author: Idsley, J.

text:
    John Kaiser v. The City of New Orleans.
    The lessor has not the right to make any alteration in the thing let, during the continuance of the lease. In case of a breach oí contract, by negligence or fraud of a party, no other sum can be allowed as damages than that which fully indemnifies the creditor.
    The whole tendency of modern practice is to enlarge the admissibility of evidence, leaving the court to restrict its applicability.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      0. Roselius and W. B. Koontz for plaintiff. J. J. Michel for defendant and appellant.
   Idsley, J.

This action was brougnt in the Fifth District Court of New Orleans, to recover damages from the city for an alleged violation of a contract, entered into between the city and the plaintiff, by which the city transferred to him the right to collect the revenues of the city, accruing under its ordinance, from the meat market, situated in the Second District of the city, for one year, beginning on the 1st January and ending on the 31st December, 1859.

The city pleaded the general issue.

The obligations, rights and disabilities of the contracting parties are determined by Articles 2262, 2268 and 2670 of the Civil Code.

The plaintiff invokes the principle enunciated in Art. 2668, to this effect: The lessor has no right lo matee any alteration in the thing, during the continuance of the lease, whilst the defendant reposes on Arts. 2262 and 2670.

Upon the proper application of these articles to the facts involved in this case, depends the result at which we must arrive.'

It is conceded by the defendant that changes and alterations in the construction of the stalls, tables, etc., were made by it, during the lease; but the city attempts to justify these changes, by referring to a state of things which had originally existed in the internal arrangement of the market. Its main defence is, that, when the plaintiff entered into the possession of the premises, the market was in a condition requiring various repairs; and it refers to its contract with Pelanne Brothers, who were charged with the execution of the work, to show that every care was taken by it to incommode the lessee as little as x>ossible.

Assuming that aE this is true, does it foHow that the city has any legal right to make any alterations or changes in the thing leased ?

Marcadé, commenting with that abihty which distinguishes aE his productions, solves this question. He says, commenting on Art. 1723 of the Napoleon Code, which corresponds with Art. 2668 of our Code :

“ Le baiEeur ne peut, a. moins que le preneur n’y consente, apportar aucun changement pendant la clurée du bail a la forme de la chose louée, et on ne pourrait plus sous le Code dire eomme Pothier (No. 75) qu’ü y aurait exception a ce principe, s’il s’agissait d’un changement peu con-sidérable, tres-intéressant pour le propriétaire et dont celui-ci offdrait d’indemniser le locataire. -Le locataire peut toujonrs exiger que la chose soit maintenue dans l’état oñ E l’a louée; car il se peut que ce soit précisé-mení a cause de cet etat qu’il l’ait louée.”

It would seem that this tribunal has seldom, if ever, had occasion to make application of Article 2668 of our Code; and, as a case very similar, in its features, to this one, has been adjudged by the Court of Cassation, involving the identical textual principle of law as it does, we adopt it, as conveying in clear terms, its applicability to the facts in that, and in the present case, presented. The case alluded to was submitted originally to the Cour Boyal de Paris, by Laperriére 0. Bertauld, and is thus reported in the Journal du Palais, 1844, vol. 1, p. 134:

“En 1833, les sieurs Laperriére et Jarry devinrent locataires des vastes salles qui composent l’estaminet hollandais, au Palais Boyal, a Paris, pour dix-sept ans, moyennant 9000 fr. par an.

En 1841, le sieur Bertauld, propriétaire de la maison, declara aux sieurs Laperriére et Jarry, qu’il était dans la nécessité, pour le locataire d’une boutique au rez-de-chaussée, de donner á la cage de l’esealier la forme circulaire, au lieu de la forme carrée, et qu’il se croyait d’autant plus fon-dé a faire ce changement que dans le bail de 1831, les preneurs s’étaient obligés á supporter les reparations nécessaires.”'

Sieur Bertauld sustained his demand before the Cour Boyale, but on appeal to the Court of Cassation the judgment was reversed, as appears by the final decree which is here copied in extenso.

Considérant qu’aux termes des articles 1719 et 1723 C. Civ., le bailleur doit faire jouir paisiblement le preneur pendant la durée du bail, et qu’il ne peut changer la forme de la chose louée;

Considérant qu’il ne s’agit pas de reparations urgentes et nécessaires, á faire a l’immeuble loué á Lapellier, mais de travaux de constructions et de changements que le locataire n’est pas tenu de souffrir;

Considérant qu’il résulte du rapport d’expert dressé en vertu de l’or-donnanco du référé, que les travaux projetés par Bertauld sont con-traires aux droits des jouissances des locataires; que 1’escalier dont il s’agit est une accessoire importante des lieux loués, surtout á raison de la profession exercée par Laperriére; que ces travaux qui^ auraient pour résultat de réduire de 75 centimetres la profondeur de l’escalier, seraient dans l’intérét du propriétaire seul, et causeraient au locataire un préiu-dice considerable;

Que par consequent e’est k tort que les premiers juges ont autorisé Ber-tauld a faire exéeuter les travaux.”

Another case, similar in its import, was finally decided in the same court in 1843. It was that of Caisse d’Epargne de Paris v. C. Boudou Des vesvres. See Journal du Palais for that year (1843), vol. 1, p. 343.

And in the Journal du Palais for 1856, vol. 2, p. 433, is reported another case, LefebvreC. Gautherin, defining the meaning of the words “la forme de la chose ”as not restricted to any change materially in the thing leased, “mais encore toutesmodifications essentielles qui sans détruire la substance de la chose, en changent les conditions et la rendent impropre a l’usage auquel elle était destinée,” wherein Gautherin, the lessee, recovered from his lessor heavy damages, for an unwarrantable interference by his lessor with his rights, and which damages were increased by the Court of Cassation, which held that “ Considérant que les dom-mages intéréts alloués a Gautherin ne sont pas proportionnés au préju-diee par lui éprouvé, et résultant soit des frais néeessités par son déméi.. nagement, soiti de ceux anxqnels a donné lieu r appropriation (Tun nouvel appai’tement, condamne Lefebvre es nom á payer á Gautberin la somme de 5,000 fr. en sus des 1,000 fr. á lui alloués par le jugement.”

In Gautherin’s case, the change was not a material one, altering the substance of the thing, but imposing on Mm in violation of his contract and the law, neighboring tenants, whose occupation was incompatible with the peace and tranquility he sought in renting the promises from Ms lessor.

Some stress is laid upon the circumstance that, whilst the alterations and changes were being made by the city, there was no formal expostulation or remonstrance on the part of the plaintiff, and that the formal protest made by him was not until the 3d May, 1859, when the work was completed.

It is not urged, as an estoppel in bar, that the plaintiff made no formal opposition, but the fact is adverted to, we presume, as an excuse for the interference by the city with plaintiff’s rights as lessee.

A ease, bearing on the same subject, Delahante C. de Tiliere, Journal du Palais, 1858, p. 36, is in point. It was therein held that Le silence gardé par le locataire quand usant ou abusant de son droit de propriété, le bailleur a apporté des changements a la chose louée, emporte de sa part renoneiation tacifce au droit qui lui appartient d’ejáger le maintien de cette chose dans son état primitif. £¡,on droit se réduit alora á récla-mer la résiliation de son bail ou des dommages intéréts. ” And this last is the remedy to which the plaintiffs have lawfully resorted.

In Arrowsmith v. Gordon et al., 3 An. 105; Porter v. Barrow, Ib. 140; Ryder v. Thayer, Ib. 150; and Gobet v. Municipality No. 1 and City of New Orleans, 11 An. 300, the mode of assessing damages in cases like this is determined. In Ryder v. Thayer, Judge Eustis, the organ of the court, held : In case of a breach of contract by negligence or fraud of a party, no other sum can be allowed as damages than that which fully indemnifies the creditor. Beyond this, says the court, juries have no more right to exact a larger sum than they have to increase the amount due on a promissory note.

