text:
    No. 875
    First Circuit
    GUILLOT v. BATON ROUGE YELLOW CAB CO., INC., ET AL.
    (December 8, 1931. Opinion and Decree.)

      Chas. A. Holcombe, of Baton Rouge, attorney for plaintiff, appellee.
    Jess Johnson, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff was struck by an auto on North Boulevard street in the, city of Baton Rouge, at night, about 8:30, August 29., 1930.

He is suing defendant company and the Hartford Accident & Indemnity Company for $5,000 in damages for the injuries which resulted from the collision.

North Boulevard runs east and west through the city of Baton Rouge. It is. thirty-five feet wide from curb to curb. There is an old car track about the center of the street where the collision occurred! The south-side sidewalk is seventeen feet from the south rail of the car track, and the sidewalk on the north is twelve feet from the north rail.

In his petition, plaintiff alleged that he had been struck by the auto near the south rail of the street car track. In his. testimony he said he had made two steps, about four feet, from the south-side sidewalk when he was run over.

It was overwhelmingly and unquestionably shown that the collision occurred near the south rail of the car track or between the two rails. It is therefore plain that plaintiff, by some unaccountable way, fell into an error in saying the accident had occurred four feet from the sidewalk on the south side of North Boulevard street.

The defendant company, on the other hand, alleged as a defense in its answer that plaintiff had been struck by the auto as he dashed from behind a car which was going east on the south side of North Boulevard; plaintiff running at the time across that street. The auto w.hich ran over plaintiff was being driven at the time by Carl Hudson, an employee of defendant company. His testimony is th,at he had passed this car going east before he reached the point where the accident occurred; and it is therefore evident that plaintiff did not dash behind that car into the pathway of the auto.

Plaintiff and Verrett drove to North Boulevard in Verrett’s car, which was parked on the south side of that street. Yerrett was driving. Plaintiff got' off on the right-hand side on the sidewalk and went around the back of the car with the intention of going north across North Boulevard.

His testimony is, that he started to walk across to the north side of that street. He said he looked north, east, and west before proceeding across, and that there were then no cars on North Boulevard, except that of defendant company which Hudson was driving from the east, and that it was then half a block away. The record shows that the auto was then at approximately that distance, that there was no other car in sight, and there is no evidence that plaintiff had not looked in every direction before he started to cross the street.

In going across, he had, under the existing conditions, the right to assume that the- drivers of automobiles would exercise reasonable care to avoid injuring him, and that they would observe the law. Berry on Automobiles (4th Ed.) p. 331, par. 326; Cox v. Reynolds (Mo. App.) 18 S. W. (2d) 575-578.

Verrett’s car was parked facing the east. Verrett was in his car, and says he saw when plaintiff was “hit,” and was then on the south side of the old car track.

According to the testimony of Verrett and plaintiff, the latter walked across the street and was not running when s-truck, as testified to by Hudson, driver of the auto, and Danna, a witness for defendant company. Counsel for defendant says in his brief that counsel for plaintiff “caught’’ Danna on one or two questions, but from reading of the testimony it is- easy to see that his answers were forced by the adroit and rapid questioning. That Danna was “caught up” on some of the questions we find to be true, but not as to his answers being the result of rapid or skillful interrogatories. The fact is that his testimony is so conflicting and unsatisfactory that it must, as a whole, be considered of no probative value.

In the answer of defendant company, above referred to, it is alleged that plaintiff had dashed from behind a car going east and was running across North Boulevard when struck. The proof shows, as before stated, that the car going east had passed the auto Hudson was driving before it had reached the point of collision, and consequently there had been no such dashing by plaintiff from behind that car. There is left only the testimony of Hudson to the effect that plaintiff was running across the street at the time, as against that of plaintiff and of Verrett who says he was walking and not running. Plaintiff was crossing to the north side of Boulevard street to buy some eggs for his supper. There is nothing in such an errand that we can see which' would haye impelled him to unusual hurry.

Counsel for defendant, we presume, to find support for his theory that plaintiff was hurrying across Boulevard street, refers to the fact that the weather was rainy. The proof is that it was “misty” or slightly rainy. Such weather in the hot days of August would not incline any one, we do not think, to hurry for the purpose of negotiating a street thirty-five feet wide.

Plaintiff says that when he saw the auto coming on him he attempted to step southward to get out of its way, but that the driver veered to his left, striking him with the left fender. Hudson, the driver, says he veered to his right, and not to his left. Whether1 he turned to his left or his right, it is certain that he struck plaintiff, causing the damage.

The real, vital issue in this ease is- as to whether Hudson could or should have seen plaintiff in time to avoid the accident. Hudson says he was traveling at about eighteen miles an hour. Plaintiff and Verrett estimated his speed at about twenty-five, thirty, or -thirty-five miles an hour. Verrett says Hudson’s car went about thirty-five feet beyond the point of collision before stopping. McLaughlin, another witness for plaintiff, says he got to the point of collision immediately after the accident, and that the auto had traveled about that distance. Other witnesses testified that the body of plaintiff was lying, after the impact, a few' feet from the hind wheels of Hudson’s auto.

Considerable doubt was thrown around that issue, and it is therefore difficult to say with satisfying. certainty that Hudson was traveling at an excessive speed because of the distance his auto had gone after the impact. It is, however, clearly shown and beyond dispute that the lights on Hudson’s car were burning at the time and that there was no obstacle or obstruction of whatsoever character to interfere with Hudson’s vision.

In ‘the case of Norwood v. Bahm, 14 La. App. on rehearing, page 269, 129 So. 183, 184, we had occasion to pass on the rule governing in this state on the last clear chance doctrine. In that case we referred to the general rule in many jurisdictions which require the person injured to prove, in order to recover, that defendant “after seeing the danger could by the exercise of ordinary care, have avoided the injury.”

In referring to this generally accepted rule, 29 Cyc. 531, says, as we said in the opinion, as follows:

“But in some other jurisdictions it is extended to cases where defendant might have discovered the peril by the exercise of reasonable care or has . neglected the most ordinary caution in failing to do so.”

We held that the latter part of that rule, above quoted, had been adopted by our Supreme Court in the case of Tyler v. Gulf,. C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, where the court, after stating the generally accepted rule hereinabove cited, added the following:

“If defendant did not see the danger, it must appear that plaintiff has clearly shown that defendant might by the exercise of ordinary care have seen the danger in time to avoid the injury.”

The 'Norwood v. Bahm case is referred to, not because the facts, are similar to those here presented, but because the doctrine there recognized is equally applicable', and must be applied in the instant case.

Here Hudson says when he first saw plaintiff he was then about six feet from his car, that he applied the brakes, and immediately veered to the north to avoid the accident, but that it was too late, and was unavoidable. Hudson, beyond question, had an open and unobstructed view ahead of him, and could have unquestionably seen plaintiff in time to avert the collision, had he exercised ordinary care. It is proved by his own lips that he never looked “at all” to his left as he was driving the car at that time. He repeatedly states that he was looking ahead, it is doubtful from his testimony if he looked to his right, but absolutely certain that he did not cast a glance to his left, the direction from which plaintiff was coming.

The proof here is that plaintiff saw the danger in the approaching car, and attempted to step backward to escape the collision, but failed. Even if he had not seen the danger, defendant is responsible under the rule of thei last clear chance, as recognized in Tyler v. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, because defendant, through Hudson, employee, “might by the exercise of ordinary care have seen the danger in time to avoid' the injury.”

In the case of Lanphier v. D’Antoni, 14 La. App. 441, 131 So. 628, 629, the court, in referring to the facts of the case, said:

“Mrs. Lanphier testified that at the time she started to cross, the intersection defendant’s car was a full city block distant, or about two hundred feet. Defendant, who was driving his own car at the time, testified that he did not see Mrs. Lanphier until within five feet, or just before striking her. The trial judge concluded that defendant was at fault because of his failure to avoid the accident, the plaintiff being within .his vision when there was ample time to stop his car before striking her, whether he saw her or not.”

Defendant was held liable under the rule of the last clear chance. The facts are similar in every essential particular in this case to those in the Lanphier case, and the same rule should apply.

QUANTUM

Plaintiff was knocked unconscious by the impact, and, when Dr. Watson reached the hospital in Baton Rouge where he, was carried, he found plaintiff in a semi-conscious condition. An X-ray examination disclosed that he had two fractures of the skull. He was bleeding from the ear, had a cut on the chin, an ear cut through, a bruise on the leg, and one on the shoulder, one arm cut, and was vomiting bloody fluid. Paralysis resulted on one side of his face for a while, which Dr. Watson believed had passed off. The doctor said if the nerves or organ of the ear were affected plaintiff would be permanently deaf.

Another physician, Dr. Weis, examined him twice. The test of his hearing, he says, showed he had received a very severe injury to the organ of hearing, or to the nerve of hearing. The fracture of his skull, this doctor said, had caused a permanent impairment of his hearing. t

Plaintiff says his hearing was good before the injury, and his wife so testifies.

