us the different' items found by the jury in determining the amount of damages.

The total of items of damages found by us is less. We have not discovered that the difference between the amount of our decree and that of the verdict is sustained by the weight of the testimony.

With reference to the condition included in the judgment of the lower court, about repairing the pond and other repairs, the plaintiff urged that they were not an issue of the case. They were closely related to the issues and were made evident during the trial without any objection. Evidence, admitted without objection, may be considered, and the issues it represented, determined, although not supported by the pleadings.

A rule has been filed to have taxed as costs against the plaintiff, the mileage and per diem, of the jurors summoned in accordance with Art. 2632, C. O.

The judgment correctly rejected the demand. Vicksburg, Shreveport & Texas Railroad Co. vs. Hart, 15 An. 507; City of New Orleans, praying, etc., 20 An. 394.

It is ordered adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed by the lower court for “general damages” (viz.: one thousand three hundred and thirty dollars) to one thousand and ninety dollars, the amount allowed by this decree for general damages. As amended the judgment is affirmed at appellee’s costs.


text:
    No. 12,328.
    G. Herbert Ellerbe vs. Henry C. Minor.
    A contractor is responsible for the damages resulting from his failure to complete the work.in time.
    The price was due, less the damages.
    There was no negligence or failure of the defendant to take reasonable precautions to reduce the damages.
    The operations usual in saving a crop of cane were those adopted in matter of grinding defendant’s cane.
    The evidence is indefinite; the amount and value of the unfinished work was not shown. We are not satisfied that justice requires a disturbance of the judgment of the lower court.
    A PPEAL from the Eighteenth Judicial District Oourt for the Parish of Terrebonne. Oaillouet, J.

      Philip H. Mentz for Plaintiff, Appellant.

      L. F. Suthon for Defendant, Appellee.
    Submitted on briefs January 4, 1897.
    Opinion handed down January 18, 1897.
    Rehearing refused March 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

This action was brought by the plaintiff for one thousand five hundred and forty-one dollars and four cents, balance claimed on a written contract for which he recovered judgment subject as credit, to a portion of the amounts which the defendant in his reconventional demand claimed as due.

The amount of the demand in reconvention is within the jurisdiction of this court, and the reconventional demand alone is before the court. From the judgment (on this reconventional demand) the plaintiff and the defendant prosecute this appeal.

The facts are that the plaintiff, Ellerbe, agreed to lay a railway on defendant’s plantation; to furnish the materials and to erect two cane hoists.

The defendant avers that the track was to be completed and ready for use by September 15, 1894, in time for hauling his cane crop.

He alleges that he had not the use of the railway in time to haul his entire crop and that he had to expend an amount for putting the track in proper condition. The consequent damages he claims aggregating two thousand and six hundred dollars.

The first issue here involved is non-performance of the contract by plaintiff within the specified time and damage for consequent breach.

The questions are principally of fact. We have, for that reason, made as complete a summary as possible of the testimony of the witnesses.

The plaintiff in his testimony as a witness admits that the road was not completed and ready for service at the date stipulated in the contract. It appears that on the 5th of November the road was not completed. On that date the plaintiff informed the defendant, Minor, that there was no objection to his using the road, when safe for the running of cars and locomotives, and further that such use would not be considered by him as an acceptance of the road.

The civil engineer who had charge of the construction for the plaintiff testified, that one-half of the road was completed about the first of November, and the remainder about the middle of that month, at which time it was in sufficiently good order to be used.

Subsequently, the witness says, he told the defendant that the road was completed about the 18th or 20th of November, and that about a week after the defendant had it inspected while the witness, who was a subcontractor or had some interest in the work, was on the plantation, and had been informed that an inspection would be made.

The road, although inspected, was not inspected by a civil engineer, as required by one of the stipulations of the contract.

A roadmaster of the Southern Pacific made the inspection. It was objected that he was not qualified to pass upon the work as required by the contract. His opinion was that the work was roughly done and not at all in a workmanlike manner. Another witness testifies that the grinding of cane began on the 11th of October. He was the engineer at the mill.

He corroborated, in some respects, the testimony of the witness who made the special examination of the track. He testified that the cars were received on defendant’s plantation a few days before the grinding began. A part of them were ready for use on the day the defendant began hauling his cane and the remainder a few days thereafter.

The manager of the plantation testified that there was considerable delay in completing the road; that the first cane hauled in the cars over the railroad was on the 9th of November; that from the 11th of October to the first date, cane was hauled to the sugar house in wagons, and that altogether, between those dates 6926 tons were hauled in wagons; that the difference in favor of cars, as between cars and wagon hauling, is twenty-three and one-half cents in favor of the former.

With reference to minimizing damages, he testifies that the defendant began to cut his cane and to haul it from places in the fields most advantageous to the proprietor, having in view the saving of the crop, and that the operations in taking in the crop were conducted with due regard to lessening the loss.

As to any necessity to have placed the plaintiff in default as a condition precedent to a demand for damages.

By the conditions of the contract the subsequent agreement between the parties to the contract and the admission of plaintiff as a witness during the trial, we think we are justified in concluding that it is not an issue in the case.

Moreover, it is not referred to in plaintiff’s brief.

We pass from it and take up the actual issues before us for decision.

The plaintiff, in view of the facts, is only bound by the loss defendant has sustained growing out of the failure to timely complete the work required by the stipulations of the contract. C. O. 1934.

The difficulty of determining the amount of the loss with precision is manifest. In appreciating the facts and fixing the amount due the rules of equity necessarily must have great weight.

First, as to the failure to complete the road in time and the extent ■of the loss it occasioned.

The weight of the testimony amply shows that the road was not ready for use before November 9.

The testimony is conflicting as to the date the defendant was ready with his cars to begin hauling. The District Judge fixed the 11th of October, the date this hauling commenced, andas the day the defendant had a sufficient number of cars ready for use, if the road had been ready to obviate the more expensive hauling with wagons. The testimony would not warrant us in disagreeing with the court a qua as to this date.

We think it is correct and that it was not improperly determined,, that the defendant, under the conditions of the contract, was entitled to the use of the road on the 25th of September, in order to be-amply in time to haul his cane, and that on the 11th of the month following he had a sufficient number of cars to haul his cane. It is true that there was some delay in setting up the cars. The fact remains that there were a number of them ready for use on the 11th, and the gist of the testimony is that all the hauling would have been by cars had the road been ready for use at the time agreed upon.

The plaintiff, in the second place, urges an objection that it was. the duty of the defendant to minimize his losses when he saw them approaching.

The principle stated implies that one who has been negligent should not recover the damages he might have avoided. The evidence does not disclose that the defendant was negligent or that his acts were such as to aggravate the loss. He could not be expected to lessen the possibility of saving his own crop, or of incurring a loss-in the cane’s yield, by cutting and hauling cane with the view of minimizing damages. We are informed by the testimony the defendant began by cutting his stubbles at places in the field as in preceding years.

The Usual judgment in such matters was exercised, and there was-no improper act in this respect giving ground for complaint. The-object, it was said — and it was not contradicted — was to save the-crop. In this plaintiff also had an interest. In ease of loss of crop, a question of damages might have arisen.

The plaintiff, appellant, in regard to the damages we have-discussed, urged that no damages should be allowed, while the defendant claimed a larger amount. We think the judgment is substantially correct.

The defendant also claims that the trackwas so defective and badly-made that he was put to an expense of seven hundred dollars to put it in proper condition.

A plea in reconvention, in order that it may be allowed and judgment;granted thereon, must be sustained by testimony proving up the claim pleaded.

In general terms the defendant testified that his expenses to repair the deficiency in the work was about the amount claimed.