The plaintiff finds no difficulty in arriving at a definite result in this case, and concludes that the loss sustained by him exceeds considerably the amount claimed by Mm, i. e. twelve thousand dollars.

The defendant, on his part, contends that there is no sufficient and proper evidence before the court, to show that the revenues of the market were actually diminished after the making of the repairs in question; and the task devolves on this court to determine the nature and the extent of the defendant’s liability, if any exists.

"We have bestowed considerable care in the examination of the testimony, oral and documentary, adduced on the trial of this cause, and we are impressed with the idea that there was no necessity, whatever to interfere with the arrangement of the stalls, wMch had always been kept in repair by, and adapted to the convenience and needful requirements of, the butchers who occupied them. This is well established by Wagner, Fulton, Altmeyer, Wilson, Lord, Senati, Barras and Oulisto, although the testimony of Filié is at variance with it.

Some of these witnesses (and many others would testify to the same fact) paid the plaintiff one-half (or more) less than they had previously paid him; and one witness, Lord, says that he considers the difference of value of a stall, before and after the work, one-half. The average loss on each of the 204 stalls we compute to he forty cents per day; which, for sixty days, whilst the work was in progress, would amount to two hundred and four dollars, and, in the aggregate, to four thousand eight hundred and ninety-six dollars. After that period, it would not, we think, be reasonable nor equitable to compel the city to pay anything, as it was in the power of the occupants of the stalls to enlarge them, as they did after-wards, without opposition.

We find in the record a bill of exceptions, taken by the defendant, to the receiving as a witness for the plaintiff of one Wagner, to prove that he had sold meat outside of the market, whereby plaintiff had lost his dues or fees.

When defendant objected, on the ground of irrelevancy, because such an act was a violation of the city ordinances, for which a fine is .imposed, and because the damage thereby was caused by the witness, and not by the defendant. The evidence was admissible, if the witness did not refuse to answer the question (see 9 La. 356); and it was immaterial to the defendant if he could not be answerable for the act of the witness. It was held, in Lockhart v. Harrall, 6 A. 538, that the whole tendency of modern practice is to enlarge the admissibility of evidence, leaving the court to restrict its applicability.

This court can only view the city as any other ordinary contracting party, and whilst due care will be taken to maintain its rights and prerogatives, so long as they are kept within legal bounds, it will not tolerate a disregard of the legal rights of others, who have paid for those rights a full equivalent.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by the said court, it is ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor' of the plaintiff, John Kaiser, and against the defendant, the city of New Orleans, for the sum of four thousand eight hundred any ninety-six dollars, with legal interest from judicial demand ; the costs of the court below to be paid by the appellant, and those of this court to be paid by the appellee.


source: Caselaw Access Project

author: Labattve, J.

license: Public Domain

text:
    Richard Barrett v. D. Donovan, et al.
    If tlie appellee demand fclie reversal of any part of the judgment, or damages against the appellant, he must file his answer at least three days before that fixed for the argument, otherwise it shall not be received.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      P. H. O’Peal for plaintiff. T. S. McCay for defendant and appellant.
   Labattve, J.

This suit is brought against Donovan as drawer, and P. Halpin as endorser of a note, dated 6th February, 1861, payable 1st May, 1861, for $450 with eight per cent, interest from maturity. A judgment by default was rendered, and made final below, against the defendants in solido, and they both appealed.

The death of the plaintiff having been suggested, on motion, it was ordered before this court that Patrick Irwin and Alexander Dapremont, testamentary executors of the late Richard Barrett, be made parties; they have appeared by counsel and prayed for the confirmation of the judgment, with ten per cent, damages. This case was called up the 22d, and fixed for argument for the 29th May, 1865. The plaintiffs and ap-pellees filed their answer, praying for damages, on the 27th May, 1865. It was too late. C. P. Art. 890; 14 La. 288, 391.

The defendants and appellants have made no appearance in this court.' The case was fixed for argument and submitted by the appellees, and it becomes the duties of this court to examine the record and render judgment for one, of the parties, as the nature of the proofs and the justice of the case require.. C. P. Art. 892.

After a careful examination of the record, we have been unable to find any notice of iirotest for the non-payment of the note sued upon and served upon the endorser, as prescribed by law. The judgment against P. Halpin is erroneous, and must be in his favor.

It is therefore adjudged and decreed, that the judgment, as regards the said P. Halpin, be reversed and rendered in his favor and against plaintiff, as in ease of non-suit, and that it be affirmed as to the said D. Donovan; the appellees to pay one-half of the cost of appeal, and the said D. Donovan, appellant, the other half.

Howehd, J., recused.


author: Ilsuey, J.

text:
    City of New Orleans, for use of Nicholson & Co., v. Louis L. Ferriere, et als.
    The city’s acceptance of the work, for which it was authorized to contract, is prima fade evidence of its completion and mode of execution against the front proprietor, who becomes thereby bound.
    In contracts to be performed at a future period, the obligation which grows out of the contract arises at the very moment of making it, but the right of action growing out of it arises only when the stipulated term has arrived.
    Execution of a judgment against a warrantor will be suspended until the warrantee shall have paid the amount thereof to the plaintiff.
    _OL PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      George S. Lacey and G. P. McPheelers for plaintiff. Miohel & Koontz for defendants and appellants.
   Ilsuey, J.

The plaintiffs claim from the defendants, in the Fifth District Court of New Orleans, eleven hundred and eighty-two dollars and fifty-six cents, with interest, being the amount of a bill for paving done by Nicholson & Co., under a contract with the said city.

Gernon and Westmore, two of the defendants, and the vendees of L. L. Ferriére, pleaded the general issue, and by supplemental answer called in warranty, Louis L. Ferriére, their co-defendant, in this suit.

Ferriére excepted to the plaintiffs’ petition, because it does not state any ownership to he in him of any definite piece of property, at the time the hill sired on was duo; and, this exception being overruled, he filed his answer, pleaded the general issue, and denied specially that he was the owner of the property in front of which the pavement was made, and also denied that the forms and requirements of law had been complied with to order and execute the contract of sale by the city authorities, and that he is not hound thereby.

There was judgment in the lower court against the present owners of the property, Gernon & Westmore, for the whole amount claimed, with legal interest, and judgment in their favor over against their vendor and war-ranto/, L. L. Ferriéré, for the sum of nine hundred and forty-four dollars and sixteen cpnts, -with interest from 8th March, 1860.

Ferriére only has appealed to this court from the judgment rendered against him.

At the time of the transfer of the property, in front of which the paving was done, a large portion of the work was completed; and the question here presented is, who is bound to pay that portion — L. L. Ferriére, the vendor, or Gernon & Westmore, his vendees ?

The exception to the petition filed by Ferriére is properly overruled; and, in the absence of fraud, which is not alledged, the city’s acceptance of the work, for which it was authorized to contract, is prima facie evidence of its completion and mode of execution against the front proprietor, who becomes thereby bound. Municipality No. 2 v. Guillotte, 14 An. 297.

It was incumbent on Ferriére, in the language of Domat Book 1, title 2, sections 2, 3, to put a stop to the pretensions of every one that claims either a right of property in the thing sold, or any other right which might disturb the buyer in. the possession and enjoyment of the thing he has bought. “For it is,” he says, “the right to possess and enjoy, that he has bought.” And this suggests the question whether, at the time of the sale from Ferriére to Gernon & Westmore, the property was legally affected with or subject thereafter to be affected with any privilege for paving in front of it, which was then in progress of execution; if so, the duty devolved on Ferriére to protect his vendees against the claim of the city, at least for that portion of the wort which had been actually performed whilst he was the owner of it.