Vernon Parenton, a barber, testified he had, while shaving plaintiff prior to the accident, noticed “he was. slightly hard of hearing.” The barber admitted his hearing was much worse now than it was before the accident, saying: “He can’t hardly hear now.” The record itself shows that, when plaintiff was testifying, the questions put to him had to be repeated, and that he had to be addressed in a “loud voice.” The evidence shows, as we read the record, that his hearing has been permanently impaired by the injury.

Plaintiff was 2 weeks in the hospital, in bed 6 weeks, and confined to his home 45 days; suffered pains 8 weeks.

Prior to the injury, he was .working for the Standard Oil Company, and went back there to resume his employment. He. was found, after physical examination, to be unfit, and lost his job. He is now driving a truck for a living, and says he is a nervous wreck. He paid or incurred obligations over $300 for medical attention and services.

The lower court granted him $2,000 in damages. We find this sum inadequate to compensate him for the injuries.he has received, the sufferings he has undergone, and the expenses he has incurred. The amount allowed will be increased to the sum of $3,000.

It is therefore ordered, adjudged, and decreed that the. judgment be, and is hereby, amended by increasing the amount decreed below to the sum of $3,000, that plaintiff have judgment against defendants for said increased amount, and, as thus amended, the judgment be affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 884
    First Circuit
    SHINGLEUR v. BATON ROUGE ELECTRIC CO.
    (December 8, 1931. Opinion and. Decree.)
    G. Caldwell Herget, of Baton Rouge, attorney for plaintiff, appellant.
    Taylor, Porter & BrooKS, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

In September, 1929, plaintiff, a lineman for defendant company, fell from a telephone pole from which he suffered injuries to his hand and head. At his solicitation and against the advice of the company, he obtained a lump sum settlement from defendant for the loss, of the use of his hand. 'He had been discharged as being entirely cured from the hospital at Baton Rouge when he made this settlement, was not then suffering from injury to his head, and, if' any existed, the company was equally unaware of that fact.

The settlement was fair and just, and is not attacked by plaintiff. The injury to his hand has therefore passed out of the case.

Plaintiff claims that since the settlement he has been suffering with dizziness and headaches. He alleges that a blood clot or piece of bone has been deposited on his brain where the fracture to his skull occurred, and that there “is a grave possibility he may be subjected to epileptic fits or insanity.”

This dizziness and headaches, also the grave possibility of the development of epilepsy and insanity, he avers, are the direct result of his head injury. Averring that he is disabled and physically incapable of doing work of any reasonable character, he is demanding compensation frcm defendant company for four hundred weeks, aggregating the sum of $8,448, subject to a credit of $1,731.84, amount received • when the settlement, above referred to, was effected.

Judgment was rendered below rejecting plaintiff’s demand, from which he prosecutes. this appeal.

It was clearly shown at the trial where plaintiff appeared as a witness that he was absolutely mentally normal, and had never suffered since the accident, from epilepsy, fits, or insanity. The very allegation in his petition “that there is a grave possibility that he may be subjected to epileptic fits or insanity” shows that he grounded himself on the future possible development of those afflictions. He formulated his averments of the possibility of these future troubles, also in reference to his. dizziness and headaches, on the advice he received from Dr. W. H. Cooke, of Baton Rouge, wi(¿h whom he had a consultation about the injury to his skull.

In testifying on the subject of the injury to his head, Dr. Cooke said that theré was a possibility, but “not a grave possibility as far as insanity is concerned.” He said he believed such an injury “leaves character changes which are on the border line of insanity.” Dr. Cooke said thereafter that he had not observed anything in the personality of plaintiff showing that he had undergone any change in character. This testimony from Dr. Cooke, from whom plaintiff took advice, fails altogether to support his allegation that there “is a grave possibility that he may be subjected to epileptic fits or insanity.”

Dr. Bird of Baton Rouge examined plaintiff’s head injury three times. He says, that there is. a foreign body imbedded in his brain or pressing against it. His opinion is that there is great possibility of the ultimate result of epilepsy or insanity.

When plaintiff was injured, he was brought to the hospital in Baton Rouge, where he was’ placed on a table and was examined by Dr. McHugh.

Dr. McHugh introduced-his finger in the wound which could be palpated and found a small button of bone depressed. He says that there were no symptoms of the compression of the brain, and that at the time he testified he did not think there was any pressure there.

Not long after treatment at the hospital, plaintiff was. discharged as cured.

Dr. McHugh said practically there was no chance for epilepsy and a very vague possibility of insanity, resulting from the fracture in plaintiff’s, skull.

Drs. Weis and Riche were also of the opinion that any danger of plaintiff suffering from epilepsy or insanity as a result of that wound must be reckoned as a remote possibility.

The preponderance of the expert testimony shows, as we read the record, that there exists only a vague or remote possibility that plaintiff may at some future time suffer from epilepsy or insanity as the result of his. head wound. There is not even a probability that he will have such an unfortunate experience. He was perfectl> rational at the trial, and we have no reason whatsoever to believe from the evidence that there will be any character change in his personality upon which we could grant relief to him on his claim for compensation on that score.

We now pass to the alleged dizziness and headaches which plaintiff ascribes- to his head injury, and which he says disabled him from doing work of any reasonable character.

In testifying about headaches, Dr. Cooke; expert witness for plaintiff, says there are one hundred and fifty causes for headaches, and for some of them medical science is unable to account.

Dr. Weis testifies that numberless thousands suffer from headaches and dizziness .who never had a skull injury. It seems that these troubles are rather common, and can arise from many causes, some of which, so far, are unknown to physicians.

It is impossible for us from that character of evidence to say that the dizziness and headaches of which plaintiff complains were the direct result of the wound to his head, as it is by him alleged. It would indeed be impossible to say that this dizziness or headaches had any connection whatsoever with that injury, directly or indirectly. The cause that brought; on that trouble may always remain shrouded in mystery.

It may be that the disability alleged by plaintiff is the result of his dizziness or headaches, but there is no proof, as before stated, to show that it is the result, directly or indirectly, of the head wound received by plaintiff while engaged in the service of defendant company. That proof was. essential to his recovery. ' It may also be stated in connection with the foregoing that it is extremely doubtful, from the expert testimony taken in the case, as a whole, to say, that plaintiff is incapacitated from doing work of any reasonable character on account of the troubles of which he complains. There are several occupations he could follow, the record shows, but, even if not so, plaintiff has failed to establish his demand with legal certainty which justified the rejection of his suit by the trial judge.


author: ELLIOTT, J.

text:
    No. 889
    First Circuit
    LAURENT v. BETHANY
    (December 8, 1931. Opinion and Decree.)
    J. Oliver Bouanchaud, of Baton Rouge, attorney for plaintiff, appellee.
    Moise Thibodeaux, of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

Clay T. Laurent claims of John Bethany $120 on account of hire of service as a baker at the rate of $30 per week.

Bethany denies owing the plaintiff. He alleges that he employed plaintiff as a baker at a salary of $30 per week, with the agreement that the profit of the bakery would be equally divided between them; that he has paid the plaintiff for all the time he was in the bakery in the work of his employment.

Prom a judgment in favor of the plaintiff as prayed for, defendant has appealed.

The plaintiff and the defendant are the only witnesses, and they disagree as to the question of payment.

The plaintiff' admits receiving weekly payments as a baker at $30 per week for several weeks. He imputes the last four payments to the four weeks commencing March 28, 1930, the day on which he first commenced work for defendant. The plaintiff did not work as a baker the first four weeks, but h.e worked, procuring and equipping a building that could be used as a bakery, and obtaining and erecting "therein machinery necessary for the purpose of the business.

The evidence shows that plaintiff has been paid all that is due him while he was employed as a baker; the amount which he claims is for work done before he commenced to bake and operate the bakery.

Defendant testifies that he has paid the plaintiff all that he Owes him.

The evidence shows that defendant paid plaintiff for three days’ work at the rate of $5 a day for services rendered prior to the time plaintiff commenced work as a baker. This fact is testified to by the defendant, and he produced two checks, one for $10 and the other for $5, which he says went to pay plaintiff for the three days’ work, but claims that these three days was. all the time that plaintiff is entitled to be paid for.

The evidence shows that it required about, four weeks in which to get ready to operate the bakery, and during all of that time plaintiff was employed in the work of getting ready. And, according to plaintiff, defendant owes him for his time thus employed in defendant’s behalf, at the rate of $5 per day. The amount paid to the plaintiff for the three days before he commenced to operate the bakery supports plaintiff’s contention that he was to get $5 per day. The burden of proof is • úpon the defendant to show payment.

"We are not satisfied that the court erred in awarding plaintiff the amount claimed, except to the extent of $15 which the defendant testifies that he has paid on said account, and supports his testimony by checks. The plaintiff does not, in his testimony, directly deny getting this amount as wages during the time he claims he was not paid. It is our conclusion that defendant is entitled to credit for the $15, but in all other respects the judgment is correct and must be affirmed.