No account was kept, at any rate there is no account of- record and not one of the items of these expenses were proven by reference to the item itself. No legal claims for damages on this ground is made out.

The defendant has had his day in court and has failed to make satisfactory proof of his claim for repairs. We do not think that he is entitled to a non-suit.

The purpose of the suit was to settle the mutual claim pleaded.

The defendant having failed to sustain his plea with sufficient evidence, we do not think that the rule applying would justify us in dismissing the demand as in case of non-suit.

Moreover, the facts and circumstances were such as to require a notice to the contractor from the owner before undertaking and finishing the unfinished work.

Another question of fact involved here was as to cane hoists. They did not, at first, prove satisfactory and some change had to be made. The .estimate of the needful cost chargeable to plaintiff varies. The amount of credit given in the judgment for the change-made, we think, should remain as it is.

Judgment affirmed.

On Application for Rehearing.

The application is based principally upon fact. The defendant-claims that on his reconventional demand, damages should have been allowed for twenty-nine days instead of fifteen days.

We have re-examined the record and have found that the manager, of defendant’s plantation testified that the first cars to be used on the road in question were received between the 86h and 10th of October, and that the 'whole eighty cars were ready for use fifteen days from the day the first car arrived.

This statement, we think, is supported by the weight of the testimony of the other witnesses and sustains the correctness of the-number of days fixed by the decree.

With reference to the item for alleged extra work, in that respect-also we have found no cause to alter our decree.

Rehearing refused.


author: Breaux, J. Miller, J.

text:
    No. 12,322.
    Succession of R. L. Robertson, Jr.
    The will in controversy was written on a printed heading.
    An olographic will must be entirely written, dated and signed by the testator.
    However conclusive the evidence that it contains the dispositions of the testator, it is none the iess null, unless the essential formalities are complied with.
    The date includes the year, month and day, any one of which being missing is fatal to the yalidity of the will.
    "The document attests the “ printed heading” and shows conclusively that the date was not written by the testator; the testimony of witnesses (whose attention, it appears, was not called to the printed headlines) “• that the will was written by the testator” will not overcome thefaetmademanifest by the testament itself, that it was not entirely written by the testator.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. 8. Benedict for Executrix, as such and individually, Appellant.

      Buck, Walsh & Buck for Mrs. Cora Robertson Cuevas, Opponent, Appellee.
    Argued and submitted February 5, 1897.
    Opinion handed down February 15, 1897.
    Decree supplemental and rehearing refused March 4, 1897.
   The opinion of the court was delivered by

Breaux, J.

This appeal is prosecuted from a judgment of the District Court in which it is decreed that the will of R. L. Robertson, Jr., probated on the 6th day of August, 1895, is a nullity.

The following is a copy of the olographic will annulled:

“ New Orleans, December 12, 1892.
“ I, Richard Lamb Robertson, being of sound mind and body, and in full possession of all my faculties, do make this my will and testament:
“To my dearly beloved wife, Cora Celeste Davidson, I owe all my present prosperity, and I give to her all my personal property, and leave to her the usufruct of all my estate during her life.
“ I also appoint her my sole executrix, without bond and with full' seizin.
(Signed) “Richard Lamb Robertson.
“Witness: Joseph B. Wolfe, Jr.”

We have had occasion to refer to this testament in a case heretofore decided, having the same title. Succession of Robertson, 49 An. , No. 12,191.

The will, the validity of which was assailed, was written on one of the letter-heads of the testator, having the words “ New Orleans ” ’ and the figures “189” of the year in print. The following is the only written date of the will: December 12-2. The appellant widow of the deceased R. L. Robertson, Jr., urges that the will in contest fulfills all the requirements of the law.

The requisites under the article of the Oivil Oode, to the validity of the olographic will, “that it be dated,” does not import the-necessity of mentioning the place at which it was dated.

The printed words, “ New Orleans,” give rise tono issue in the-case. It is different in regard to the date of the will, which, in ordeto be valid, must be “ entirely written, dated and signed by the hand of the testator.” Under the precise language of the article, the-date is one of the essential formalities of an olographic testament. The nullity is formally pronounced by the law itself. It has been-decided that absence or uncertainty of the month or the day of the testament, is cause to decree it null; for better reason, the ruling should be the same where the year is not stated or is left to mere conjecture. The “year” printed or written by another is not a date in the hand of the testator, made the essential of a valid will. The law enjoins the date on two grounds: the first, the most essential, is in order that the precise date the testator made a disposition of his property may be known, rendering it possible to determine-whether the testator had the capacity of giving at the iime the testament was made.

The second ground is secondary; if there are two testaments, it should be manifest which is the last, in case of opposing or incompatible disposition.

In either case, the date written by the testator is an essential. We have cited these “motives ” or grounds in support of the raison d’etreof the law, but without these “ motives” or grounds, it is enough to-justify the decree declaring the will null that a substantial condition to its validity is lacking.

In Lewis’ Heirs vs. Executor, 5 La. 396, this court said: “ The law, in its anxiety to guard against the testator being circumvented or practised on, will not permit a testament to have any effect, no matter how strong the moral evidence may be that it contains truly his last disposition of his property. The formality (our Code says) must be observed, otherwise the testaments are null and void. * * *

“Courts of justice, thei’efore, can do nothing else but inquire, when a case of this kind arises, whether the formalities have been pursued.”

The appellant insists that there is no proof before the court that the date was printed as stated, and urges that in these days of skilled penmen and draughtsmen, the eye to which print or engraving is manifest can not always be trusted in opposition to the oath of three reputable witnesses.

The testament as written by the testator is before us. It is manifest that the date is printed. The testimony of witnesses, whose attention was not directed to the printed heading of Che paper on which the testimony was written, can not make that to be written which is not written.

It is too.plain to admit of question that the words and figures are printed.

Lastly, the appellant cites authorities in support of the proposition that writing, in its legal sense, includes what is printed as well; that while it is decided, for instance, to be essential to a deed that it should be in writing, yet printed forms have been in use from time immemorial. The appellant also quotes the definitions from a number of dictionaries as evidence that writing not only means words traced with the pen or stamped, but printed or engraved words. The argument would lead to the conclusion that it would be possible for a printer or engraver to print or engrave a portion of his testament.

Writing must betaken in its ordinary sense: to set down legible characters with pen and ink. The writing essential to a deed may include printed words without violating a prohibitory law.

But in the matter of an olographic testament, it must be written the pain of nullity is inevitable.'

The judgment is therefore affirmed.

On Application nor Rehearing.

Miller, J.

On the previous appeal in this succession we disposed of all the questions at issue between these parties except those relating to the validity of the will and the appointment of an administrator. It was not our purpose in the judgment on this appeal to disturb our previous decision, but to annul the will. On this application it is brought to our notice that our decision on this appeal affirming that of the lower court goes beyond our purpose. The necessity of the appointment of an administrator for this succession is not apparent, as the administration appears to have been completed by the executrix under the will which our decision annuls. We will leave that question open.

It is therefore ordered, adjudged and decreed that our decree on this appeal be amended as herein stated, and accordingly it is now ordered, adjudged and decreed that the judgment of the lower court be affirmed in so far as it decrees the nullity of the will of the deceased, R. L. Robertson, Jr., and in all other respects that said judgment be avoided, annulled and reversed, reserving to the parties the right to provoke the appointment of an administrator if in the opinion of the lower court any such appointment should become necessary.


author: Milder, J.

text:
    No. 12,343.
    J. H. Kirkpatrick, Tax Collector, vs. The Davis Clock Co. et als.
    The occupation of carrying clocks in a one-horse vehicle and selling them to those disposed to buy, subjects the party pursuing the occupation to the peddler’s tax prescribed by the eleventh section of the Act No. 38 of 1894, not to the tax of traveling vendors imposed by the Act No. 150 of 1890.
    A PPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      M. J. Cunningham, Attorney General, and E. H. McClendon, District Attorney, for Plaintiff, Appellee.