The work was not fully completed, and the account therefor was not definitely stated and recorded until a few days after Gernon & Westmore acquired the property, but we think the registry so legally made bound the property, in whose hands soever it may have been.

Of the whole amount due to the city, upwards of four-fifths of it was due and owing personally by Ferriere as owner of the property.

The work inured to his benefit. Gujus oomniodum ejtts debet esse in-commodum.

No action, it is true, then, lay against Ferriére for the recovery of the value of the work then partially executed; but he was, not the less for that, personally bound for it, as owner, with a lien against the property whenever the registry of the account for the whole work could be duly made. See 119 section oí Art. 20, March, 1856, page 164. The obligation existed; the remedy only remained in abeyance. Art. 14 O. P. Duranton, Cours de Droit Frangais, Vente, g 258, says: “Blais quoique le droit du tiers qui a amené réviction ne füt point encore complet ou parfait au moment de la vente, la garantie n’en a pas moins lieu de droit s’il y a eu eviction ; il sufíit que le principe, ou la causo premiere de ce droit, existait lors de la vente.”

“Ilsuflit que le droit füt antérieur á la vento dans son principe, ou sa cause.”

On every principal of law and equity, Ferriere is as responsible this prior debt of his, for which the property became affected, as he would have been for any other unsatisfied liability incurred by him for and operating a charge against the property. Of this opinion was ^the court a quo, which gave judgment against Ferriére and in favor of Gernon k Westmore, for so much of the claim of the city which it condemned them to pay, as was due by their vendor and warrantor, Ferriére.

This judgment must be affirmed, modified, however, in one respect, to suspend execution against Ferriere until so much of the judgment against Gernon & Westmore, as he is bound for, is paid by them. See Melancon’s Heirs v. Duhanel et als, 7 La. 290; Fletcher’s Heirs v. Cavallier et al, 10 La. 120.

It is therefore ordered, adjudged and decreed,, that the judgment of the lower court be so amended that no execution shall issue against Ferriere therein, until Gernon & Westmore exhibit in the Fifth District Court of New Orleans satisfaction of so much of the judgment against them as is due by Ferriére; and that, so amended, the judgment of the lower court be affirmed, the costs of appeal to be paid by the appellant.


author: Howede, J.

text:
    City of New Orleans, for use of Nicholson & Co., v. Patrick Halpin.
    Ill the absence of proof to the contrary it will be presumed that the city authorities have complied with all the formalities of the law in making a contract; omnia prmsumuntur solemnitur esaa acta.

    In the absence of proof of fraud, the acceptanco by the corporation of work which it was authorized to contract for is prima fade against the defendant, so far as it relates to its completion and the manner in which it was done.
    ll PPEAL from the Fourth District Court of New Orleans, Price, J.

      G. P. McPheeters for plaintiff. F. Haynes for defendant and appellant. P. G. Cuvellier and F. Fuselier for warrantor.
   Howede, J.

The defendant has ax>pealed from a judgment condemning him to pay the cost of paving the street in front of his property.

The answer, besides the general issue, denies that the paving is made in conformity with the adjudication and ordinance, and denies the constitutionality of the law and the proceedings under it, by which defendant is made liable for the work.

On motion for a new trial it is urged:

1. That the law under which the paving has been done is unconstitutional.

2. That there was no evidence offered by plaintiff that all proceedings under the act had been complied with.

The first point we do not consider an open question, the constitutionality of this legislation having been long recognized in our jurisprudence. See 10 An. 59, and authorities there cited,

The second point might present some difficulty under the full and specific allegations of the petition and the general denial, had not the answer virtually admitted the passage of the ordinance and the adjudication to plaintiff and joined issue specially on the allegations as to the manner in which the work is done and the constitutionality of the laws and ordinances, while it is silent as to the observance of these formalities. It has been held that, in the absence of proof to the contrary, it will be presumed that the city authorities have complied with the law in this respect. 15 A. 376. .

Everything up to signing the contract has to be done by or under the direction of public officers, in whose favor such presumption exists ; and, as the law requires a public officer to accept the work, and certify to its being rightly done, it is considered that, in the absence of proof of fraud, the acceptance by such officer of the work, which the city is authorized to contract for, is prima fade evidence as to its completion and the manner in which it is done. 14 A. 297.

In this case, the contract and specifications, the certificate of the city surveyor and his testimony are in evidence, and until some rebutting proof is adduced, the defendant must, under the pleadings and the foregoing principles, be bound.

This is not a case in which damages should be allowed for a frivolous appeal.

Judgment affirmed, with costs.


author: Howedd, J.

text:
    The State, on relation of the Crescent City Bank. v. The Judge of the Third District Court of New Orleans, praying for a Mandamus.
    W'hero the appoal is takon within tho usual delay, and security offered, a mandate will ir.sue compelling the judge a quo to send up the appeal, if the case is not within the exceptions men- • tioned in Article 680 of the Code of Practice.
    from the Third District Court of New Orleans, Fellowes, J.
    'Whitaker, Fellows & Mills and Miles Taylor for relator.
   Howedd, J.

This an application for a writ of mandamus directed to the Judge of the Third District Court of New Orleans, ordering Mm to grant the relator a suspensive appeal from a judgment rendered by him in the case of B. W. Huntington v. The Crescent City Bank, No 19,766 on the docket of said court.

The right of appeal from said judgment is admitted, and the only question is, whether or not it shall be suspensive.

Article 575 C. P. provides, that if the appeal be taken within a fixed delay, and a legal and sufficient bond be given, it shall stay execution and all further proceedings, until a definitive judgment be rendered on appeal.

This is the general rule, to which exceptions exist only as established by law.

In this case the application was made within the legal delay, and the required bond and security offered, and it is not shown that the law has deprived the relator of a suspensive appoal. The case is not within the exceptions mentioned in Art. 580 C. P.

The answer of the District judge being insufficient (C. P. 843), it is ordered, adjudged and decreed, that a peremptory mandamus issue herein in the name of the State of Louisiana, directed to the lion. E. T. Fellowses, Judge of the Third District Court of New Orleans, ordering him to grant to the relator a suspensive appeal from the judgment rendered on 27th May, 1865, in the case of B. W. Huntington v. The Crescent City Bank, No. 19,766 on the docket of his said court.


author: InsiiEY, J.

text:
    T. W. Wright & Co. v. James S. Brander, Sr., et al.
    An appellant may be relieved when he has been prevented by circumstances beyond his control from obtaining and filing the transcript of appeal, although the clerk’s certificate has been delivered to the appellee.
    The absence of counsel furnishes no cause for excuse for not complying with the forms of the law.
    from the Fourth District Oourt of New Orleans, Théard, J.

      Miles Taylor for plaintiffs and appellants.
   InsiiEY, J.

The plaintiffs in this suit took a rule in this court on the defendants, to show cause why they should not bring up hereto, from the Fourth District court of New Orleans, the transcript of appeal in the suit therein pending, and have the said transcript filed in the said appellate court, to be proceeded in due course of law.

The grounds upon which the motion rested, briefly stated, are the following, duly sworn to:

1. That a suspensive appeal was granted them in said suit, returnable to this court on the fourth Monday of June, 1864, and that bond, with sufficient legal security, was duly filed in said District court.

2. That, on the 19th May, 1864, James L. Brander, senior, took a rule in said District court on the appellants, to show cause why the said appeal should not be set aside ; which rule was, although twice set for trial, never disposed of.

3. That no transcript of appeal was ever made out by the clerk of the said District court.

4. That this court was duly organized, for the transaction of business, about the 3d April, 1866.

5. That there was no judge for, nor was any-business transacted in, said District court during the intermediate time, when the appeal was granted and the Supreme Court was organized.

6. ThatB. King Cutler, Esq., the counsel of plaintiffs (their only counsel in said case), left the State on 26th November, 1864, on public business, and did not return to it until 6th May, 1865.