For these reasons, the judgment appealed from is reduced to $105, and, as thus amended, is affirmed; plaintiff and appellee to pay the cost of appeal; the cost of the lower court to be paid by defendant and appellant.


author: STEPHENS, J.

text:
    No. 3742
    Second Circuit (Second Division)
    GRONER v. SHREVEPORT RYS. CO., INC.
    (December 9, 1931. Opinion and Decree.)
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellee.
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff sues to recover damages in the sum of $260 for personal injury alleged to have been sustained as a result of his having fallen into a ditch that had been dug by the defendant and left unguarded.

The defendant answered denying generally the allegations of plaintiff’s petition and averring that the ditch referred to was on its private property, and that the accident resulted solely from the carelessness and want of care on the part of plaintiff; and in the alternative if it be found guilty of negligence that plaintiff’s negligence bare, recovery.

The judgment of the city court of the city of Shreveport, La., was in favor of the defendant, and the plaintiff prosecutes this appeal.

The defendant company is a common carrier of passengers in the city of Shreveport, La. At a point on Jordan street between Southern avenue and Fairfield avenue, and about 250 feet from the former and 400 feet from the latter, the tracks of the defendant company turn at right angles in a southerly direction and proceed on its private property to Jacobs street, which is. the next street south and parallel to Jordan street. More than six months prior to the accident, the defendant dug the ditch referred to in plaintiff’s petition, under and across its tracks at a point about midway between Jordan street and Jacobs street. The ditch was approximately 12 inches, deep and 18 inches wide, and was constructed for drainage purposes. Pedestrians used the tracks to some extent if they supplied a shorter route to their destinations. There was no express invitation to pedestrians to use the tracks, nor an invitation which might be implied from the conditions existing; nor were there any warning signs that the tracks should not be used by the walking public.

The plaintiff had frequently used the tracks of the defendant at this point as a convenient passageway to walk to his home. He had frequently seen the ditch prior to the accident and was familiar with its proportions. On the day of the accident, shortly after dark, he left a street car operated by the defendant at tbe point where it turned south from Jordan street, made some purchases at a nearby grocery store, and proceeded along the path between the said tracks toward Jacobs street; There was no artificial light near the scene of the accident, and at the time he fell he had the ditch in mind and was looking for it, but failed to see it because of the darkness, in time to avoid the accident and injury.

With this undisputed state of facts before us, we consider it unnecessary to determine whether the plaintiff’s relationship to the defendant was that of licensee or trespasser. If he was a trespasser the defendant owed him no duty other than not to willfully injure him. If he was a licensee, irrespective of the question of defendant’s. negligence, he could not recover because of his own negligence.

The plaintiff knew of the dangerous condition of the passageway which he deliberately chose to use. He may have walked a distance of 250 feet to the corner of Southern avenue and made use of a safe and lighted passageway leading in the same direction and provided for the purpose.

The plaintiff failed to observe ordinary care in choosing an unsafe passageway when a safe and convenient one leading in the same direction was available.

His failure in this respect was negligence which contributed to the resulting accident. See W. B. Pepper v. Southern Bell Telephone & Telegraph Company, Inc., et al., 18 La. App. 257, 137 So. 610, decided by this court November 18, 1931, and cases therein cited.

We are of the opinion that the judgment of the lower court is correct, and it is therefore affirmed.


author: LeBLANC, J.

text:
    No. 888
    First Circuit
    DAIGLE v. COBB
    (December 8, 1931. Opinion and Decree.)

      Francis J. Whitehead, of Port Allen, attorney for plaintiff, appellant.
    Borron, Hebert & Owen, of Plaquemine, attorneys for defendant, appellee.
   LeBLANC, J.

This is a suit for damages to an automobile, arising out of a collision which occurred on the Jefferson highway in the town of Port Allen, parish of West Baton Rouge,- on December 13, 1929.

The plaintiff is the owner of the Chevrolet coupe which was damaged when it was run into by a car belonging to the defendant’s father. Plaintiff’s car was being driven by her grandson, Bland Cleneay, then 15 years old. A companion, A. S. Genre, Jr., then 16 years old, was in the car with him. The defendant herself was driving the other car.

Negligence is charged against the defendant in driving the car she was in at an excessive and unlawful rate of speed, in failing to keep it under control and in driving over to the left-hand side of the road and running into the plaintiff’s car which was on its proper side.

The Jefferson highway at that time followed the levee along the Mississippi river in that part of the town of Port Allen. It ran directly north and south, and was about 25 feet wide with a drainage ditch along each side. Right near where the collision took place, a few feet north, perhaps, a street known as Oregon avenue ran into the highway from the west and stopped at the levee which stood immediately east of the highway. The plaintiff’s car was • traveling north ancj the defendant, south. At a point which, according to a plat agreed upon between the parties and filed in the record, is approximately 60 feet south of the corner at which Oregon avenue joins the highway, young Cleneay and his companion, in passing in front of the home of one of their young friends, Miss Wilma Rommel, waved to her as she stood in her front door facing the highway. It was the waving of his hand by young Cleneay which Mrs. Cobb says she took to be a hand signal, to make a left turn into Oregon avenue that caused her to go to her left of the road in an effort to pass behind the car. As she did so, she. avers in her answer, Cleneay suddenly turned his car to the right and as the two cars were then so near each other, the collision became inevitable. Under the circumstances, she claims there was no negligence on her part and consequently no liability.

The trial judge in a brief written opinion held that the* defendant, confronted with a sudden emergency, exercised her best judgment in her effort to avoid the accident, and that is all that the law requires under such conditions. He accordingly rendered judgment dismissing the plaintiff’s suit, and this appeal was taken.

It seems' to be conceded by both sides that neither car was being driven at an excessive rate of speed and we do not have to dwell at all on that charge of negligence which we find in the plaintiff’s petition. The record shows that Mrs. .Cobb had five children whose ages ranged from two to six, years, with her in the car. She herself is the mother of three. It is not clear wheth er they all, or any of them were, among-those in the car. It is hardly probable, however, that she, a mother and á woman of mature age, would have been talcing a chance at speeding with such a number of small children in the car. There is nothing to indicate either that the two young boys in the other car were driving more than 20 or 25 miles an hour.

Except for the exact position of the plaintiff’s car in relation to the center of the road at the moment young Cleneay waved his hand in salutation to Miss Rommel and immediately following his motion, the facts in the case are not seriously disputed. An attempt is made to draw a distinction between a slight salutation made with the hand and a wave of the hand. We are satisfied from the evidence that whatever it be termed, the motion made by young Cleneay. was of such nature as to justify Mrs. Cobb into reasonably assuming that it indicated the usual signal given by an automobilist before he makes a turn to the left. All the facts and circumstances, as far as she was concerned, pointed that way. From h<er position in her car, over a hundred feet from the other car, where it was next to impossible for her to see Miss Rommel standing in a door-way, and, with a street leading only from young Cleneay’s left-hand side of the road forty or fifty feet distant from where she saw him extend his hand out of his car, it would be most natural for her to believe that he intended to turn to his left into Oregon avenue. Such a signal is almost universally accepted by motorists to indicate their intention of changing their course on the public highways. In the case of Marsh v. Singletary, 7 La. App. 436, this court held that it was a custom so well recognized as to have become the law of the road.

Cleneay and Genre both testify that at the time they waved to Miss Rommel, their car occupied the right or east side of the road. In this they are corroborated by Miss Rommel and also by Professor E. P. Chaudoir, who, coming from the opposite direction, met them just about at this point. They maintain, however, that they continued on the right-hand side of the road until they were about to meet Mrs. Cobb and on observing that she, instead of continuing on her side of the road, veered to the left, Cleneay suddenly swerved his car toward the ditch, when she ran into them. Mrs. Cobb, on the other hand, states positively that the Chevrolet held to the center of the road and on nearing Oregon avenue its front wheels were cut in that direction, thus giving further indication of the driver’s intention to go into that street. Her testimony to the effect that the coupe was in the center of the road is supported by that of Mrs. R. A. Baker, who viewed the accident from a window in her home, which according to the plat offered in evidence, is situated about 180 feet north of Oregon avenue. What we believe happened was that at the moment of passing the Rommel home, or just before, Cleneay had pulled over to the right of the road in order to meet Professor Chaudoir and was coming back to take the center of the road. On realizing how near Mrs. Cobb was to him, he again swerved his car to the right side of the road, but it was then too late. Mrs. Cobb, sensing from all of his actions that his intention was to go into Oregon avenue, went over to her left side of the road to try to pass behind him. They were in such close proximity to each other at this time that neither was able to avert the impending accident.

We are of the opinion that the facts present a case in which is to be applied that rule of law to the effect that an automobile driver who is confronted with a sudden hazard or emergency created by another, will not be held to the exercise of‘ that same presence of mind and calm, deliberate judgment as one who, seeing the danger in time, can take steps to avoid it. It is possible that Mrs. Cobb might have suddenly stopped her car and thus avoided the collision. Conceding that to be so, and that her choice qf action to avert the accident was not the best, it still cannot be said that her act was not that of a person of ordinary prudence placed under the same situation she was, and that being so, she cannot be held guilty of negligence. Martin v. Cazedessus, 15 La. App. 100, 130 So. 129. The evidence is convincing that it was the innocent gesture of young Cleneay in tendering a friendly salutation to Miss Rommel which led Mrs. Cobb to believe that it was a signal of his intention to turn to* his left. Innocent though it was, it constituted such an act qf negligence on his part as to charge him with having created a situation of peril or an emergency in which Mrs. Cobb had to act under impulse. Por the results of her actions under such conditions, she cannot, as already stated, be held responsible. The judgment of the lower court dismissing the plaintiff’s suit against her was correct, an<} it is therefore affirmed.


author: CULPEPPER, J.

text:
    No. 3840
    Second Circuit (Second Division)
    RUSSELL v. PIERCE PETROLEUM CORP. ET AL.
    (December 9, 1931. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellee.
   CULPEPPER, J.