      Jno. B. Phipps and J. E. Moore for Defendant, Appellant.

      Argued and submitted January 21, 1897.
    Opinion handed down February 15, 1897.
   The opinion of the court was delivered by

Milder, J.

The appeal is by defendant from the judgment imposing on it a license tax as traveling vendor of clocks.

The only business of defendant is that conducted by its agent who carries his clocks in a one-horse hack, and sells them on his rounds through the parish to those disposed to buy. Defendant’s contention-is that the only license there can be exacted for that business is that required of peddlers and hawkers on foot, horseback, or carrying his wares on a horse or other vehicle. Act No. 38 of 1894, Sec. 10. There is, in our view, a clear application of this peddler’s tax to the occupation of defendant’s agent, and hence the defendant is not subject to that section of the act of 1890 on “ traveling vendors,” under-which the license tax in question was sought to be exacted.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed and plaintiff’s rule dismissed-at his costs.


author: Miller, J. McEnery, J.

text:
    No. 12,360.
    Caperton & Dreyfous vs. Forrey & Trammell et al.
    Damages, not specific performance, is the usual relief for violation of contracts, when the loss to the injured party is susceptible in compensation in money. O. 0., Art. 1927.
    An obvious limitation of the power to compel specific performance arises when the act required to be performed is beyond the ability of the defendant.
    APPEAL from the First Judicial District Court for the Parish of' Caddo. Land, J.

      Leonard & Randolph for Plaintiffs, Appellants.

      Alexander & Blanchard for Youree, Defendant, Appellee.
    Argued and submitted January 20, 1897.
    Opinion handed down February 15, 1897.
    Decree supplemented and rehearing refused March 1, 1897..
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, appellants from the judgment dismissing their demand, sued to compel the defendants to close a door opening from premises leased by one of defendants to a party not before the court.

The defendants Forrey & Trammel leased from Youree, the other defendant, a hotel, the corner of which on the lower floor was used as a saloon, the lessor binding himself not to lease for saloon purposes another building owned by him designated as No. 308; thereafter the defendants leased the corner to plaintiffs, the lessor of defendants joining in that sublease and agreeing that plaintiffs should have the benefit of the stipulation not to lease No. 308 for saloon purposes contained in the lease to defendants. The defendant Youree, thereafter, did lease No. 308 with the stipulation it should not be used for saloon purposes, but gave to the lessee the control of the doors, one of which, as we understand the record, opens into the corridor and rotunda of the hotel which adjoins No. 308. The lessee of 308 also is lessee of Nos. 306 and 310 on either side of 308-The purpose of the stipulation not to lease No. 308 for a saloon was obviously to protect plaintiffs leasing the corner for saloon purposes, against the competition of the same business if carried on in 308, with an opening into the rotunda, and this stipulation the defendant Youree sought to observe in his lease of 308. But the lessee-of 308, 306 and 310 discontinuing the use he had made of 308, which we infer was that of a restaurant and bar, has established a bar in 310, easy access to which is obtained by opening a door leading into the hotel rotunda and through which 'the hotel guests and habitues, enter on a passage leading directly to the bar established in 310 and in full view from the passage. Thus, the plaintiffs complain that, though the prohibited use is not made of 308, the competition with their business is accomplished to their injury by the door opening from 308, and this is, they aver, practically a violation of the agreement of the defendants in their lease to plaintiffs of the corner.

The suit is in effect for the specific performance of an alleged contract. Suits of this character are not entertained unless the right is clear and the remedy plain and free from difficulty. As a general rule, when the wrong to be redressed admits of compensation in money, the law confines the relief to an action of damages. Civil Code, Arts. 1934, 1935, 1927; 1 Story Equity Jurisprudence, p. 714,, as to specific performance. Rice vs. Rice, 46 An. 712. Here the wrong done is the diversion of plaintiff’s custom, clearly compensaable in damages. The relief asked is that these defendants close a door on the premises of another party. The defendants have no control over the door and could exercise none without violence. Whether defendants have violated their contract with plaintiffs we are not called upon to determine, bub it seems clear that the court is powerless to grant the relief sought.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

On Application nor Rehearing.

McEnery, J.

Plaintiffs apply for a rehearing solely for the pur-pose of requesting the court to amend the decree, reserving all Tights and actions plaintiffs have to recover damages against defendants. While it is unnecessary to thus amend the decree, we will do so.

The decree heretofore rendered in the case is therefore amended, ■so as to reserve to plaintiffs all rights and actions they may have against defendants for damages. This amendment to the decree will not release plaintiffs from costs.


author: Miller, J.

text:
    No. 12,370.
    Ernest B. Baker et al. vs. John M. Lee and Jule W. Parks.
    1, When mortgage creditors with a common interest,whose aggregate claims exceed two thousand dollars, unite in a suit to have canceled, on the ground of simulation, a mortgage exceeding two thousand dollars, the Judgment ia their suit is appealable. 2 An. 984.-; 43 An. 1041; 2An. 908; 35 An. 206.
    2. The sheriff’s act of sale stating compliance by the purchaser with the terms of of sale, spread on the public records, will protect the bona fide mortgagee who acquires his mortgage for value from the recorded owner on the faith of his title. This case is distinguished from that of the People’s Bank vs. David, recently decided.
    3. The members of a planting firm acquiring immovable property become joint owners, and a mortgage by one, though using the firm name, will bind only his half of the property. O. C., Art. 2870, par. 5; 3 La. 497; 10 La. 420; 17 La. 596; 47 An. 346.
    4. A mortgage can not be established by parol, nor will a ratification in writing relate backso as to give that validity to the prejudiceof other creditors to the alleged mortgage it did not possess when executed. Civil Code, Art. 3365; 2 La. 572.

      5. The clerk of the District Court, ex-officio parish recorder, is liable for the loss arising from his omission to record in the book of mortgages and privileges an. act of sale placed in his hands, giving rise to the vendor’s privilege and reserving a mortgage for the unpaid portion of the price. Constitution, Art. 121; Revised Statutes, Secs. 3550, 3580, 3066, 3091; C. C. 2231.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Gunby & Sholars and A. A. Gunby for Plaintiff, Appellant.

      Boatner, Potts & Hudson for Meyer Brothers, Defendants in Rule, Appellees.

      Stubbs & Russell for C. C. Madden, Defendant and Appellant.

      E. T. Lamkin for I. Garrett, Defendant, Appellee.
    Argued and submitted January 22, 1897.
    Opinion handed down February 1, 1897.
    Decree supplemented, rehearing refused March 1, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by plaintiffs, heirs of one of the parties in a partition suit from the judgment on their rule to erase a mortgage granted by the adjudicatees of the succession property, and which ranks that of the heirs upon the property to secure the price of the adjudication. The defendants in the rule were those holding the mortgage notes of the adjudicatees and the sheriff and the clerk. 'The mortgage securing these notes was attacked as fraudulent; the petition further avers that the property, having been purchased at a sale made to effect a partition in which minors were interested, the sale being on terms part cash and part in the notes of the adjudicatees now held by the plaintiffs, the heirs, that no title vested in the adjudicatees without payment of their notes, and hence the mortgage granted by them is void. In the petition it is also claimed that the mortgage assailed was not executed by the adjudicatees, because signed in the name of their planting firm by one of them; and it is charged also that the mortgage notes given by the adjudícateos were acquired by defendants after maturity and with knowledge that the notes were fictitious. The clerk and sheriff are sought to be held in the event of the failure of the attack of plaintiffs on the mortgage. Their liability is urged on the ground of their omission to record the sheriff’s act of sale of the succession property, the judgment in the partition suit directing that the credit, portion of the price should be secured by mortgage, which duty imposed by the judgment could only be accomplished by the registry of the act as a mortgage, and by the omission of this duty the adjudicatees were enabled to create the mortgage the heirs now find opposed to them. The defendants, the note holders, deny all allegations impugning their mortgage, aver the acquisition of the mortgage notes in good faith for value and before maturity, and the sheriff and clerk deny liability. The judgment of the lower court maintained the mortgage granted by the adjudicatees, dismissed the demand against the sheriff and decreed the clerk liable for the notes held by plaintiffs in rule. From that judgment this appeal is by plaintiffs and the clerk.