7. That, on 29th April, 1866, James S. Brander, Sr., obtained from the clerk of this court a certificate that no transcript of appeal had been filed in said ease, and filed the same in the Fourth District Court, on the 29th April, 1865, and thereupon issued execution thereon, as if no appeal had been taken therein.

8. That T. W. Wright <fc Co. had no knowledge or information that the said transcript of appeal had not been filed in this court, until the sheriff', by virtue of the execution issued on said judgment, on the return into the District court of the non-filing of the transcript within the legal delay.

9. That they did not intend to abandon, but to prosecute said appeal in this court, and that they have, as they believe, done everything required of them for the attainment of that object.

To this rule James S. Brander, Sr., answered, denying the plaintiffs’ right to an appeal in the above suit.

He avers that more than three judicial days had elapsed since the return day of the appeal to this court, before the certificate of the court was obtained and filed in the lower court, and the fi. fa. issued thereon.

He further says, that the motion taken by him in the District court, to dismiss the plaintiffs’ appeal, was indefinitely postponed, and, consequently, waived by the mover thereof; that, if the appeal was not brought up, or transcript made out, it was owing to the fault, neglect and omission of the plaintiffs, and that they cannot avail themselves of their own wrong; that J. W. Thomas, Esq., was one of their counsel, residing in New Orleans, and the absence of the other counsel last winter did nob excuse their neglect. He denied all the other allegations in the rule, and prayed that it be rejected at their costs.

The rule which Brander had taken in the District court to dismiss the appeal was waived, as it was not tried before the return day of appeal. It was held, in Kirkland v. His Creditors, 8 N. S. 597; McDowell v. Read, 5 A. 42, and French and Stark, Receiver, v. Charles Harrod, 9 A. 21, that an a2Dpel-lant may be relieved where he has been prevented by circumstances beyond his control from obtaining and filing the transcrijDt of appeal, although the clerk’s certificate had been delivered to the appellee.

The appellants have not shown satisfactorily that they were prevented by circumstances beyond their control from procuring and filing in this court their transcript of appeal, within the delay prescribed by law; at all events, from moving within three judicial days after the extended return day for all appeals, for an extension of time to bring up their appeal.

The appellants reside in New Orleans, where it is a matter of notoriety this court has been in session since the 8d of April last.

As suitors, prosecuting an appeal in this court, the appellants are certainly presumed to have known that this court was organized and had commenced its sessions; but they contend that their sole counsel, to whom they had entrusted this case, was absent from New Orleans, in Congress, attending to his duties as Senator from this State. -They must have known this, as it was a fact generally known to the community. They had ample time to procure other counsel; or they might themselves have done what was necessary to save their appeal, which required no professional skill.

The absence of their counsel furnishes no cause for excuse.

He was not, as is historically known, admitted to a seat in the United States Senate; and, in any event, the regular session of that body was terminated on the 3d March, giving the counsel ample time to resume his professional practice here.

But this is immaterial to the present enquiry, as we are satisfied that the appellants have not used the means they had to bring up their appeal, and have not shown ordinary diligence.

It is therefore ordered, adjudged and decreed, that the rule taken by the appellants be dismissed, at the costs of the appellants.


author: Hyman, C. J.

text:
    The State on the relation of Jaine Remendo, v. The Judge of Second District Court of New Orleans, praying for a Mandamus.
    No testament can have effect unless it lias been presented to the juclgo of the Parish in which he died, if he died within the State; therefore, an executor in possession of a will has the right to have a nuncupative will registered and executed, although the estate had been fully adminis* tered and the property delivered into the possession of the legal heir, it is not necessary that he should, nor can he, resort to a direct action of nullity, until the testament is ordered to be executed.
    XÍ. PPEAL from the Second District Court of New Orleans, Thomas, J.

      George L. Bright for relator.
   Hyman, C. J.

The relator asks the court to grant a mandamus on the Judge of the Second District Coiu-t of New Orleans, requiring him to order the execution and registry of the nuncupative testament by public act of Pedro Bemendo, deceased, and to deliver letters testamentary to him, as pu’ayed for in his petition to the judge.

Bespondent, in answer, alleges, that the estate of the deceased had been fully administered, and that the property of the succession had been delivered by a judgment of tbe court into the possession of the legal heir, and that the only remedy of the relator would be a direct action to annul said judgment.

What is required of the judge is a mere preliminary proceeding, and not a judgment binding on those who are not parties thereto. 2 An. 726.

It appears, from the will, that relator is an instituted heir, and was appointed executor.

Until ordered to be executed, the will is without effect (C. O. 1637), and relator has no right of action in consequence of the will.

Thus, while the judge announces to relator that his only right is a direct action of nullity, he prevents him from pursuing this right, under the rule, by refusing to order the same to be executed, and thus relator is left without remedy,

It is therefore ordered, that a peremptory mandamus issue in the name of the State of Louisiana, ordering said judge to comply with demand of relator.


author: IiiSUBY, J.

text:
    The Commercial Bank of New Orleans v. The City of New Orleans.
    Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning; and this rule is no less applicable to contracts than to laws. See Article 1943 O. 0.
    A proposition should always be interpreted, secundum subjectam materiam.

    "When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both or by one, with the express or implied assent of the other, furnishes a rule for its interpretation. In a doubtful case the agreement is interpreted against him who has contracted the obligation.
    The usage under a statute, if ambiguous, is its best interpreter. Optima legara interprcs consuedo.

    A charter granted in consideration of water supplied for public purposes will not be construed so as to apply to quasi-public purposes such as for the Oity Hall, etc. A “public ” purpose is for the universal public, and not a portion of it.
    from the Sixth District Court of New Orleans, Howell, J.

      K Rawle for plaintiff.

    The act creating the corporation of the Commercial Bank of New Orleans was passed by the Legislature of Louisiana ■ in the year 1833. Acts, p. 151.
    It is stated in the preamble of the act that the chief object of the company is to be the conveying of water from the river into the city of New Orleans and its faubourgs, and into the houses of the inhabitants. The sections 4, 11 and 38 relate particularly to the conveying of water.
    Section 38 contains the following enactment: “ That the corporation of New Orleans shall be supplied by the said company, free of charge, with all the water necessary for the extinguishment of ñres and any other public purposes: nor shall the city council be subjected to any charge for water furnished to supply the gutters of the said city and faubourgs; and that the company, as they progress in laying aqueducts, shall place, free of any charge whatever, two hydrants of a proper construction in front of each square, at a suitable distance from each other, from which a sufficient quantity of water may be conveniently drawn for extinguishing fires, for wetting, washing and watering the streets and gutters, and any other public'purpose; that on the squares which do not front on the river, the hydrants shall, be placed on opposite sides of the streets, at an equal distance from each other and the corners; that the said hydrants shall be of a proper size, and made so as, at all times, to furnish water for the fire engines and purposes herein mentioned, at all times, during the continuance of this charter, unless prevented by some unavoidable accident; and in case such shall occur, the repairs shall be made and the water again furnished at the expiration of the necessary delay; and the said company shall supply a sufficient quantity of clear, pure and wholesome water for the use of the inhabitants, within the limits aforesaid, at the elevation of fifteen feet when the same may be required; provided, however, that said hydrants shall be under the control of the Commercial Bank.”
    The attention of the court is first drawn for the correction of an error. It is said in the petition, that the city of New Orleans had not paid for the water furnished to certain establishments and places in the year 1853, and that a warrant,, issued for the purpose, had not been paid. This is an error. At the trial, it was shown that the warrant had been paid. So much as relates to this part of the ease is not to be considered.
    At page 4, the petition continues: and it is further shown that the city of New Orleans is now indebted to the Commercial Bank oí New Orleans for water furnished and supplied in the years 1854, 1855, 1856, 1857, 1858 and 1859, and an account is annexed to the petition, for each year, in detail. The whole cost during six years amounts to $12,930.
    The water was furnished and supplied to the public schools, to the offices of the city hall, to the offices of the recorders, k> the houses’ of refuge, to the parish prison, to the corporation prison, to the watch-houses, to the workhouses and to the sugar platform.