This case is before the court with an incomplete record, in that the testimony has not been brought up. The absence of the testimony is apparently due to the fault of the appellant in failing to pay the court stenographer his fee for taking and transcribing same in the lower court.

Judgment was rendered on July 22, 1930, and signed July 23rd, rejecting plaintiff’s demands. Plaintiff took an order of appeal made returnable to this court on September 8, 1930. On September 9, 1930, the transcript of the record was filed in this court, with certificate attached, signed by A. H. O’Quinn, deputy clerk, setting forth that the record contained “a full true and complete transcript of all papers filed, and testimony adduced on the trial of the case.” It later developed that the certificate was erroneously written.

The case was fixed for hearing in this court for November 16, 1931. On that day appellee filed a motion to dismiss the appeal on the ground that the record was incomplete in that it did not contain a transcript of the testimony. Simultaneously with the filing of the motion, there was also filed and attached to the record a second certificate signed by Mr. A. H. O’Quinn, the deputy clerk who signed the original certifícate, setting forth that he was the court reporter who took the testimony in the trial of the case, and “that I made demand on the counsel for the plaintiff, appellee [should be appellant] to pay the stenographic fee, and same has never been paid, and I forwarded the transcript of appeal to the Honorable Court of Appeal without the transcribed evidence being a part of said record.”

Plaintiff, appellant, has made no appearance by counsel to argue the case or to file brief. He has filed no assignment of errors or statement of facts upon which this court can base an opinion: Nor -has he asked for further time in which to have the testimony brought up.

Construing the last certificate of the deputy clerk as a correction of the first, the two together show an incomplete record, which fact is due to the fault of appellant. Appellant has had more than a year in which to pay for taking and transcribing the testimony.

Due to the. fact that there is no testimony on which to base an opinion, and the further fact that appellant has made no appearance by brief or by counsel, or otherwise, we take it that the appeal has been abandoned, and same is, therefor® dismissed.


author: DREW, J.

text:
    No. 3884
    Second Circuit (Second Division)
    SMITH v. DORRITY ET AL.
    (December 9, 1931. Opinion and Decree.)

      Dixon Carroll and R. A. Fraser, of Many, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff alleged that he was the owner of the NE% of SE% of section 10, township 7 north, range 14 west, situated in Sabine parish, Louisiana. That he acquired the land from H. F. Arnold, February 21, 1930, by deed; that the said Arnold acquired the said land, January 15, 1918, by deed from R. L. Gay and T. Laroux, and Gay and Laroux acquired it by purchase at tax adjudication, dated June 24, 1914; that the said property was sold as the property of H. F. Arnold at tax sale, when in fact the'true owners at the time of the tax sale were Brown M. Dorrity and Jack B. Craig by direct line of mesne conveyances from the United States government. He further alleged that more than three years have elapsed since the date of the registry of the above referred to tax title in the conveyance- office of Sabine parish, Louisiana, and that he is -the owner of said property and desires and is entitled to have the title thereto confirmed and quieted, according to law.

Plaintiff further allege^ that defendants, soon after the tax salé, relinquished possession and have not had possession of the land since that time. He prays that his title be confirmed and' quieted, and that he be recognized as the only owner thereof, enjoining and prohibiting the defendants herein from claiming or setting up any right, title or interest to said property.

Defendants, in answer, deny the ownership of plaintiff and deny that he purchased said property from H. F. Arnold. They admit the purchase by Arnold from Gay and Laroux, and allege that it inured to the benefit of defendants. They admit the purchase at tax sale by Gay and La-roux, and allege they were merely parties interposed by H. F. Arnold and his agents in purchasing said property, which was sold in the name of H. F. Arnold. They admit that B. M. Dorrity and Jack B. Craig were the owners of the property at the time of the tax sale. They deny the right of plaintiff tq be quieted in title, and further allege that they purchased the property from H. F. Arnold by deed, May 12, 1913, and that Arnold had no title to convey plaintiff, as title had always been in defendants; and that no one has been in possession of the land, which is wild and unimproved, and no one has exercised ownership over it. That plaintiff has no interest or right in said property and cannot bring this action against defendants; prays that the demands of plaintiff be rejected. '

The following citation and summons were served on both defendants. ’

“CITATION
L. C. Smith No. 10420
vs. • 11th Judicial District Court,
Brown M. Dorrity Sabine Parish,
Louisiana.
“To: Brow.n M. Dorrity, of Caddo Parish, Louisiana,
“YOU ARE HEREBY CITED AND SUMMONED TO COMPLY WITH THE DEMAND contained in the petition, of which a copy accompanies this citation or deliver your answer to the same, in the office of the Clerk of the Eleventh Judicial District Court, in and for Sabine Parish, Louisiana, within ten days after service hereof, with one (1) day additional for every ten miles distance between your residence and the office of said Clerk provided, however, that the delay shall in no case exceed fifteen (15) days from date hereof.
“And you are hereby notified that the title to the following described property, situated in Sabine Parish, Louisiana, to-wit:
NE'14 of SE% of Section 10, Township 7 North, Range 14 West, containing 40 acres, more or less, together with all buildings and improvements thereon,—
will be confirmed and quieted unless a proceeding to annul the said title is instituted within ten days from the date of service of petition and citation herein.
“WITNESS, the Honorables, Hal A. Burgess and John B. Hill, Judges of said Court, at Many, Louisiana, this the 18th day of March, 1930.
“W. E. CURTIS, Clerk, 11th Judicial District Court, Sabine Parish, Louisiana.”

The lower court rendered judgment in favor of plaintiff, as prayed for, and defendants have appealed.

The only evidence offered on trial of the case below was the deed from Arnold to plaintiff, of date February 1, 1930, filed for record February 24, 1930; deed from R. L. Gay and T. Laroux to H. F. Arnold, dated January 15, 1918, recorded February 16, 1918; and the deed from the sheriff and tax collector of Sabine parish, Louisiana, to R. L. Gay and T. Laroux, dated June 27, 1914, and filed for record on July 1, 1914, recorded July 9, 1914, and an extract from the assessment rolls of Sabine parish, Louisiana, covering the assessment of the property in controversy from 1915 to 1929, inclusive (this extract is not in the record) ; all of which were offered by plaintiff.

Defendants offered the deed from H. F. Arnold to defendants, dated May 12, 1913, and recorded June 28, 1913.

Upon the above offerings and an admission of the value sufficient to. give this court jurisdiction, the case was tried. The minutes of the court Show an exception of no cause of action, which was tried and overruled, but wq find no such exception in the record and it is not urged in this court by appellants.

The deeds filed in evidence show that up to June 28, 1913, this property was on record in the name of H. F. Arnold, and therefore properly assessed to him for the year 1913. However, before the taxes became delinquent, he had transferred it to the defendants herein. The tax deed from the sheriff of Sabine parish, Louisiana, shows that the property was sold in the name of H. F. Arnold for delinquent taxes for the year 1913, the sale taking place on June 27, 1914. No question as to the regularity of the tax sale is raised. The sheriff’s deed recites that all formalities were complied with; therefore, it is to be presumed they were. It' is' a ptima facie title.

Since no proof is offered to show otherwise, Gay and Laroux stand before the court as bona fide purchasers at the tax sale, leaving the only remaining question raised under the pleadings: Did the purchase from Gay and Laroux by Arnold, , more than three years after they purchased I the property at tax sale inure to the benefit of defendants, who had more than four years before purchased the property from Arnold?

This suit is brought under Act No. 101 of 1898, as amended by Act No. 144 of 1928, and it is plain, that when the tax purchaser, or his vendee, avails himself of this proceeding, under Section 3 of the Act, he does not place at _ issue the validity vel non of his tax title, but simply invites an assault thereon, and it is equally clear that if no action to annul be brought within ten days, the only judgment the court is authorized to render is one quieting and confirming the title by rendering judgment against the former owner, forever barring and prohibiting him from assailing the tax deed, for the sole reason that he has not brought his action to annul within the ten days allowed therefor. Fellman v. Kay et al., 147 La. 953, 86 So. 406.

The attack invited on the tax deed may be by reconventional demand or separate action. In this case, the defendants have not attacked the tax deed by either reconvening or by separate suit, and the judgment of the lower court confirming the said tax sale and quieting th.e title is correct.