There is a motion to dismiss the appeal on the ground that the notes held by each of the heirs is not sufficient to give jurisdiction. The heirs or some of them join in the rule to erase the defendant’s mortgage. The amounts of the notes held by them exceed two-thousand dollars. The mortgage attacked by them is seven thousand dollars. It is virtually a contest as to the validity of this mortgage, each in amount exceeding two thousand dollars. The plaintiffs have a common interest and the defence-is the same of each note holder claiming adversely to the plaintiffs. We think the case is appealable. Williams vs. Vance, 2 An. 908; Colt vs. O’Callaghan, 2 An. 984; Kahn & Bigart vs. Sippili, 35 An. 1041; Bier vs. Gautier & Godchaux, 35 An. 206.

The sale of the property was made by the sheriff in precise accordance with the order of the court, the price payable part cash and the residue in notes, the usual mortgage to be retained. The adjudicatees were John M. Lee and J. M. Parks. The purchasers complied with the terms; the act stated that compliance and the reservation of the mortgage to secure the credit portions of the price. The sheriff handed the act to the clerk ex-officio the recorder, but he failed to record the act in the appropriate book to exhibit mortgages and privileges. Thereafter, the mortgage was executed by the purchasers under which defendant’s claim, the mortgage certificate exhibiting no mortgage to secure the price of the adjudication by the sheriff. The effort of the plaintiffs is to overcome the difficulty they encounter in this mortgage of the adjudicatees, and that difficulty is due to the omission of registry of the mortgage arising in plaintiffs’ favor as heirs from the sheriff’s sale of the succession property.

The sheriff’s sale passed the ownership. The titl'b of the purchasers standing on the records gave validity to the mortgage granted by them. Richardson vs. Hyams, 1 An. 286; Boudreau vs. Bergeron, 4 An. 84; Thompson vs. Whitbeck, 47 An. 49. The act announced that a mortgage was reserved for part of the purchase price, but that recital was not at all restrictive, but, on the contrary, affirmed the right to sell subject to such mortgage as the records might show. In the recent case of The People’s Bank vs. David, ante, p. 344, the act relied on to convey ownership shows on its face that no cash was paid, but was yet to be paid to complete the partition, and we held the act was notice to the parties who took a mortgage with knowledge of this incomplete title of the mortgagors. Here the title of the purchasers at the sheriff’s sale was complete by the payment of the cash and the giving of the notes required by the terms of the sale. The mortgagee had no duty to see that the notes were paid. If not paid, he had the right to assume that the mortgage certificate would disclose the non-payment. The mortgage, never recorded, resulted in the] furnishing a clear certificate on which the defendants in rule acted and had a right to rely. We think, therefore, the non-payment of the notes given by the purchasers affords no ground to attack the mortgage they made.

The mortgage granted by the purchasers, as is usual when negotiable notes are to be issued, is in favor of a nominal party. The testimony shows that the notes were afterward acquired for value before maturity by the present holders. The fact there was no debt due to the mortgagee named in the act is no ground to assail the mortgage, nor does the taking the notes as collaterals for debts of the mortgagors at all affect the title of the parties as holders for value. Brewer vs. Gay, 24 An. 35. The testimony, however, discloses that there has been a payment to one of the holders, the Ouachita Bank, on account of the principal debt, the credit for that payment being in suspense by a garnishment from the-other note holder, Meyer Bros. It seems to us that credit should be attributed to the debt of one or other of these parties, and thus the-amount of the mortgage notes having priority over plaintiffs’ debt may be diminished. So, again, the testimony shows an attachment by Meyer Bros, against-the mortgagors, and the result of that attachment is not ascertained. It may be that there is a credit from this source on the Meyer, debt, and a consequent diminution of' the amount they are entitled to claim on the collateral mortgage-note. The plaintiffs in the rule must, of course, suffer by the omissions to record their mortgage, but they are entitled to have the-mortgage confronting them reduced by all proper credits, and as-this .suit will have to be remanded, our decree will provide for the-ascertainment of all credits.

The extent of the mortgage of the defendants in rule is the next inquiry. It is too clear to need more than the statement that John M. Lee and J. W. Parks were joint owners by their purchase at the sheriff’s sale, and neither could mortgage the undivided half of the other. The act of mortgage is signed Lee & Parks, and is executed by Lee alone. It is now claimed that Parks authorized its execution. Under our law the mortgage must be in writing, and parol proof is inadmissible. Hence the effort to show by testimony that Parks-authorized the mortgage must fail. Civil Code, Arts. 2870, 3365, par. 6; Skillman vs. Purnell, 3 La. 497; Bach vs. Ramos, 10 La. 420; Calder & Co. vs. Their Creditors, 47 An. 346; Moore, Collins’ Administrator, vs. Louaillier et at., 2 La. 572. Nor is the position of defendants in rule improved by the written ratification tendered on the-trial of the rule by Parks of the mortgage by his planting partner. If there was no mortgage effected on Parks’ one-half by the mortgage signed by Lee, it could not be created by a ratification tendered afterward; at least not to the prejudice of plaintiffs. It results that, the mortgage is operative only on the one-half of Lee.

The clerk of the District Court is under the Constitution parish-recorder. Art. 121. It is his duty to record all acts embracing a-mortgage or privilege on the book provided by law for such registry. Revised Statutes, Secs. 3550, 3080, 3066,3083,3094; C. C., Art. 2234.. The act of sale by the sheriff under consideration in this case was-delivered to the clerk by the sheriff, and the duty of registry was a fiat once imposed on the clerk by the law. It is of no avail to urge-hat no instructions to register were given by the parties or by the sheriff. The law gave the direction. We are of opinion, therefore,, that the cleik is responsible for the omission to record the act, the omission resulting in enabling the purchasers at the sheriff’s sale te create the mortgages on the property which defeats that in favor of the heirs directed to be reserved by the judgment in the partition suit.

We are asked to reverse the judgment of the District Oourt and hold the sheriff liable. His function, we think, was fully discharged when he delivered the act to the clerk. No instruction from the> sheriff was requisite.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed in so far as it dismisses the demand against the sheriff, in other respects be avoided and reversed; and' it is now ordered, adjudged and decreed that the mortgage securing-the notes held by the Ouachita National Bank and Meyer Bros, be- and i.s hereby decreed to be operative upon and restricted to the-one undivided half of John M. Lee of the. property acquired by himi and Jule W. Parks at the succession sale, and be erased and canceled so far as it affects the other half owned by said Parks that the-bank and Meyer Bros, furnish an account of the collaterals in their hands, to secure the debts due them by Lee & Parks, the collections-thereon and the consequent credits on the said debts; that Meyer Bros, furnish a statement of the result of their attachment suit-against said Lee & Parks and of the credit on their debt arising from, said attachment, and that on proof to be made by the parties, the-debts for which said two mortgage notes are held by the bank and said Meyer Bros, be fixed and the mortgage securing said two mortgage notes, and decreed operative only on one-half of the property, and be also restricted to the amount found to be due said bank and Meyer Bros., and for any residue of the notes held by plaintiffs and sued on herein left unsatisfied by the sale of the property acquired by said Lee & Parks at said succession sale, that plaintiffs have judgment, against Madden, said judgment to be given in the present suit or in-such other suit as plaintiffs may bring, and their right to institute suit against said Madden and his sureties is reversed, and it is further ordered that defendants pay costs.