      Percy, witness, has been in tho employ of the Commercial Bank since its organization; all the items in the account are correct; it is in the handwriting of witness, and was made out by him.
    Witness states that from the first establishment of the water works, the accounts against the city of New Orleans, for all water supplied for the several items charged in the said accounts were regularly made out every year, presented and paid each year, without objection, until the year 1854, since which the city has refused to pay the accounts. Witness means to say that the account was made out and paid for all water suppled for any items such as charged in the account on file, but that there are some items in the account for which water was not taken in the first instance; refers particularly to the items for water on account of the public schools. There were no such schools till some years after the water works were established; thinks no water was ordered to be supplied to public schools until about 1844 or 1845 ; but as soon as water was taken for the schools, the charge for such water was made, and was paid, without objection, until 1854.
    There was no house of refuge till the year 1851, or thereabout. But the items for the district courts, prisons and watchhouses were charged in the accounts from the beginning, and paid regularly each year until 1854.
    The hydrants referred to in the section 38 of the charter were put up, as the charter requires, at the 'expense of the company, and have been since maintained free of charge, and all water required from these hydrants, for any and all public purposes whatsoever, has been supplied, free of charge, to the city.
    The cost of maintaining those hydrants amounts to nearly $6,000 a year. In witness’ opinion, the quantity of water supplied to the city through these hydrants, if charged at the company’s rates, would exceed, in witness’ estimation, sixty thousand dollars per annum.
    When water was ordered by the city to be supplied, in any other mode than by means of those hydrants, the cost of the pipes laid down for that purpose was paid by the city, and the water furnished in that way charged for and paid by the city, as already stated, till the year 1854, when the first objection on the part of the city was made.
    The sugar platform was not supplied with water until 1858. The pipes were laid down at the request of the city, in 1858, and were paid for by the city. .
    The witness proceeds: The account for water supplied to the-city in 1854, as the same is filed herein, has been regularly made out and charged on the books of the company for each year, but has remained in suspense until this suit was instituted. The witness concludes his testimony by stating that all the water for the several items in account were furnished at the instance and request of the city.

      Blair, witness, corroborates, so far as his knowledge extends, and says also, that all the'accounts for the water supplied by the company are payable on-the 1st of January of each and every year in advance.
    -February 6, 1860. The District court rendered judgment in favor of the Commercial Bank of New Orleans for $12,930, and interest as stated.
    October 9, 1860. The city of New Orleans appealed.
    If it is supposed that the Commercial Bank is required to furnish the city corporation with water for every purpose for which the latter may ask to have it; or if, when furnished, the city need not pay for it, then there is a grave error and a wrong conclusion.
    The chief object of the creation of the Commercial Bank, we are informed, was to convey water from the river into the city of New Orleans and its faubourgs and into the houses of the inhabitants, and that such object would greatly contribute to the security of said city from fire and to the health and convenience of the inhabitants. Thus we see that convenience, health and security^were in view; the convenience and health of the inhabitants, and the security of the city from fire. To aid and effect this, and to furnish the means and facilities therefor, the company is required to furnish water for the extinguishment of fires, and for wetting and washing the gutters and streets, and for any other public purposes, and that there shall be no charge for such supply. In order to supply water for these purposes, the company place, at their own expense, hydrants or fire plugs in each square, from which may be drawn a sufficient quantity of water for the purposes which are mentioned.
    After twenty years’ compliance, the corporation of New Orleans now refuses to pay for the water supplied and furnished to the places and establishments which are stated in the petition and by the witnesses.
    Is there any ground or reason for such refusal ? First, it must be stated that in all that relates to conveying of water, the law creating the company has not been changed or amended.
    We have seen in the section 38 the purposes for which water shall be supplied, free of charge. They are, extinguishment of fires, wetting the streets, washing the gutters, and other public purposes.
    It is not apparent that there is any doubt or mystery in the language of the section. A short examination, however, and some remark must be presented to the court.
    1. To know the meaning of each word used in the section might be sufficient in order to interpret the expressions. What is the meaning of the word public? In the dictionary of Biehardson, it is said that “public” signifies “of, or pertaining or belonging to the people, the many, the multitude. ” In the Louisiana Code, we find: “Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all members of a nation.” Art. 444. Things which axe for the common use of a city or other places, as streets and public squares, are likewise public things. ” Art. 145. According to these definitions, tlie intention of the legislature seems to be free from doubt or question; and that the supply of water to the mayor’s office and other places mentioned in the petition is not for public purposes, and therefore the supply is not free of charge. The object and nature of the supply, the places to which it is furnished, and the manner in which it is used, exclude any other construction.
    2. But apart from all criticism and verbal signification, we can find a suitable and appropriate construction in the act of incorporation, by analysis and by comparison. To this mode of construction we are directed by the Civil Code : “When the words of a law are dubious, their meaning may be sought by examining the context, with which the ambiguous, phrases and sentences may be compared, in order to ascertain their true meaning. C. C. 16.
    In order to apply this rule, we must first learn the nature or character of the supply of water for extinguishment of fires and wetting the streets. It may be safely asserted that these are public purposes. But if it be doubted, let the remaining part of the sentence be examined. We find there the words “other” and “other purposes.” The word “other” is a corelative and specifying word, and its use proves the meaning of the previous part.
    Thus it is shown, in two ways, that extinguishing fires and wetting the streets aro public pm’poses. Now, it is only for public purposes that water shall be supplied free of charge, and without being paid for. Is the supply of water, as stated in the petition and by the witnesses, for a public purpose ? Taking the meaning and intent from the reasoning and authorities referred to, we find that it is not. We find the sense of one clause by comparing it with others, whose meaning is obvious. E. C. L. B. 42, 14.
    Thus the meaning of a word or a phrase may be ascertained frequently by looting at other words in the same law, and particularly in the same sentence. Gopulatio verboeum indicat acceptationem, in eodem sensu.

    3. There is another provision, however, in the same section, 38, which serves to give aid in the interpretation and construction. It is said, “that the said hydrants shall be of a proper size, and made so as, at all times, to furnish water for the fire engines and purposes herein mentioned.”
    The purposes “herein mentioned” are those which are mentioned in section 38, and they are public purposes. For such it is plain that the water furnished shall be only that which is drawn from the street hydrants. For a public purpose, no other mode is intended, and the provision quoted is exclusive of any other. Beferring again to the petition and evidence, we find that for none of the purposes mentioned, is the water taken from the street hydrants, nor is it applied to the extinguishment of fires or wetting the streets.
    It is not required to extend the examination of the act of the legislature. To the foregoing may be added the understanding and acquiescence of twenty years’ duration.
    The District court decided correctly that none of the charges stated in the petition were for water supplied for any public purpose, and were not free of charge.
    The Commercial Bank of New Orleans expends yearly about $6,000 to maintain the street hydrants in good condition. The estimate of the value of the water furnished by means of the street hydrants exceeds sixty thousand dollars per annum, and for this nothing is paid by the corporation of the city or by the inhabitants.

      Miles Taylor and Titos. H. Hewes for defendant and appellant.