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


author: TALIAFERRO, J.

text:
    No. 3904
    Second Circuit (Second Division)
    FREY ET AL. v. TURNER
    (December 9, 1931. Opinion and Decree.)
    A. S. Drew, of Minden, attorney for plaintiffs, appellees.
    Watkins & Watkins, of Minden, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff, Mrs. Emma I. Frey, authorized by her husband, brought this suit to recover from" defendant the sum of $450 with 7 per cent per annum interest from June 1, 1928, until paid. She alleges that she contracted with defendant to rent a house and lot in the city of Minden for a stipulated rental period with the option of paying the sum of $600 cash on price thereof and placing the property in the building and loan association on or before June 1, 1928, and by that means paying for same; all of which she alleges appears from written contract between herself and defendant, attached to her petition. That she paid to defendant $450 contemporaneous with signing of said contract, hoping to be able to raise the additional $150 prior to June 1, 1928, in order to make the initial payment of $600 on the price of the property, as agreed, but when said date arrived she was unable to supplement her first payment with said additional amount and requested defendant to refund to her the $450 paid to him on the contract and that he agreed and promised to do. so, but stated he could not 'at that time, being hard pressed for money, and desired to borrow the amount from her at interest at the rate of 7 per cent per annum, to which she assented; that on numerous occasions she demanded payment of said amount from the defendant, and each time he pleaded inability to do so, admitting, however, that he owed it.

The contract attached and referred to in the petition is as follows:

“Minden, La. 12/13/1927.
“Rec’d from Mrs. J. R. Frey $450.00 to be applied to purchase price of house and lot on College St., located at corner of College & Pearl Sts. on Cameron lot. Mrs. J. R. Frey agrees to pay to Bobby Turner as rent on house and lot $46.00, Forty Six Dollars, per month until she can meet the full payment of ($600.00 cash) Six hundred Dollars cash and take up (20) twenty shares of Minden Building & Loan stock of June Series, 1927. The full price of house and lot is $4600.00, Forty-six Hundred Dollars.”

Defendant admits the execution of said written contract, but does not construe it as does plaintiff. He admits receiving the $450 on the purchase price of the property, but denies that he ever consented to refund it to plaintiff, averring that he often demanded compliance by plaintiff with the terms of the contract. He prays for judgment ordering plaintiff to specifically perform said contract, and in the alternative for damages arising from her failure to comply therewith.

There was judgment for 'plaintiff as prayed for and defendant appealed.

As appears in the written contract, and from the evidence, plaintiff agreed to purchase the property described therein for $4,600, and actually paid $450 at time of its execution. She agreed further to take twenty shares of the stock of the Minden Building & Loan Association, June series, 1927, in connection with the sale and to pay $46 rental monthly for the property until she could meet the full cash payment of $600; or, in other words, until she could pay the additional $150 on the price.

The record further discloses that at some later date Mrs. Frey found that she would be unable to raise the additional payment of $150 to enable her to make the total cash payment of $600, and that she then visited the defendant and advised him of her inability to raise the amount, and would, therefore, be unable to carry out the original agreement to buy, and thereupon requested the refund and re-payment of the sum of $450, which amount had, theretofore, been paid by her to the defendant.

Up to this point it would seem that the parties to this litigation are substantially agreed.

It is contended by the plaintiff in her petition and in her testimony, her testimony being corroborated by that of her husband and daughter, that when she visited the defendant to advise him of her inability to complete the purchase of the house and lot, and requested the re-payment to her of the said sum of $450, deposited as aforesaid, that the defendant did not demand that the plaintiff specifically perform, as provided by the original contract, but agreed to repay the money at a later time; that he was at that time unable to make the repayment and further promised to pay interest on the money at the same rate of interest paid by the building and loan association, which, according to the record, was 7 per cent per annum." This is only partially denied by the defendant himself, he contending that this was to be done “under certain conditions.” We quote the following from the defendant’s testimony in this record:

“Q. Mr. Turner, you • are the defendant in this case, are" you not? The same Bobby Turner?
“A. Yes, sir. 1
“Q. You have collected rent on this house that Mrs. Frey 3s living in at the present time?
“A. Yes.
“Q. She pays you rent every month?
“A. Yes, very nicely.
“Q. She is a very satisfactory tenant?
“A. Yes.
“Q. Have you made improvements on that place down there?
“A. Some, yes.
“Q. When did you make those improvements, Mr. Turner?
“A. I believe I papered the bathroom and this winter when the pipe froze I put some rock around it.
“Q. In other words, you have exercised every right to ownership of that property, have you not?
“A. Well, I had to. It was assessed to me, I never had gotten rid of the title. I had to.
“Q. You received four hundred fifty dollars from Mrs. Emma I. Frey, did you not?
“A. Yes, sir.
“Q. Do you remember in June, 1928, when Mrs. Frey came in your office with her daughter, Miss Dorothy?
“A. I reckon, she did. I don’t recollect any details specially about the occasion. She certainly came in there. I am quite sure she did.
“Q. You heard her testimony on the stand, did you not?
“A. Yes.
“Q. Did you tell her you would pay that money back and give her the same rate of interest as paid by the building and loan?
“A. Under certain conditions.
“Q. Under certain conditions?
“A. Yes.
“Q. But you did tell her that?
“A. On "conditions, yes.
“Q. Let us get that straight. You told her that you would pay her the money back?
‡ s{e *
“Q. You admit, Mr. Turner, that you agreed with Mrs. Frey to pay her the four hundred fifty dollars and to pay interest at the rate of 7 per cent, the same rate of interest as paid by the building and loan?
“A. According to the conditions.
“Q. You had repeated conversations with Mr. Frey later on. about that?
“A. He approached ■ me a time or two about it.
“Q. You do not deny that you told his wife that?
“A. No, sir; I did not at all.”

It cannot be successfully urged by the" defendant that the payment of $450 was put up as earnest 'money in the transaction to bind the deal, for the reason that the defendant in testifying says as follows:

“Q. It was not put up as earnest money in the transaction to bind the deal?
“A. No, sir; it was put up as payment on the place.
“Q. To be applied in the future, was it not?
“A. Well, you could call it applied whenever the deed was made. t
“Q. It was not to be applied on the purchase price until the deed was made?
“A. (No answer.)
“Q. Answer the question.
“A. I cannot answer it. I don’t know. It is up to the ruling of the court when it was to be applied.
“Q. But you did get the four hundred fifty dollars from Mrs. Prey?
“A. And gave her a receipt for it.
“Q. This money has not been repaid?
“A. It has not been repaid.”

However, it is contended by the defendant that the certain conditions under which he would repay to the plaintiff the amount deposited with him were that the plaintiff was to produce a purchaser of the property at the price stipulated in the original contract. We may say that this evidence on the part of the defendant is not corroborated in any way by any other witness, but is denied by the plaintiff, her husband and daughter.

The trial judge in his decision in this case says as follows:

“According to all of the testimony Mrs. Prey has been occupying the house since December, 1927, or a total of 26 months at the time this suit was filed. She had paid the rent of $40.00 a month promptly. Turner had paid the taxes, insurance and repairs on the property and had mortgaged it to the Building & Loan Association. Thus far the parties are agreed. Mrs. Prey, her husband J. R. Prey and her daughter. Dorothy, all testify that defendant agreed to the abrogation of the agreement to purchase, and to repay the $450.00 deposited, with 7% interest. Defendant denies this, and says it was to be returned only on condition that plaintiff found a purchaser for the property at $4600,00.
“Undoubtedly, defendant could have sued for a specific performance of the contract, and he has the right to ask for it now in reconvention, but the question is whether the new agreement was made. In arriving at a decision in this or any other case I must be guided by the testimony, but I have the right to weigh the testimony in the light of experience. It was evidently the intention of the parties to close up the trade soon after the contract was made, because the Building & Loan stock was to be paid back to June, 1927, when the last series of stock had been opened for subscription. If the defendant expected to exact a specific performance it seems that he should have sought that remedy earlier. The fact that he did not do so is a circumstance in favor of the plaintiffs. In addition to this, the preponderance of the testimony is with the plaintiffs. Mr. and Mrs. Prey and their daughter all testified that there was a new agreement on Turner’s part to repay the $450.00 with interest. Opposed to this is the testimony of Turner himself, that it was conditioned on Mrs. Prey finding another purchaser for the property at $4600.00.
“If the question was that of rescission of a sale the case of Emmerling v. Beebe, 15 La. 251, would be applicable. Also Piper et al. v. Gray, 2 La. App. 315, where the above case is cited, but we are not here dealing with a sale, but a promise or agreement to sell. Art. 2462, C. C., as amended, says that a promise to sell so far amounts to a sale as to give either party the right to enforce specific performance. But ‘defendant made no effort to enforce performance until this suit was filed. On the other hand he continued to collect rent- at $40.00 a month, and apparently abandoned the 'contract to sell. He has had the rent paid promptly, amounting to more than 10% gross on the price of $4600.00, and depreciation, taxes and repairs ought to be taken care of out of the rent and leave a reasonable net return on the investment.
“I think the plaintiffs have met the burden on them to make out their case by a preponderance of the testimony, and finding nothing in the law that, in my opinion, cuts them off from recovery, there will be judgment in their favor for the amount sued for with 7% per annum interest.”