On Application for Rehearing.

On this application for the rehearing our attention is directed to that part of our decree condemning defendants to pay costs.. The litigation is between the plaintiffs, and not the original defendants, but the defendants in the rule to erase mortgages. Our judgment is against the defendants in the rule, not against the original defendants. We will therefore make our judgment more specific as to costs.

It is therefore ordered, adjudged and decreed that our former judgment be so amended as to direct, and accordingly it is now ordered and decreed that the defendants in the rule to erase mortgages, the Ouachita National Bank and Meyer Bros., pay the costs on that rule incurred in the lower court and on this appeal; in all other respects our former decree to remain unchanged, and to stand as rendered.


text:
    No. 12,402.
    Mutual Loan and Building Association vs. First African Baptist Church.
    The failure to file a transcript within the time prescribes by law on an appeal regularly obtained andperfected, is equivalent to an abandonmentof the same and warrants the dismissal of another and similar appeal subsequently obtained. 42 An. 475.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Henry P. Dart and Benj. W. Kernon for Plaintiff, Appellee.

      Albert Voorhies and H. J. Rhodes for Paul Chapman, Third Opponent and Appellant.
    Submitted on briefs February 1, 1897.
    Opinion handed down February 15, 1897.
   The opinion of the court was delivered by

McEnery, J.

This case was dismissed when before us at the last session. The transcript was not brought up on the return day, but before the expiration of the three days grace allowed by law an extension of time was granted within which to file the transcript. It was not filed within the time allowed by the extension. The appeal was, therefore, abandoned. Building and Loan Association vs. Church, 49 An. 1458. The failure to file the transcript within the time prescribed by law is deemed an abandonment of the appeal, and a prohibition for a second appeal. The failure to file the transcript is the act of the appellant, and is equivalent to an abandonment of the same, and warrants the dismissal of another similar appeal subsequently obtained. Succession of Llula, 42 An. 475; Bienvenu vs. Factors and Traders Bank, 38 An. 210; Lausade vs. Maury, 31 An. 858; Ducournau vs. Levistones, 4 An. 30; Collins vs. Monticou, 9 An. 89; C. P. 594.

The appellant contends that having filed the transcript in the first appeal, the dismissal of the appeal does not deprive him of the right to a second appeal. But his transcript was filed too late — after the return day, and it was as though no appeal had been taken, and that it had been abandoned. Articles 587 et seq., C. P.

The cases cited by appellant in support of his contention are all based on the ease of Smith et al. vs. Vanhille, 11 La. 380. In that case it was held when the appellant had neglected to give a sufficient bond, or omitted any formality required by law, the appellee has the right to demand the dismissal of the appeal, but within the year the appellant can take a second appeal.

There is a marked difference between the failure to file the transcript in the time prescribed by law, and the irregularities noticed in the case referred to, and in the cases reported in 15 An. 116 (Dugas vs. Truxillo) ; 29 An. 702 (Succession of White).

The appellant having abandoned the appeal by not filing the transcript in time, and the fault being imputed to him, the appeal is dismissed.


text:
    No. 12,422.
    State of Louisiana ex rel. W. Morgan Gurley, Syndic, vs. Hon. Fred. D. King, Judge of the Civil District Court for the Parish of Orleans.
    QN Application for Writs of Mandamus and Prohibition.
    It is alleged that the law, which is the foundation of the proceedings complained of, is unconstitutional on the ground that it was not read in full in the Senate; and this ground is stated for preliminary writ of mandamus; hut the original enrolled hill showing a contrary state of facts will not be made peremptory.

      Ambrose Smith and John T. Whitaker for Relator.

      Dinkelspiel & Hart for Respondents.
    Submitted on briefs February 15, 1897.
    Opinion handed down February 19, 1897.
   The opinion of the court was delivered by

Watkins, J.

The relator’s claim, is, that he presented to the respondent a petition praying for the issuance of a writ of injunction in order to restrain a sale of certain mortgaged property under executory proceedings, for the reason, amongst others stated therein, that it was his “ clear, ministerial and mandatory duty ” to grant said writ and stay further sale proceedings; but that he refused to do so, and his refusal was a denial of justice and a deprivation of the relator’s only adequate and effective remedy.

The judge returns (hat in the matter of J. N. Augustin vs. Ernest V. Reiss, No. 51,690 on the docket of his court — it being an executory proceeding in the foreclosure of a special mortgage — the relator was made a party defendant, under and in conformity with the provisions of Act No. 15 of 1894, and with whom the said proceedings were, thereafter, carried on contradictorily.

That during the pendency of these proceedings, there was presented by the relator a petition praying for an injunction to restrain the further execution of the order of seizure and sale, on the ground that said Act No. 15 of 1894 was not a valid law, but, on the contrary, an unconstitutional statute, and therefore null and void, because some of the formalities prescribed by the Constitution in its enactment had not been observed by the General Assembly; that is to say, that the bill, while it was a measure pending in the General Assembly, was not read onee in full in the Senate.

The respondent further avers, that after a careful examination of the original bill which subsequently became Act No. 15 of 1894, as well as the original minute books of the House of Representatives and of the Senate — which were produced in the respondent’s court, and are annexed to the record before us — he found the relator’s complaint unfounded, as the bill appeared to have been regularly passed through “all the modes and tenses,” required by the Constitution, and refused the injunction.

The respondent has annexed the petition of the relator for injunction and made same a part of his return.

The application of relator for relief by mandamus and prohibition is grounded upon the alleged unconstitutionality of the aforesaid law, and his contention is that the conclusion of the respondent was erroneous.

We are inclined to think that the relator has presented a proper case for the allowance of the preliminary writs and the restraining order, notwithstanding the ground assigned for relief by injunction is not exactly covered by the provisions of C. P. 739, nor of those of 298.

For if indeed there is no constitutional and valid law sanctioning executory proceedings against the syndic of an insolvent most serious consequences might result if they could not be arrested by injunction, as a third opposition without a writ of injunction might not prove an adequate and efficacious remedy for the creditors. A somewhat different ease is here exhibited than'that of an individual seeking relief from his own contractual liability.

But it does not appear from the respondent’s return that the relator demanded a writ of injunction without bond under C. P. 735 and 740, and the relator’s petition for injunction accompanying the return of the respondent’s petition conditions his right to an injunction upon his giving bond.

In State ex rel. Gaynor vs. Judge, 38 An. 923, this court made a mandamus peremptory, compelling a District Judge to grant an injunction restraining a tax collector from collecting a tax under a law which was alleged to be unconstitutional and void.

Consequently we think mandamus a proper remedy under the circumstances.

But as all the facts are in the record and before us, so that the .alleged unconstitutionality vel non of the law which is drawn in •question here and which were before the respondent when he refused the injunction, we think it our duty to consider them in connection with the pleadings as a part of relator’s ease and decide that •question in determining his right to relief.

Ordinarily, when the question of the constitutionality of the particular statute is determinable as a factor in the matter in litigation, such as the want of power in the General Assembly to pass the law,> its determination would be, of necessity, relegated to a trial of the case on its merits, but the sole question in this case being that the bill was not read once in full in the Senate, a mere reference to the enrolled bill must settle the dispute.

The original enrolled bill discloses that it was introduced in the-House of Representatives by Mr. Wynne Rogers, and filed on the 23d of May, 1894, bearing the number 148.