    This is a case in which the plaintiffs seek to set aside the plain provisions of a contract between themselves and the State of Louisiana, and which was introduced into the contract for the benefit of the people of the city of New Orleans, on the authority of an error fallen into on the part of the city officials, at different times, since the making of that contract. The temporary practice of the city in paying the charges made against it improperly, by the plaintiff, on which their right to recover in the present action is based, is not ancient enough to have the force of a custom; nor did it obtain at such times, or under such circumstances, as to give it any weight as affording any evidence of the construction placed upon it by the parties making the contract.
    This will be at once apparent from two facts which are patent on the record : 1. The act of the legislature of the State, in which the contract is contained, was passed in 1833; and, 2. The city was not a party to the formation of the contract, and is only a beneficiary under it.
    The question presented in the cause, then, is this : What is the extent of the obligation imposed on the plaintiffs by the act of 1833, in favor of the city of New Orleans ?
    We shall hot make a written argument on this question; but now present to the court the following.points, as those chiefly to be insisted on in the oral one to be made to the court.
    1. It was the intention of the legislature to require a supply of all the water needed for any public purpose, within the limits of the city and its faubourgs, from the plaintiffs, free of charge.
    2. Water required for any use which is to be paid for out of the money in the city treasury, is water supplied fora “public purpose,” and, as such, it is to be supplied by the plaintiffs to the city, free of charge.
    3. The provisions of the 38th section of the plaintiffs’ charter, directing two hydrants, of a proper construction, to be placed by plaintiffs, “free of any charge whatever,” in front of each square, were not intended to limit the supply of water for public to that to be furnished by those hydrants, but was only designed to limit the obligation of the plaintiffs in furnishing the fixtures requisite for distributing and carrying water to the points where it was to be made use of.
    4. The provisions contained in the act No. 228 of the acts of 1852, approved March 17th, 1852, support the construction of the act of 1833, contended for by the appellant.
   IiiSUBY, J.

This action was instituted by the plaintiff to recover from the defendant the aggregate sum of twelve thousand nine hundred and thirty dollars, for water furnished and supplied by the plaintiff to the public schools, to the offices of the city hall, to the offices of the recorders, to the houses of refuge, to the parish prison, to the corporation prison, to the watchhouses, to the workhouses and to the sugar platform, as the same is particularly set forth in the plaintiff’s petition and in the detailed account annexed to it,

The plaintiff's demand is resisted by the city, which traverses it, by setting up the general issue.

The plaintiff had judgment for the whole amount in the court below, and from that judgment this appeal is taken.

The defence, on which the defendant relies to defeat the plaintiff’s claim is, that, under the charter of the Commercial Bank, it was incumbent on it to supply all the water needed for any public purpose, within the limits of the city and its faubourgs, free of any charge; and, if this were really so, the plaintiff’s claim should be rejected.

To determine whether this position is a tenable one', reference must be made principally to the thirty-eighth section of the act of incorporation, which, as the result of our present enquiry depends upon a correct solution of it, is herein transcribed, in extenso :

Sec. 38. Be it further enacted, that the corporation of New Orleans shall be supplied by said company, free of charge, with all water necessary for the extinguishment of fires and other public purposes; nor shall the city counsel be subjected to any charge for water furnished to supply the gutters of the said city and faubourgs; and that the said company, in the progress of laying aqueducts, shall place, free of any charge whatr ever, two hydrants of a proper construction, in front of each square, at a suitable distance from each other, from which a sufficient quantity of water may conveniently be drawn, for extinguishing fires, for wetting, washing, watering the streets and gutters, and any other public.purpose ; that, on the squares which do not front on the river, the hydrants shall be placed on opposite sides of the streets, at equal distance from each other and the corners; that the said hydrants shall be of a proper size, and made so as at all times to furnish water for the fire engines and purposes herein mentioned, at all times during the continuance of the charter, unless prevented by some unavoidable accident, and in case such shall occur, the repairs shall be made and the water again furnished at the expiration of the necessary delay; and the said company shall supply a sufficient quantity of clear, pure and wholesome water, for the use of the inhabitants within the limits aforesaid, at the elevation of fifteen feet, when the same may be required: provided, however, that the said hydrants shall be under the control of the Commercial Bank. ”

In eonneetion’with section thirty-eight, it will be useful to refer to a portion of section eleven of the same act, which provides for the expeditious progress of the water works : “so that the city of New Orleans and the faubourgs thereof, may be furnished with water in the streets; and such inhabitants may procure it by means of conduits or pipes, within their houses and lots, at a price to be regulated by the company.” Had the purposes for which water was to be furnished to the city, free of charge, been fully specified in section thirty-eight, or elsewhere in the act, no question could possibly have arisen as to the purposes intended; but the use of the words “other public purposes,” as the complement to the specified purposes, in one instance, and the words “any other public purpose,” in the second instance, is what gives rise to this controversy and necessitates a judicial interpretation of the section referred to, in order to determine whether the charges set out in the bill of particulars are exigible or not.

The contract contained in the plaintiff’s charter was one between them and the State, and the connection between the city and the water works company has existed from the outset, and is of the most intimate character, if the city was not actually a party to it. The city furnished two out of the five commissioners. It was authorized to subscribe, and did subscribe for five thousand shares of the capital stock of the company, not subject to reduction. It might annually appoint a committee, to have access to such of the books of said bank as relate to the water works, and to make such extracts from the same as it might deem necessary. The very object of the incorporation of the company was, as stated in the preamble of the charter, “ to convey water from the river to the city and its faubourgs,” to contribute, among other things, “ to the security of the city from fire.”

Reading sections 11 and 38 of the plaintiff’s charter or contract, with the view of ascertaining the common intent of the parties, and, to this end, applying to it those rules of interpretation which the law furnishes to unravel doubtful or obscure clauses in statutes or contracts, we are not greatly embarrassed in putting, as we think, a correct construction on that section which requires the bank to supply water to the city of New Orleans, free of charge, for the public purposes therein prescribed.

The first rule for the interpretation of a law is found in Article 16 of the Civil Code:

“ Where the words of a law are dubious, their meaning may be sought by examining the context, with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning;” and this rule is no less applicable to contracts than to.laws. See Article 1943 0. C.

These rules are merely the enunciation of the one founded in common sense, that a proposition should always be interpreted secundum subjeclam maieriam.

The words, “and other public purposes,” first used in the section 38, are intended as the complement to the only prescribed purpose, so far mentioned : the furnishing of water necessary for the extinguishment of fires, free of charge; and the words, “ for any other public purpose,” subsequently found in the same section, are also used as the complement not only to the first prescribed purpose, the extinguishment of fires, which is again mentioned in the same connection, but to other prescribed public purposes, for “wetting,” “washing” and watering the streets and gutters;- and the words, “other public purposes,” and “any other public purpose,” are to be understood as being of a like character with the public purposes speciallymentioned; and they are all, whether specially described or embraced in the more general or comprehensive term, to be subserved in the mode, and the only mode, prescribed in section 38.

The act of incorporation contemplated and provided but one place, and one mode, by which the city was to be furnished, without charge for the necessary supply of water for the public purposes mentioned, specially or generally. The place was “in the public streets,” and the mode was through the company’s hydrants placed therein, and controlled solely by them. That was one of the prescribed modes; the other mode was a lateral division of the water from the main pipes or aqueducts, through connecting pipes, into the yards and houses of inhabitants; but, that supply, by the last mode, at a certain elevation, to whomsoever and for whatever use it was furnished, was not intended to be a gratuitous supply, or one free of charge, but for a price to be fixed by the company.

The mode of supplying water, free of charge, for public purposes, is a key to the sense in which those words must be understood. It was the supply to be furnished in the streets and through the hydrants. This view of the obligation imposed on the bank to furnish water to the city, free of charge, for every public purpose, might supercede the necessity of enquir-ing into the verbal signification of the word “ public,” as used in section 38. Whatever was the character of the described public purposes, the use of the words other and any other public purpose, put all the public purposes, whether special or general, if not into the same class, upon an equal footing, so far as related to the mode of satisfying them.