A close study and examination of the record in this case fails to convince us that the trial judge has erred in his findings, as above quoted, but, on the contrary, we are convinced of the correctness of the conclusions reached by him. However, we shall have to amend this judgment by reducing the rate of interest from 7 per cent tq 5 per cent, as there is no written evidence in the record establishing agreement by defendant to pay 7 per cent. Testimonial proof is not admissible to establish the promise to pay conventional interest, and, if admitted without objection, should not be considered.

Civil Code, art. 2924; McLaughlin, Davis & Co. v. P. Sauve, 13 La. Ann. 99.

For the reasons assigned, the judgment appealed from is amended by reducing the rate of interest thereon from 7 per centum per annum to 5 per centum per annum and as thus amended, it is affirmed.

DREW. X, recused.


text:
    No. 3865
    Second Circuit (Second Division)
    ROBBINS v. MARTIN ET AL.
    (December 9, 1931. Opinion and Decree.)
    Drew & Richardson, of Minden, attorneys for plaintiff, appellant.
    R. L. Benoit, of Shreveport, and R. F. Langston, of Minden, attorneys for defendants, appellees.
   STEPHENS, J.

Plaintiff sues to annul and have canceled from the conveyance records, certain instruments transferring mineral rights on the grounds of fraud and misrepresentation, and in the alternative, if the transactions be determined to be not fraudulent, he seeks avoidance of the sales for failure of the consideration of the original contract in which he was the vendor.

The defendants E. G. Martin and James J. McClelland filed pleas of estoppel in bar of plaintiff’s, suit. The district court overruled the plea of Martin, but sustained the plea of McClelland and dismissed the suit in so far as it was against him. The plaintiff prosecutes this appeal from that judgment.

The following facts were developed on the trial of the pleas of estoppel:

The plaintiff acquired the fee-simple title to the property, an interest in which is in dispute, by deeds from G. "W. Coyle and the Bank of Cotton Valley, in th'e years 1922 and 1923, respectively. Thereafter, he leased said land for the production of oil and gas therefrom, reserving the customary one-eighth royalty, and then executed mineral deeds in the years 1923 and 1924 to B. H. Vaughn, for a one-half mineral interest; to B. H. Vaughn for a one-quarter mineral" interest; to J. S. Belcher for a one-eighth mineral interest, and to J. S. Belcher for a one-sixteenth mineral interest, leaving to plaintiff, on March 29, 1926, a one-sixteenth mineral interest subject to the lease or the interest popularly designated as a one-one-twenty-eighth royalty interest. He then executed to defendant Martin a mineral deed conveying “an undivided one-half of all the oil, gas and other minerals, nów owned by me” (subject to the lease), or a one- . thirty-second mineral interest, subject to the lease, or the interest popularly designated as a one-two-hundred-fifty-sixth royalty interest, leaving plaintiff the owner of a fractional interest equal to the interest conveyed to Martin. Mineral deed? from Martin to Coyle and from Coyle to Worley and from Worley to McClelland followed, all conveying the same mineral interest acquired by Martin from Robbins; the deed from Worley to McClelland being dated April 23, 1928.

On March 19, 1926, the defendant Mc-Clelland had acquired a three-two-hundred-fifty-sixth royalty interest in this same property under a different chain of title. Oil was discovered on the land about April, 1926.

The Standard Oil Company of Louisiana purchased the oil from the tract beginning April, 1926, and ending December 24, 1926. In response to a request from said company, the mineral owners executed a “division order” and it was signed by plaintiff on April 1, 1926. This order was in the form of an agreement in writing authorizing connections to be made and the oil to be run and designating the extent of the ownership of the several mineral owners and providing for payment for oil to be made in accordance with the division of ownership shown therein. The plaintiff specifically agreed and acknowledged that he was the owner of the one-two-hundred-fifty-sixth royalty interest left to him after the execution of all mineral deeds by him, including the deed from him to Martin which he now seeks to set aside; and that the defendant McClelland was the owner of the three-two-hundred-fifty-sixth royalty interest previously acquired by him and above referred to through another chain of title; and that the defendant Martin wac the owner of the one-two-hundred-fifty-sixth royalty interest conveyed to him by the deed which he (the plaintiff herein) now seeks to set aside. The pipe line company, pursuant to said division order, purchased the oil produced from the property through December 24, 1926, and during that time remitted to plaintiff by check, monthly, for his proportionate part of the oil, and each royalty check paid to plaintiff was accepted by him and was accompanied by a production statement showing the interest owned by each royalty owner, and the barrels of oil and the value thereof credited to each owner, which statements, showed that defendant Martin owned the one-two-hundred-fifty-sixth royalty interest which he had purchased from plaintiff and stated that plaintiff owned only the interest left to him after the sale to Martin, i. e., a one-two-hundred-fifty-si’xth royalty interest. The plaintiff, during this ten months’ period, received such, checks and statements, and accepted same without any protest or complaint, or without asserting any invalidity in the mineral deed which he now seeks to set aside, and during this same time statements identical in form and contents accompanying royalty checks were sent by the pipe line company to the defendant McClelland by virtue of his royalty ownership under the previous, purchase.

The Standard Oil Company of Louisiana disconnected from this property about December 29, 1926, and thereafter the Magnolia Petroleum Company began purchasing the oil. A similar division order was signed by plaintiff for the same purpose, and with the same acknowledgment, setting forth the same division of ownership. The Magnolia Petroleum Company, pursuant to-this division order, purchased the oil from this land from about the date above set forth up to the time of the trial of this plea, and during that period remitted to the plaintiff by check semi-monthly for the value of his one-two-hundred-fifty-sixth royalty interest. These checks were also accepted by plaintiff and each check was accompanied by a statement showing that plaintiff was the owner of and was receiving payments for only the one-two-hundred-fifty-sixth royalty interest left to him after the deed to Martin.

The mineral deeds which the plaintiff is seeking to set aside are those above referred to, affecting the northeast quarter of southwest quarter, section 21, township 21 north, range 10 west, of Webster parish, La., from him -to the defendant E. G. Martin, dated March 29, 1926; from Martin to the defendant R. M. Coyle dated March 10, 1927; from Coyle to the defendant P. C. Worley dated April 12, 1928; and from Worley to the defendant McClelland dated April 23, 1928. The plaintiff alleges as a basis for his action to set asicfe the conveyances, fraud, duress, misrepresentation, and in the alternative that the agreed consideration in the first of these transactions was not paid and performed, and that the defendants subsequently purchasing had full knowledge of the said failure of the consideration.

The deed from the plaintiff te the defendant Martin contains the following stipulation :

“This sale and transfer is made for the consideration of the sum of Twenty-five Dollars, and the further consideration that the vendee herein shall pay for an abstract covering the said land, to be obtained from the Webster Abstract Company, and the further consideration of employing necessary counsel to file such suit or suits as may be deemed necessary to perfect title in this vendor, and to look after vendor’s interest in the said property.”

It is the non-fulfillment of the agreements of the foregoing stipulation which plaintiff here asserts- as the basis of his alternative demand.

The plea of estoppel of the defendant McClelland is predicated upon the contention that this plaintiff,- Robbins, subsequent to the execution of the mineral deed to Martin, signed the two “division orders” wherein it was agreed, declared, certified, and guaranteed by the plaintiff that Martin was the legal owner of the mineral interest plaintiff now seeks to annul, and that plaintiff was the legal owner of only the interest lef-t to him after the sale to Martin, and that over a period of approximately four years after the sale to Martin plaintiff had received and accepted royalty checks, without protest, in payment for the interest left to him after the sale to Martin, and which checks were accompanied by statements showing Martin’s-ownership of the interest plaintiff now seeks to annul, and showing that Martin (and later Martin’s successor in interest) was receiving payments for oil runs to the credit of the interest plaintiff now seeks to annul, and showing that plaintiff was. receiving payment for only the interest left to him after the sale to Martin; that defendant McClelland, in purchasing from defendant' Worley the interest now in dispute for a cash consideration of $1,200, relied upon and was induced to make the purchase by the foregoing facts, and that plaintiff is now barred and estopped, as against the defendant McClelland, from contesting the validity of a conveyance which he has. affirmatively, in writing, and by his actions, conduct and acquiescence acknowledged to be valid and which he had accepted and ratified; that plaintiff is barred and estopped from now asserting, as against defendant McClelland, that the agreements of Martin as set out in the deed to Martin have not been fulfilled because plaintiff by his signed, written agreements and declarations, and by his conduct, has acknowledged that said agreements on the part of Martin have been fulfilled, and that plaintiff Robbins is estopped and barred from now' claiming, as against defendant McClelland, a greater interest in the property in question than the interest which he agreed and declared 'himself to be the owner of by signing the written contracts or “division orders,” defendant McClelland having, in the meantime, acted in reliance upon such written agreements and declarations of plaintiff.

The mineral deeds attacked were duly recorded in the conveyance records of Webster parish, and an examination of said records by the defendant 'McClelland would have disclosed the peculiar and unusual stipulated consideration written into the first of those instruments. McClellandfrankly testified that he would not have made the purchase if he had known of the condition in the deed.