That on the day of its filing it was read by title. That it was read by title and referred to committee on judiciary on May 23, 1894.-That it was reported with amendments on May 29, 1894.

That it was read a second time by title, amended and ordered engrossed and passed to third reading on June 1, 1894. That it was read a third time in full and roll called on final passage, and there being yeas 69 and nays 0, it was finally adopted and sent to the Senate on June 6, 1894. That it was received in the Senate on June 7, 1894. That it was read by title on June 8, 1894. That it was again read by title and referred to the judiciary committee on June 8, 1894. That it was reported favorably on June 12, 1894. That it was read by title and passed its third reading on June 13,1894. That it was read in full and finally passed, yeas 28, nays 0, and title adopted and returned to the House on June 14, 1894.

The endorsements of the entries on the bill showing the proceedings in the House of Representatives are certified to by Peter J, Trezevant, clerk, and those in the Senate were signed by W. H. Mc-Clendon, secretary of the Senate.

The further endorsement on the bill shows that it was returned to the House of Representatives as having been concurred in by the Senate on June 15, 1894.

On this showing the charge of unconstitutionality of the law is not well grounded, and the refusal of the respondent to grant the relator’s injunction was right and proper.

It is therefore ordered and decreed that the relief prayed for by the relator be denied, at his cost, and that our preliminary writ be set aside.


text:
    No. 12,425.
    State of Louisiana ex rel. W. Morgan Gurley, Syndic, vs. Hon. N. H. Rightor, Judge of the Civil District Court for the Parish of Orleans.
    QN APPLICATION for Writs of Mandamus and Prohibition.

      Ambrose Smith and John T. Whitaker for Relator.

      E. Howard McCaleb and Dinkelspiel & Hart for Respondents.
    Submitted on briefs February 15, 1897.
    Opinion handed down February 19, 1897.
   The opinion of the court was delivered by

Watkins, J.

For the reasons assigned in the written opinion this day filed in State ex rel. W. Morgan Gurley, Syndic, vs. Fred. D. King, Judge, ante, p. 881, it is ordered and decreed that the preliminary writs of mandamus and prohibition be set aside, and that the relief prayed for by the relator be refused at his cost.


text:
    No. 12,426.
    State of Louisiana ex rel. W. Morgan Gurley, Syndic, vs. Hon. T. C. W. Ellis, Judge of the Civil District Court for the Parish of Orleans.
    ON APPLICATION for Writs of Mandamus and Prohibition.

      Ambrose Smith and John T. Whitaker for Relator.

      E. Howard McCaleb and Dinkelspiel & Hart for Respondents.
    Submitted on briefs February 15, 1897.
    Opinion handed down February 19, 1897.
   The opinion of the court was delivered by

Watkins, J.

For the reasons assigned in the written opinion this-day filed in State ex rel. W. Morgan Gurley, Syndic, vs. Fred. D. King, Judge, ante, p. 881, it is ordered and decreed that the preliminary writs of mandamus and prohibition be set aside and that the rule prayed for by the testator be refused at his cost.


author: Breaux, J. Watkins, J.

text:
    No. 12,215.
    H. Kern & Son vs. Their Creditors.
    The vendees, while consummating the sale and affecting payment of the price* stipulated, as a condition, that they should be held harmless in ease an attachment was sustained.
    The agreement between the vendors and vendees covered all expenses incurred by the vendees in protecting their purchase, including attorney’s fees.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. W. Howe and W. S. Benedict for A. Shwartz & Sons, Plaintiffs-in Rule, Appellees.

      Lazarus, Moore & Luce, Bernard Titche, Dinkelspiel & Hart and Percy Roberts, for Syndic and Creditors, for Defendants in rule, Appellants.
    Argued and'submitted December 14, 1896.
    Opinion handed down February 1, 1897.
    Rehearing refused May 10, 1897.
   The opinion of the court was delivered by

Breaux, J.

In this proceeding Shwartz & Sons sought to subject a fund (realized from a sale to them by Kern & Son) to the payment of counsel fees and all charges incurred by them as intervenors, to protect their purchase.

The salient facts are that a respite was granted to Kern & Son in 1897.

Instead of paying the first instalment to their creditors, when it became due, under the conditions of the respite, they made a surrender of their property.

Immediately before their surrender they sold their property, consisting of goods and merchandise, to A. Shwartz & Sons, for forty thousand dollars.

A short time after the agreement of sale had been made, Olaflin & Co. secured a writ of attachment and levied upon the goods claimed to have been bought by Shwartz & Sons and sued out garnishment process upon these purchasers. These proceedings were instituted before the United States' Circuit Court.

Shwartz & Sons, to protect their purchase, intervened. The controversy on all sides was quite energetic; many witnesses were examined and many law points argued, as made evident by the portly volume before us.

Finally, the Federal courts found, as a matter of fact and conclusion of law, that the attachment was dissolved by the insolvency and cession under the insolvent law of Louisiana.

In other words, it was found that in this State attachment gives rise to no lien prior to final judgment, and that after cession and acceptance all of the property of the insolvent debtor is vested in the creditors, and all suits brought anterior to the failure must be transferred to the court in which the insolvent debtor shall have presented his schedule, and shall be continued against his syndic.

The Federal court complied with the requirement of Sec. 975 of the United States Revised Statutes.

After the attachment had been dismissed before that court, and the State courts having cognizance of the case in insolvency, had become vested with jurisdiction, Shwartz & Sons secured a rule on the syndic to show cause why forty-one hundred and eighty dollars and twenty cents should not be paid to them.

They suggest, as grounds for their rule, that there appears on the schedule of the insolvents, Kern & Sons, the following entry, viz.: “ The sum of eighteen thousand five hundred dollars is now in custody of certain custodians selected by my former attorney, Felix J. Dreyfous, and W. S. Benedict, the attorney of A. Shwartz & Sons, and which said sum of eighteen thousand five hundred dollars is held by them as trustees under an agreement made between petitioner and the said A. Shwartz & Sons, to await the result of a certain seizure and garnishment proceeding in the suit of H. B. Olaflin Company, agent, in the United States Circuit Court and entitled the H. B. Claflin Company vs. H. Kern & Sons, being No. 1269 of the docket of said court.”

They also allege in their rule that the sum was held in trust by W. S. Benedict to protect them in their purchase.

That the amount of forty-five hundred dollars held by him as a reserve fund was held to abide the decree of the court. That they were obliged to expend and that they became liable for the sum of forty-one hundred and eighty dollars and twenty cents, to hold themselves harmless in their purchase of the stock of goods from Kern & Son as against the H. B. Claflin Company, attaching creditors.

“That the expenses consisted in attorney’s fees paid to Howe & Prentiss, fifteen hundred dollars, and to Rouse & Grant, six hundred dollars, and due W. S. Benedict, one thousand dollars, and of actual costs of court paid in defending the purchase, the sum of one thousand and eighty dollars and twenty cents, viz.: to the clerk, marshal and stenographer, and printing briefs.
“ That it was so agreed and understood verbally between H. Kern & Son and your movers that said purchase of said stock of goods being valid and advantageous to said H. Kern & Son, said Kern & Son would place sufficient funds in trust to protect your movers and hold them harmless against all losses or expenses by the litigation prising from the attachment and garnishment of the said H. B. Claflin.,”

The syndic pleads the general denial, and specially avers that the amount was withheld for the exclusive benefit and advantage of Shwartz & Sons, and solely in order to protect them against what they thought might result in a double liability, and that all of the court costs, attorney’s fees and other charges were incurred by Shwartz & Sons for their sole and exclusive benefit, and in no wise enured to the benefit of Kern & Son or to their creditors.