Under the Roman law, things for public use were divided into two kinds only: 1. Those destined for the common use of mankind, and which every one might freely use, such as rivers, seas, the banks of rivers and the sea shore. These things were destined by nature for public use. 2. Those things which public policy deemed necessary and appropriate in spiritual or temporal affairs. In the last mentioned class were embraced the streets, highways, market places, the [places where courts of justice were held, colleges, town-houses and other public places. Domat, book 1, tit. 8.

Art. 445 of our Code subdivides the last class into two kinds: 1. Common property, to the use of which all the inhabitants of a city, or other place, are entitled in common; such as the streets, the public walks and the quays; and, 2. Common property which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place; but may be employed for their advantage by the administrators of its revenues.

The “public purposes” intended by the legislature in the act of incorporation are such as bear relation to the things properly classed as public things, and which are included in the first division of common things, in Art. 449, such as the streets, the public walks, etc.

It was not contemplated that such buildings or establishments as are included in the second division of common things, and which are not for the common use of all the inhabitants of the city, although employed for their advantage, such as the city hall, the court house, the public school, etc., should receive from the bank a supply of water free of charge.

The purposes specially mentioned in Art. 38 are strictly public purposes, connected with public things, in which all are interested, and which are for the common use of all; and “ other public purposes ” contemplated by the legislature were, it is safe to presume, of a like character.

If water was needed for any quasi-public purpose, to be furnished gratuitously, provision should have been made for it in the charter, which prescribes the obligations of the bank, and which no consideration of public convenience can render more onerous.

The act of the legislature, passed in 1852, at page 158, exempting the property held by the plaintiffs from any taxation by the city of New Orleans, provided “that all charitable institutions in the said city be supplied with water free of charge,” was simply a proposition to the plaintiffs to grant them this boon; provided they would supply, not all the public or quasi-public institutions in the city, which were then paying without objection, but only all charitable institutions (public and private) in the city. It throws no light on the contract or charter granted in 1833, even if the bank had accepted the proposal, unless the fact being manifest that all the public charitable institutions in the city had been furnished, up to the date of the act, with water, for a price paid by the city; that the exemption from such payment in future, for a valuable consideration, was virtually a recognition by the legislature that 'the construction which the parties had put upon the words, “other public purposes,” was the correct one.

It is in proof that, up to the year 1854, more than twenty years after the date of the charter, the plaintiff and' defendant have put upon the sections 38 and 11 the construction we now put upon it. Up to that time, the water rates were always paid for the purposes described in the petition; and this is a fit case to apply the rule of interpretation found in Arts. 1951 and 1957 of the Civil Code. See also 11 A. 113; 10 A. 601; 4 A. 441; 2 A. 475; 1 A. 230, 232.

It has been held by this court, that “the usage under a statute, if ambiguous, is its best interpretation.” Optima legum inierpres consuetodo.

“The common interpretation of statutes which had existed for a length of time, will be considered, as it generally is, the correct interpretation.” 1 Hen. Dig. 1861, 786-7.

In Clay v. Bullard, 9 Rob. 308, it was held that “contracts will be construed as the parties must be supposed to have understood them at the time of their execution.

It has been held that the intention of the parties must be sought in the whole language and the surrounding circumstances, to which the instrument itself points. Peck v. Bemis, 10 A. 160.

The argument of defendant’s counsel, that water required for any use which is to be paid out of the money in the city treasury, is water supplied for a public purpose, and as such, it is to be supplied by the plaintiff, free of charge, is wholly untenable, unless the words used, “other public purpose” and “any other public purpose,” are equivalent to and convertible terms with “ any purpose whatever,” which are no where to be found in the charter.

The judgment of the District court is according to law and the evidence, and must be sustained.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be affirmed, the costs of appeal to be paid by the appellant.

Howell, J., recused.


author: Lüsley, J.

text:
    Widow Vincent v. John Schweitzer.
    ‘Where the suit was originally for more than three hundred dollars hut a part was remitted so as to reduce it below that amount, this court cannot entertain jurisdiction. But where are-conventional demand is set up for an amount over three hundred dollars, the court Will hear the defendant’s appeal on that.

      ÍX PPEAL from the Second District Court of New Orleans, Sandlin, J.

      E. Filleul for plaintiff.

      J. Magnefor defendant.-

    1. The amount in dispute is tested by the sum claimed in the petition. McKee v. Filis, 2 An. 163; Succession of Stafford, 12 Rob. 178; Gerber v. Marsoni, 3 Rob. 370.
    2. The plaintiff cannot give jurisdiction by fictitious claims, even when embodied in his petition. Babbs v. Stevens, 3 Rob. 143; Red River R. R. Co. v. Williams, 16 La. 183; Orillon v. Slack, 17 La. 103, 104; and she cannot consequently take off said jurisdiction by fictitious reductions.
    3. The claim of plaintiff and the contingent counter-claim of defendant are an'entirety by the nature of the case, and cannot be separated ; cannot be investigated separately without doing a manifest injustice to the defendant. City of New Orleans v. The Estate of Arthur McArthur, 12 An. 47. Besides, these two claims may be considered as consolidated. Marshall <& James v. Fall <& Co. 9 An. 92. See the declaration of Mrs. Dumoulin, p. 12.
   Lüsley, J.

The demand of the plaintiff against the defendant was originally stated to be over three hundred dollars, but was afterwards admitted by the plaintiff, in the record, to be for a sum less than three hundred dollars. The amount in dispute is, consequently, too small to give this court jurisdiction of the present appeal, which is not, therefore, judicially before us. See State Constitution of 1864, tit. 5 Art. 70; Act of Leg. 1864, No. 11, p. 18.

There is, however, in the same record, a reconventional demand set up by John Schweitzer v. Widow Vincent, for the sum of four hundred and forty-five dollars, for rent. We can, therefore, entertain his appeal for that. See Gove v. Kneatig, 3 Rob. 387; Hanna v. Bartlette, 10 Rob. 438; Exparte Goodwin, 11 Rob. 12.

The case of Marshall & James, 9 An. 92, cited by plaintiff in reeonvention, is not, we think, applicable to a case like this.

"We have examined the demand of the plaintiff in reconvention and the evidence adduced on the trial of the case, and, we think, it fails to prove any indebtedness by the-defendant for rent, for the period for which it is claimed. Aetori incumbit probatis.

The plaintiff having failed to make out his case, the judgment of the lower court on the reconventional demand must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the court below on the reconventional demand be affirmed, the costs of appeal to be paid by the plaintiff in reconvention and appellant.


text:
    John Williams v. William Halsmith.
    The holder of a note for the payment of money, according to the act approved March 20th, 1850, d&ri only recover eight per cent, interest, notwithstanding the rate of ^interest agreed upon may bo beyond eight per cent..
    from the Fifth District Court of New Orleans, Ogden, J.

      B. Egan for plaintiff. Outler & Thomas for defendant and appellant.
   Hyman, C. J.

Plaintiff sued defentant on a promissory note made by defendant on the 3d day of May, 1860, in the city of New Orleans, where-* in he promised to pay, in the Citizens’s Bank, to C. B. Logan & Co., or order, the sum of six hundred and fifty dollars, with ten per cent, interest from date.

Defendant, in answer, denied that plaintiff was owner of the note, and propounded to him interrogatories.on facts and articles.

The answers of plaintiff to the interrogatories fully proved his ownership in the note. ’

Judgment was rendered in the lower court against defendant for the amount of the note, say $650, with ten per cent, interest from its date.

Defendant appealed.

The judgment is erroneous in allowing this high rate of interest.

It is provided by an act entitled “an act relative to the rate of interest,” approved March 20th, 1856; that the holder of a note for the payment of money can only recover eight per cent, interest, notwithstanding the rate of interest agreed upon may be beyond eight per cent.