The plaintiff rests his defense to the plea of estoppel solely upon the opinion in Brown v. Parish, 1 La. App. 246.

In our judgment there is but slight analogy between the case relied on by plaintiff and the instant case, either as to the facts or the legal doctrines, presented for discussion. We -have carefully read and considered the able opinion in Brown v. Parish. The writer of this opinion' tried and decided that case in the “district court, and is for that reason more than ordinarily familiar with the issues of fact and law involved therein. • '

In Brown v. Parish, the circumstance, and the only circumstance, which was attempted to be set up as. an estoppel against the right, .of the plaintiff to cancel the lease, was .that plaintiff had stated verbally that the lease involved was a five-year lease; but it will be noted that plaintiff made no statement as to whether or not the lease was subject to the requirement of being renewed each year, or as to whether or not the renewal requirement had been complied with, and the court. observed that “we usually refer to leases- of the tenor of this one as ‘five-year leases,’ ” and the court further observed that “'the only reasonable construction to' be placed on his remarks is that the lessee had a five-year lease if he chose to exercise his option to make it such.”

In the instant case the plaintiff entered into two written contracts and. agreements, specifically agreeing and acknowledging .that -the signers of those .written agreements were the owners. of the property therein described, in the proportions therein set out; that is. to say, plaintiff contracted in writing with reference to the interest here involved, as he had the right to do, and by that written contract expressly and specifically represented and agreed that his interest in the property was only the interest left to him after the sale to Martin, and by that written contract he also expressly represented and agreed that Martin was. the owner of the interest which plaintiff now seeks to set aside.

The. pertinent provisions of the first “division order’’ which plaintiff signed are as follows:

“To The Standard Oil Company of Louisiana:
“We, the undersigned, and each of us, hereby declare and agree that we are the owners, in the proportions set out below, of all the oil produced from the Alabama Petroleum Co. Robbins ‘B’ Farm situated in NE14 of SW1/! Section 21, Two. 21, Rng. 10, Webster Parish, Louisiana.
“We hereby authorize you to run said oil, and until further notice you will pay for all oil taken from said property as follows:
“Statement of Ownership and Order of Division.
“Charley Robbins, 1/256 R. I.
“E. G. Martin, 1/256 R. I.
“This agreement and division order .shall become valid and binding on each and every owner above named as soon as signed by him or her, regardless of whether or not any of the other above named owners have so signed.”

The pertinent provisions of the second division order which plaintiff signed are as follows:

“To Magnolia Petroleum Company:
"The undersigned certify and guarantee that they are. the legal owners of wells numbered one and up,, on the Magnolia Petroleum Company Robbins ‘B’ Farm, more particularly .described as the NE^ of SWM of Section 21, Twp. 21 N. Rng. 10 West, Webster Parish, Louisiana, and until further notice you are hereby authorized to receive oil therefrom, giving credit as directed below:
Credit To Division of Interest
Charley Robbins 3/768 R. 1.
E. G. Martin 3/768 R. I.”

In Brown v. Parish, the court stated that the character of the estoppel considered was equitable estoppel or estoppel “in pais,” and the decision is predicated upon, and quotes with approval, the text from 16 Cyc. p. 738; whereas, we find from a further- inspection of that same work (now Corpus Juris, vol. 21), on page 1110, under the heading “Estoppel by Simple Contract,” the following:

“There are two sorts of what is termed ‘Estoppel by Contract,’ namely, (1) estoppel to deny the truth of facts agreed upon and settled by force of entering into the contract, and (2) estoppel arising from acts done under or in performance of the contract. The first form of estoppel, if the contract is in writing, is analogous to certain phases of estoppel by deed, and is not in strict propriety a species, of estoppel in pais, since it is wholly based on a written instrument.”

And further in this connection, on page 1111 of the same work:

“If in making a contract the parties agree upon or assume the existence of a particular fact as the basis of their negotiations, they are estopped to deny the fact so long as the contract stands in the absence of fraud, accident or mistake.”

In support of the text the following is cited:

“Estoppel by contract” is • a term which is intended to embrace all cases in which there is an actual or virtual undertaking to treat a fact as settled, as- for example, a contract based upon one’s having asserted title to property will estop the parties, in the performance of the contract, -from claiming a different title. Bigelow, Estoppel, (5th Ed.) page 450, quoting Bricker v. Stroud, 56 Mo. App. 183, 188.

In Brown v. Parish, the following is quoted from 16 Cyc. (now Corpus Juris, vol. 21) p. 738:

“As a corollary to the proposition that the party setting, up an estoppel must have acted in reliance upon the conduct and representations of the party sought to be es-topped, it is as a general rule essential that the former should not only have been destitute of knowledge of the real facts as to the matter in controversy, but should also have been without convenient or ready means, of acquiring such knowledge.
“A public record is an available means of information as to questions of title, and one who does not take advantage of it can not claim an estoppel against one who merely fails to furnish such information.”

In 21 Corpus Juris, p. 1131, a further reading of that text discloses:

“There are, however, cases in which the representations by actively misleading the person setting up the estoppel and preventing him from having recourse to. available means of information has been held to excuse his failure to inform himself of the facts even in the case of constructive notice by matter of record.”

In support of the above text is quoted the following:

“The law distinguishes between silence and encouragement and while silence may be innocent and lawful, to encourage and mislead another into expenditures- on a bad or doubtful title would be a positive fraud that should bar and estop the party, the author of .that encouragement and deception, from disturbing the title of the person whom he misled, by any claim of title in himself.” Knouff v. Thompson, 16 Pa. 357.

Also quoting:

“ ‘The very statement of the rule (that mere silence will not estop where information as to title is available by public record) shows that the fact that the title is of record is no justification for an act which does mislead the other party.’ Olden v. Hendrick, 100 Mo. 533, 13 S. W. 821.”

It is the contention of the plaintiff that the ¡defendant McClelJand was legally chargeable with notice of the conditions, imposed in the deed from plaintiff to Martin, by virtue of that deed being a matter of public record at the time of his purchase; and that the defendant McClelland was negligent in not learning the nature of the unusual conditions recited in the deed. But is not plaintiff, as a consequence of his affirmative written representations and agreements signed by him after the execution of the deed stipulating those conditions, acknowledging that Martin was the owner of the interest in question, es-topped to assert that Martin did not comply with those conditions after- McClelland, a third purchaser, had relied upon and been influenced by said written representations and agreements?

In the case of Headley v. Hoopengarner et al., 60 W. Va. 626, 55 S. E. 744, 749, the Supreme Court of West Virginia, in discussing the specific question here under consideration, quoted as authority for sustaining a plea of estoppel against one claiming a greater interest than agreed on in a division order, the following from 2 Pomeroy’s Equity -Jurisprudence, sec. 810:

“It has been said that, in alleged cases of estoppel -by conduct affecting the title to land, the record of the real title would furnish a means by which the other party might ascertain the truth, so that he could not claim to be misled, and could not insist upon the estoppel. This conclusion * * * if correct at all, is correct only within very narrow limits, and must be applied with the greatest caution. It must be strictly confined to cases where the conduct creating the estoppel is mere silence. If the real owner resorts to any affirmative acts or words or makes any representations, it would be in the highest degree inequitable to permit him to say that the other party who had relied upon his conduct, and been misled thereby might have ascertained the falsity of his representations.’’

The court further stated, citing Bigelow, Estoppel (5th Ed.) p. 460:

“The estoppel in this class of cases is fixed by .the execution of the contract. Nothing further need be shown, where the fact in question is clearly agreed or assumed.”

The courts of last resort in this state have not passed on the specific question here presented, but the courts of other and older oil-producing states have considered and disposed of the proposition. In Headley v. Hoopengarner et al., supra, it was held that one who signs a “division order’’ fixing and defining his interest in the oil produced and directing the delivery by the pipe line company to him of payment of that interest, as his portion, will be estopped to claim more than that interest against parties to the “division order” and their assignees.

The courts of last resort of the states of Montana and Oklahoma have held to the same effect; that is, that the signers of a “division order” with respect to each other are estopped by its. provisions. Corey v. Sunburst Oil & Gas Co., 72 Mont. 383, 233 P. 909; Texas Company v. Pettit (Okl.) 220 P. 956.

These well-considered cases are highly persuasive of their correctness and have led us to the conclusion that the plea of estoppel herein urged is well founded.