The judgment of the District Court made the rule absolute.

One of the creditors of Kern & Son, and the syndic of the insolvency, prosecutes this appeal.

There is no dispute in regard to the value of the services. The record shows that the attorney for the appellant admitted, as follows: “ No question is raised as against the amount of the charges, which are considered reasonable.”

In delivering the amount remaining of the purchase price the vendees stipulated that the syndic “ shall hold the sum of forty-five hundred dollars, or allow the sum to remain in deposit in the judicial depository of the Civil District Court.”

The syndic on his part, in consideration of the stipulations and by authority of the court, placed the amount in deposit in the judicial depository.

In support of the equity of their claim plaintiffs urged that but for their action the fund would have been taken by the Claflin Company, and that the syndic and creditors would not have received anything.

They moreover asserted, with reference to the particulars of their action, that they carried on an expensive litigation in the United States courts, in which the testimony of a large number of witnesses was taken in support of their motion to dissolve the attachment and defend their purchase; that the judgment of the United States Circuit Court was not satisfactory. They took a writ of error, and spe - cially assigned as error the question of the attachment; that the burden of setting aside the attachment rested upon Shwartz & Sons; that they incurred and paid stenographers, counsel fees and other expenses, and thus saved the fund for the. creditors of Kern & Son, which was -held as security — first, to protect them against their expenses; and, in the second place, to go to the syndic for the creditors. The defendants in rule in their defence upon this question, controverting the argument of, plaintiff, urge that no act of Shwartz & Sons prevented Claflin from realizing upon his judgment; that it was Kern’s act; that it was his voluntary insolvency and the procurement by him upon his schedules, under oath, of the stay order of the District Court of the State, which the Federal Court held operated a dissolution of the Claflin writ.

That Shwartz & Co. could have relieved themselves of all responsibility in the litigation by depositing in the registry of the court the funds in their possession, or under their control; that in consequence there was no basis for the claim of Shwartz & Sons; that they continued with the litigation, in so far as-they were concerned, to protect themselves from double liability and for the benefit of the creditors, and that it follows they should not recover their expenses.

With reference to the proposition that the services of the attorneys of Shwartz & Co., and the payment of costs enured to the benefit of the creditors of Kern & Son, we must say that, in our view, it is not a firm basis for an action. We are not Jed to infer from the facts of the case that the purpose of Shwartz & Sons, as intervenors in the case before the United States Circuit Court, was to save the funds for the creditors. However valuable the services of counsel may have been to the syndic, they were not employed by him; it follows, then, that those by whom they were employed can not recover fees paid from parties who did not employ them.

The question remaining for decision relates to the special deposit and special agreement, established, it is alleged, by the testimony of witnesses, and so found by the lower court.

The issue now before us presents chiefly questions of fact.

The declaration of Kern & Son contained in their schedule, veri.fied by their oath, is positive and direct. In the presence of such a statement filed of record, Kern & Son either as parties to an action, or as witnesses, can not, with the possibility of its having any weight, deny that F. J. Dreyfous was their former attorney, and that he and W. S. Benedict were the trustees under an agreement between them and A. Shwartz & Co.

Mr. Benedict, a reputable member of the bar, whose integrity is not questioned, testified:

“ Relative to the fund it was agreed between Mr. Dreyfous and myself that in order to protect A. Shwartz & Sons against any lawsuit, and to hold them harmless, and to indemnify them for any expenses they might have to undergo, that H. Kern Á Son should protect the fund to that end, that it would be preserved for the benefit of the general mass of creditors of H. Kern & Son and that they would make a surrender in insolvency.” Continuing as a witness, he said:
“I received on 2d May, 1892, this amount of twenty-seven thousand four hundred and fifteen dollars and fifty-six cents, to be held by me under trust that had been originally made as stated to protect A. Shwartz & Sons from danger of double liability in the premises, as expressed in the writing.” Again, as a witness: “ The primary object of the agreement was to hold this fund in trust to indemnify A. Shwartz & Sons from any risk by rsason of any litigation on the part of Claflin & Co.” We interpret the word trust as used, in the sense of agent deemed a trustee for this purpose mentioned.

It is evident in our judgment that there was an agreement entered into between Kern and Shwartz at the time, in regard to this fund, with the view of protecting the purchasers, Shwartz &Sons. Whether it includes the claim of plaintiff in rule is the question for our determination.

At this point, relative to the scope of the agreement asserted by the plaintiff in rule, the defendants insist that the declaration in the schedule of Kern & Son, which we have copied, was without foundation in fact, and that the testimony of Mr. Benedict was a mistake.

This petition, as we read the record, is not sustained by the weight of the testimony.

In the first place the attorney of Kern & Son, at the date of their sale to Shwartz & Sons, testified that he felt that the purchasers should be protected (from double liability possible, if Claflin &,Co. succeeded in their suit), and that he effected an agreement to protect them; that he submitted the result of his action to his clients. They made no objection. The agreement was, he stated ¿s a witness, that the sum of money should remain as a trust to secure A. Schwartz & Sons against the effect of the attachment, which . was threatened by H. B. Olafln & Co.; to hold them harmless; to protect and indemnify them, as they were purchasers in good faith, and had paid their money. Nathan Shwartz, of the firm of Shwartz & Sons, testified that prior to the attachment Kern, of Kern & Son, promised them protection as purchasers and approved the action of his attorney, Dreyfous.

It is a fact that Kern, as a witness, flatly denied all to which these witnesses had testified. Confronted as he was by his own sworn declaration in his schedule, it could not be held that his testimony alone was of more weight than the testimony of at least three witnesses.

We have made a summary of the testimony bearing upon this point, as follows, viz.:

Nathan S. Shwartz testified that Kern assured him that his firm, as purchasers, should be protected in every shape and form.” He (Kern) raised no objection to placing money in trust, provided it met with the approval of his attorney, Dreyfous.

This is followed, as evidence, by the schedule of the insolvent, and lastly, in the action brought by the syndic against A. Shwartz & Sons for an accounting; it culminated in an agreement between the parties under which eighteen thousand seven hundred and ninety-four dollars and forty-six cents was turned over to the syndic; the sum of forty-five hundred dollars thereof to be placed in the judicial depository of the court to abide the decree on the issue to he presented by A. Shwartz & Sons for the costs and charges sustained, and for which they were liable in the proceedings of the Claflin Company in the United States Court.

The attorney for Kern & Son testified that with one who was authorized to represent Shwartz & Sons he agreed to withdraw the checks of the purchaser for the price and place it (the price) in the hands of some responsible person to be held as security against any law case to which Shwartz & Sons 'might have to answer.

H. Newgass testified that “under an agreement all around he handed the amount realized on the check to Isidore Newman. He informed the litter that it had been left with him as the trustee of Shwartz and Kern. After a special request Newman consented to receive the amount in trust. He was informed at the time that he would be called upon for it by Benedict, who had been selected as trustee. In the meantime (Newman testified that) he held it as a favor to Shwartz and to Kern, and that each must have known during the time that he held it; that he had the amount in his possession.

It is true, as alleged by appellants, the fund was not always in the possession of the trustees. For some reason it, at times, was in other hands. There was a statement filed by one of the trustees, Benedict, in the United States Circuit Court, in which it was not clearly set forth, it is contended, that the fund was to be charged with the amount now claimed, as will be seen by the following copied from the statement, viz.: “ to protect A. Shwartz & Sons from the danger of double liability in the premises.” This statement, however, explained by the testimony, included the expenses incurred as being in the nature of a double liability, from which they, (Shwartz & Son) sought to protect themselves. They had bought the property at its value; any liability arising in addition to the price was to that extent an additional amount.