It is therefore ordered, adjudged and decreed, that the judgment of the District' court be avoided and reversed; and it is farther ordered, adjudged and decreed,"that plaintiff have judgment and recover of defendant the sum of six hundred and fifty dollars, with eight per cent, per annum interest thereon from the 3d day of May, 1860, till paid, and the costs of suit, less the cost of appeal. The cost of apppeal to be paid by ^plaintiff.


author: Labauve, <T.

text:
    Edward Conery v. James O. Noyes.
    Where there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action. So, where a defendant accepted and used a stemboat, without objection, hb can still recover from the plaintiff damages in reconvention, on a contract unskillfully executed.
    ÍJL PPEAL from tlie Sixth District Court of New Orleans, Leaumonl, J.

      Durant <& Hornor for plaintiff.

    The verdict of the jury in this case is equivalent in law to a verdict on the defendant’s reconventional demand in favor of this plaintiff; that, in error, the judge of the lower court reserved the right of defendant to sue respondent in a new action ; and though a fair trial has been had before the jury on this reconvention, and a virtual verdict thereon rendered, permission is given to renew the same litigation hereafter, contrary to well settled principles of law. Interest rei publicas, ul sil finis litium.

    Wherefore, respondent prays that the judgment appealed from be amended, and final judgment rendered in his favor on the defendant’s re-conventional demand ; that, in all other respects, the judgment be affirmed, with costs and general relief.

      Atocha <& Howe for defendant and appellant.

    The judge, before whom the case was tried, erred in charging the jury that, “if the defendant accepted and used, without objection, the steamboat Bella Donna when she came from the hands of the plaintiff, he cannot recover, in reconvention, damages for failure of plaintiff to perform his duty in the premises.”
    In support of this doctrine, the judge cites the ease of Loreau v. De-clouel, 3 La. p. 1, and Dyerr v. Seals, 7 La. p. 134.
    The illustration, in the opinion of the judge, drawn from the art of portrait painting, is not in point. The plaintiff did not make and deliver to us a steamboat; if he had, we might, after a fair trial and acceptance, have been bound to pay him its real value; but no such state of facts is in this case. The facts are, that the plaintiff, as lessor of his professional skill, undertook to superintend the construction of the defendant’s steamboat, built upon the defendant’s barge with the defendant’s materials, and with labor paid by the defendant. The boat has always beenlthe defendant’s. The plaintiff has furnished to her nothing but his professional supervision, and this has proven to have been an injury. With what reason, then, can it be said that becairse the defendant has retained in his possession and use a boat which has always been his and always in his possession, he cannot maintain an action against the plaintiff for malpractice in his professional employment.
    So with the case of an apparatus for a broken leg, instanced by the judge below. That is not in point. The real illustration is a broken leg itself. If a surgeon sets my broken leg, and sets it so unskillfully that it is unduly distorted, can he reply to my claim for damages (precisely similar to the claim in reconvention in the case at bar), “you cannot recover because you have accepted and used your leg since I had it under my charge?” We think not. But the doctrine of the judge below, if carried out fully, would require me to abstain from walking (or limping) until my suit should be decided. It is equivalent to saying to the defendant in this ease : “You had no right to try or use your steamboat at all. You shoidd have abandoned her and let her rot until your case could have been tried. The fact that you are in possession of your own boat precludes you from suing' for damages to the boat. ”
    The cases of Lorenzo v. Declouel, and Dzjer v. Seals, then, merely establish this: that a plaintiff who has delivered incomplete work, which has been accepted, may recover its actual value, but they by no means decide that the dei'endent, in the same action, may not recover, in rcconvention, damages against the same plaintiff. On the contrary, when construed with the case of Overton v. Simozi, and tlio other cases cited ■ under the first point of this argument, they clearly show the contrary. . The spirit of these cases, as stated by Mr. Hennen with precision in his Digest, edition of 1861, p. 1025, No. 4, as follows :
    “In commutative contracts, a partial performance authorizes a recovery to the amount to which the other party is benefited, after deducting the damages sustained by a failure to perform the other parts of the agreement. ” 3 L. 1, 4 L. 465, etc.
    The jury neglected to make any. finding upon the claim of the defendant. Whether this arose from the erroneous charge of the judge, or from ignorance on the part of the jury, is impossible to determine. But the fact remains that the claim of the defendant was pleaded, proven and submitted to the jury, and yet remains undecided by them. It should be sent back to a jury for decision. Johnston v. Bagley, 4 La. p. 334; Welsh v. Baz'row, 9 R. p. 520.
    The cases cited by the judge below, in opposition to this view, are not in point. The first, Kelly v. Galdwell, 4 La. p. 40, was .a case where damages were claimed by plaintiff, an actor, for breach of contract, and the defendant reconvened and charged the breach to have been occasioned by the plaintiff. There was but one question, one breach of contract, in the case, and the court very justly decided that a verdict in favor of the latter was a verdict against the former.
    But, in the case at bar, as in tlio case of Overton v. Simon, it is not impossible for both parties to recover, the plaintiff for his labor, and the defendant for his damages; and the rule, in Johnston v. Bagley, applies, namely: that the defendant cannot be put out of court with the pleasing assurance that he may bring a new suit, but that he is entitled to have a finding upon its pleadings and evidence.
    The other cases cited by the judge below are equally inapplicable. M'win et al. v. Bissell el at, 17 La. p. 92, was an action to compel compensation of a judgment, and the question we are considering, coming up quite. indirectly, was disposed of thus: “Admitting that it might have been assumed as error that the jury took .no.notice of the reconvention, yet no objection was made to the form of the verdict on the appeal, and in our opinion the judgment forms the authority of the thing adjudged.”
    The case of Theriot v. Henderson, 6 An. 222, is based by the court upon that' of Kelly v. Galdwell, and should be limited to the state of facts 'reported in the latter.
   Labauve, <T.

Petitioner alleges that the defendant employed him as his agent to superintend the building of the steamer Bella Donna, to purchase materials and supplies for the said boat; that no amount was specified as the value of services, which are well worth 1300 per month, commencing- 1st December, 1863, to 21st March, 1864, making $1,100, for which ho prays judgment.

The defendant answered by a general denial, and that plaintiff, representing himself to be skillful in such matters, engaged himself to respondent to superintend certain repairs of the steamer Bella Donna, about November, 1863, and that, in violation of his agreement, the plaintiff conducted and superintended said repairs so unsldllfully and extravagantly, that the said repairs cost upwards of $40,000, instead of $22,000, as he had promised, and that he has suffered damages to the amount of $32,000, which he pleads in reconvention, and for which he prays judgment.

It was admitted on trial that plaintiff was employed by defendant, as set forth in plaintiff’s petition, and that his services were worth the sum of $300 per month, if he faithfully performed the duties of his profession and employment.

After the case had been tried, and was about being submitted to the jury, the defendant took a bill of exceptions to that portion of the charge of the court which states: “that, if the defendant accepted and used, without objection, the steamboat Bella Donna, when she came from the hands of the plaintiff, he cannot recover, in reconvention, damages for failure of plaintiff to perform his duty in the premises.”

The jury found a verdict for plaintiff for $1,100 ; and the court, after having overruled a motion for a new trial, gave judgment accordingly, and the defendant took this appeal.

We are of opinion that our learned brother below erred in his charge excepted to. If the plaintiff performed his contract unskillfully, and in such a manner as to cause damages to the defendant, it was an active violation of the contract; and the receiving and using of the steamboat by defendant cannot be considered as a discharge of plaintiff’s liability and responsibility to the defendant. C. C. Art. 1926. Lobdell v. Parker, 3 L, 331. Morton v. Pollard, 9 L. 174. Overton v. Simon, 10 A. 685. Miller v. Stewart, 12 A. 170. Nicholson v. Desobry, 14 A. 81.

It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and that the judgment appealed from be annulled and avoided, and the case remanded, to be proceeded in according to law; the appellee to pay the costs-of appeal. ,