The facts are indisputable that immediately after Shwartz & Sons had become the owners of the goods by purchase, for ample consideration, suit was brought by a creditor of his vendor (Kern) in which a large amount was claimed, an attachment was levied and the goods attached, and garnishment process issued for the price. It is shown that they were concerned, and called upon their attorney and said that they were anxious to annul the sale. Having been assured by him that they could be protected by the vendor from any loss, or any further liability of any kind, by placing the amount in deposit, an agreement was made to that end. It was complied with by all the parties. We think the fund paid by them was properly charged with the expense covered by the agreement.

We are next brought to the question (strongly argued by the counsel for appellant) of improper payment of a portion of the fund, owing, it is charged, to the control retained over it by Shwartz & Sons.

We have not found in our examination of the facts that Shwartz & Sons are responsible for the payment freely made, from this fund, while it was held in trust. The payments from the fund to several of the creditors of Kern & Son were made with their (Kern & Son), consent and upon their order. If any. wrong was committed in paying from this fund, it was committed by Kern & Son.

Shwartz & Sons were in no way concerned in these payments. They had nothing to do with them. These payments should not operate to the prejudice of their right to recover under the agreement, even if there was some delay in paying the price or in providing for the payment of their check representing the price, owing to the fact that they were exposed to a double liability, in view of the pending attachment from which they desired to protect themselves.

An attentive consideration of the testimony has brought us to the conclusion that the fund was deposited as alleged for indemnity against possible loss.

The obligation was to save plaintiffs in rule harmless; this, we think, included fees and costs.

In Berry vs. Slocomb, 2 An. 993, the obligation by defendant was to save the plaintiff harmless, as in the case here; the court held that the defendant owed the plaintiff the fee paid by him to counsel by whom the case was defended.

We do not think, in view of the admission made of record, that we should pass upon the amount allowed for fees. There was no controversy as to the amount; the whole question was confined to the right vel non of Shwartz & Sons to recover the sum paid by them.

The judgment is affirmed.

Miller, J., dissents.

On Application for, a Rehearing.

Watkins, J.

The object of this suit is to subject an asset in the hands of the syndic of the insolvents to reimbursement of certain attorneys’ fees and other expenses which A. Shwartz & Sons incurred in a litigation with one of their creditors.

H. Kern & Son made sale of a stock of goods in globo to A. Shwartz & Sons for the cash price of forty-seven thousand dollars, and contemporaneously therewith H. B. Claflin & Co. sued out an attachment against H. Kern & Son for a large sum, in the United States Circuit Court, seized the stock of goods and issued garnishment process against A. Shwartz & Sons.

On account of these proceedings, A. Shwartz & Sons stopped the payment of the check which they had given to H. Kern & Son for the price of the goods, and at the same time they filed an intervention in the attachment suit claiming the ownership of the property.

"During the pendency of the foregoing proceedings H. Kern & Son made a cession of their property under the insolvency laws of Louisiana, and included the proceeds of goods sold as one of their assets, and, as the result of the cession, the Federal tribunal held that the attachment was dissolved, thus freeing the fund from the garnishment and leaving the property in the possession of A. Shwartz & Sons.

The sale was thus consummated, and the price passed into the control of the syndic for the benefit of the creditors, and A. Shwartz & Sous proceeded by rule against the syndic for the fees and expenses which they had incurred in -that litigation, resting their claims, mainly, upon a recital in the schedule of the insolvents, to the effect that said fund was in the possession and under the control of a certain trustee who had been selected by representatives of Kern & Son and Shwartz & Sons to await the result of the litigatioa, iu pursuance of an agreement previously entered into between them for the purpose of protecting the sale.

In other words, that W. S. Benedict held the said fund as trustee for the purpose of protecting A. Shwartz & Sons in the expenses and expenditures they had incurred in their efforts to protect the stock of goods they had bought of H. Kern & Son, from the attachment of H. B. Olaflin & Co.; and that this agreement was a supplement to and an incident of the sale.

This claim is resisted by the syndic and one of the creditors of H. Kern & Son, who are appellants.

In support of their contention, A. Shwartz & Sons claim that they conducted an expansive litigation with H. B. Olaflin & Co., and prosecuted a writ of error from an adverse judgment of the Circuit Court to the United States Court of Appeals, and therein procured the dissolution of the writ of attachment at great cost and expense.

On the other hand, the contention of the syndic is, that it was the cession of H. Kern & Son which struck down the attachment, and released the fund; and that A. Shwartz & Sons could, at any time, have exonerated themselves from all liability by surrendering the fund, or causing it to be deposited in the judicial depository of the court.

Our opinion holds that the services of the attorneys of A. Shwartz & Sons and the expenses they incurred having inured to the benefit of H. Kern & Son is not a good basis for an action.

But the action taken by A. Shwartz & Sons evidently prevented H. B. Olaflin & Co. getting the fund in possession and depriving the syndic of it. The attachment was sustained in the Circuit Court; and nothing but the timely writ of error which was taken by A. Shwartz & Sons prevented its becoming a finality.

The agreement is stated to have been that the trustee was selected for the purpose of keeping the fund “ in order to protect A. Shwartz & Sons against any lawsuit and to hold them harmless, and to indemnify them for any expenses they might have to undergo ” * * * to the end, that the fund should be preserved for the benefit of the “ general mass of the creditors of H. Kern & Son.”

Our opinion, finding this proposition supported by the evidence, affirmed the judgment.

The application for a rehearing rests upon the following grounds, to-wit:

1. That the expenses incurred by A. Shwartz & Sons were the result of an understanding between them and Kern & Son, “to divert the proceeds ” from the creditors of H. Kern & Son.
2. That the court erred in holding that the syndic and the creditors of H. Kern & Son were concluded and estopped by the schedule.
8. That if the statement made by W. S. Benedict, with regard to the agreement, is to be accepted, same must be taken in its entirety, and a part of it is that H. Kern & Son were to go into insolvency; and had that part of the agreement been carried out, the attachment would have been immediately dissolved.
4. That the court erred in holding that there was any trust or agreement whatever, for the purpose of reimbursing the expenses or the attorneys’ fees of A. Shwartz & Sons.
5. That A. Shwartz & Sons could have, at any time, relieved themselves from liability by making a surrender of the fund.

There are several additional grounds of objection stated, but they are substantially embraced in the foregoing.

None of the grounds urged are at all serious. In our view a sufficient foundation for the agreement is the protection of the fund for the benefit of the syndic and the creditors of H. Kern & Son.

The cession of H. Kern & Son was made, but it was unavailing in so far as the insolvents were concerned. The attachment was levied immediately after the terms of the sale had been agreed upon, and before the check of A. Shwartz & Sons was presented at bank for payment. It was, of course, prior to the agreement. Consequently that part of the agreement, subsequently made in reference to the cession of H. Kern & Son, was of no possible efficacy; and the subsequent cession as made did not procure the release of the property. Hence the necessity .of intervention and writ of error obtained by A. Shwartz & Sons, through which alone the release of the attachment was obtained.

The point made, as well as the agreement of counsel for the syndic and the creditor goes upon the theory that the cession of H. Kern & Son would of itself have solved the whole difficulty.

Counsel says that if Kern had surrendered immediately, there would have been no need of an agreement. And they ask: “In such case, how could it have ever been contemplated that there would be any litigation in the Federal court? ”

This argument misplaces the situation altogether. The litigation began before the sale was consummated and Kern’s cession, subsequently made, was unavailing without the aid of Shwartz & Sons. Without the agreement and Shwartz & Sons’assistance neither the syndic or the creditors would have realized anything out of the fund.

Rehearing refused.

Miller, J., adheres to his dissent, and Blanchard, J.;, takes no part in this opinion, not having been a member of the court at the original hearing of the cause.