While the specific question here presented has not been considered and answered by the courts of last resort of this state, there are many able opinions of those courts in which the general • principles which govern the disposition of the question have been applied. We quote the following:

“Where one by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” Marsh v. Smith, 5 Rob. 523; McMasters v. Atchafalaya Railroad & Banking Co., 1 La. Ann. 11; Blanchard v. Allain, 5 La. Ann. 367, 52 Am. Dec. 594; Jacobs v. Butler, 6 La. Ann. 274; Rogers v. Chandler, 6 La. Ann. 349; Burbank v. Haas, 9 La. Ann. 528; Gottschalk v. De Santos, 12 La. Ann. 473.
“One who has put another in a position in which he should not have been put is estopped from recalling the transfer, to the prejudice of third persons.” Mendelsohn v. Blaise, 52 La. Ann. 1104, 27 So. 707.
“Mr. Barker, after having recognized the title of the children of his wife to the entirety of the property, by appraising it as belonging in its, entirety to them, and signing the inventory of it as such, could not be allowed, as against third persons, purchasers from these heirs, to contest the title of these heirs. Gayoso v. Delaroderie, 9 La. Ann. 280.” Henderson Iron Works & Supply Company v. Highouse, 141 La. 803, 75 So. 729, 730.
“Where parties to a sale have acted for a number of years as if the sale had transferred real rights, they will be estopped from denying such sale.” Chatman v. Bundy, 130 La. 158, 57 So. 786.

It is our opinion that the plaintiff, by executing the two “division orders,” or written agreements, acknowledging and declaring himself to be the owner of only the one-two-hundred-fifty-sixth royalty interest left to him after the sale to Martin and acknowledging Martin to be the leghl owner of the one-two-hundred-fifty-sixth royalty interest which Robbins -now seeks to set aside; and by accepting, for a continuous period of almost four years, monthly and semi-monthly royalty payments, made by check sent to him in payment of only -the interest left to him after the sale to Martin, and which checks were accompanied by statements some of which showing not only his (Robbins’) interest as only a one-two-hundred-fifty-sixth royalty interest, but also showing Martin to be the owner of the one-two-hundred-fifty-sixth royalty interest he now attacks, and that Martin was receiving payment for that interest, and others showing that Robbins owned and was being paid for only the one-two-hundred-fifty-sixth royalty .interest left to him after the deed to Martin, and by his failure to complain or make any protest as to the interest credited to him during all of that time — is estopped from assuming and cannot now maintain a position inconsistent with his said representations and conduct to the detriment and prejudice of the defendant McClelland who had purchased the interest in good faith in reliance thereon.

We are further of the opinion that the plaintiff is, without legal justification in asserting that it was the duty of the defendant McClelland to refer to the public records to ascertain the incorrectness of the affirmative representations and declarations set forth in the division orders.

For which reasons we think the judgment of, the district court sustaining the plea of estoppel of the defendant McClelland and dismissing plaintiff’s action at his costs is correct, and it is affirmed.

DREW, X, recused.


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    No. 3907
    Second Circuit (Second Division)
    BOANNO v. COOPER
    (December 9, 1931. Opinion and Decree.)
    M. T. Monsour, of Shreveport, attorney for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

Plaintiff sues to'recover approximately 27.5 feet of block A, T. A. L. 35, of the city of Shreveport, La., alleging, that the defendant claims and possesses, said property without right or title thereto. The defense is title by prescriptive possession under article 852 of the Civil Code, and prescription of ten and thirty years’ acquirendi causa.

The district court rejected plaintiff’s demands, from which judgment he prosecutes this appeal.

The suit arises out of an error in the original survey and plat of said T. A. L. 35. This subdivision was laid out by Leavenworth, surveyor, June 10, 1869, as shown by plat thereof, duly filed and recorded in the conveyance records of Caddo parish, La. A recent survey of the property by H. E. Barnes, city engineer, disclosed an error of 27.5 feet in Mr. Leavenworth’s survey; lot 32 of the original survey encroaching to that extent upon lot 33, as shown by the recent survey.

Plaintiff is the owner of lot 33 and defendant of lot 32 of the subdivision; Collie Houston being their common author in title, through whose last will and testament the property was acquired by defendant and plaintiff’s vendors. Collie Houston acquired the property from Mrs. Cintha. H. Weaver, his mother, on June 12, 1909. Mrs. Cintha H. Weaver acquired lot 32 on June 23, 1888, from the succession of Fred Klump, and lot 33 on June 5, 1889, from Collie H. Glass.

Lots 32 and 33 were both possessed un-> der inclosures by Mrs. Cintha H. Weaver and Collie Houston, her son, continuously from 1888 to the latter’s death on June 8, 1919; the possession being in accordance with the Leavenworth survey. After Collie Houston’s death, the defendant and Belle Lowery, his legatees, took possession of the property in accordance with the Leavenworth survey and the occupational lines long theretofore established. The two lots were by them divided by .a center line, as. provided by the will, Belle Lowery receiving and taking possession of lot 33 and the defendant lot 32. Both lots were thus .possessed by their respective owners in accordance with the occupational lines under the Leavenworth survey until the death of Belle Lowery in 1928. On May 10, 1928, Grace Williams and Sophie Boatner, heirs of Belle Lowery, sold lot 33 to Peter W. Woodruff, who, on February 18, 1929, sold it to Fred Boanno, plaintiff herein.

Thus, it was established that Doth lots 32 and 33 were possessed by the respective owners thereof, including plaintiff, under visible bounds and occupational lines established in accordance with the Leavenworth survey, from 1888 until the filing of this suit, December 27, 1929, which is more than forty years.

It is significant that the heirs of Belle Lowery dealt with lot 33 in the sale thereof to Peter W. Woodruff in accordance with the Leavenworth survey of said subdivision, the deed specifically referring thereto, and that plaintiff herein himself acquired said property from Peter W. Woodruff in accordance with the LeaVen-worth purvey, his deed likewise specifically referring thereto.

The only disputed question of fact in the case is wherein lies the error in the Leavenworth survey?

The plaintiff contends that the error in the survey exists only on the ground, and the defendant contends that it is in the recorded plat of the survey, and that the lines as laid out on the ground are in accordance with the plat.

The defendant’s position is supported by the testimony of Mr. Barnes, plaintiff’s witness, and also by Mr. Martin. There is no other evidence in the record on the question.

If the plaintiff’s position was correct on this question, the plea of prescription of ten years’ acquirendi causa could not successfully be asserted, as the title by which defendant acquired would not be translative of the property which he has possessed for the prescriptive period, but, as his position is, incorrect, the error being one of description, and the possession being in exact accord with that description, the plea is well founded if the other elements which constitute the prescription were present, and they admittedly were present. The possession was for the required period in unquestioned good faith, and the object was susceptible to acquisition by prescription.

To put the matter more simply and specifically, the deeds by which Mrs. Cintha H. Weaver and Collie Houston acquired title were translative of the property possessed for the reason that they described the lots with reference to the recorded plat of the subdivision of ten-acre lot 35 of the city of Shreveport, and the possession as shown by the evidence was .in accordance with the description in the deeds. The subdivision was created under the Leavenworth survey, and until recently no other survey or evidence thereof existed which purported to divide ten-acre lot 35 into lots. It is no more pertinent to the issue here presented whether the Leavenworth survey was correct or erroneous than whether the vendors named in the deeds were the owners of the property described therein. To determine the question of whether the deeds were translative of the property, the important inquiry is whether they are regular on their face and embrace the property delivered thereby and possessed thereunder. Neither was defective on its face, and each covered the two lots in question to the limits of their bounds on the ground as per the plat and survey referred to.

We are of the opinion that the I>lea of prescription of ten years’ acquirendi causa should be sustained, and that the judgment of the district court rejecting plaintiff’s demands is therefore correct and should be affirmed,- and it is so ordered.


text:
    No. 4081
    Second Circuit
    GIVENS v. FIRST NATL. BANK OF ARCADIA ET AL.
    (December 9, 1931. Opinion and Decree.)
    Barksdale, Warren & Barksdale, of Ruston, attorneys for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellee.
   McGREGOR, J.

In this, case counsel for the plaintiff and appellant appeared in open court and abandoned the appeal and asked that the judgment of the lower court in favor of the defendant be affirmed, and it is so ordered.


text:
    No. 4104
    Second Circuit
    C. C. HEBERLING CO., INC., v. DALTON ET AL.
    (December 19, 1931. Opinion and Decree.)
    Kimball & Smith, of Monroe, attorneys for plaintiff, appellee.
    . B. D. Allbritton, of Monroe, attorney for Frank S. Wyllie.
    Munholland & Munholland, of Monroe, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued William H. Dalton for the sum of $447.70, less certain enumerated credits, representing an account for merchandise purchased by defendant Dalton from plaintiff, and joined the defendants G. W. Brady and F. S. Wyllie as sureties on a contract of guaranty, and prayed for judgment against all defendants in solido.

G. W. Brady in answer denied signing the contract or authorizing it to be signed, and denied liability thereunder. Defendant Wyllie answered. It is unnecessary to state his defense, as he did not appeal and is not before this court. No answer was filed by defendant Dalton. The judgment was rendered against all defendants in solido, and only the defendant G. W. Brady has appealed.

There is. no contest over the correctness of the account against Dalton or as to the amount due. Defendant Brady testified that he did not sign the contract of suretyship, and there is no denial of his testimony. Therefore, we find that the signature of G. W. Brady, as surety on the said contract, is a forgery. The contract of suretyship reads, as follows:

“In consideration of the sum of one dollar to us severally in hand paid by the G. C. Heberling Company, the receipt whereof is hereby acknowledged, and the execution of. the within agreement, by said Company, and the -sale and delivery by .it to the party of the second part, of its medicines, extracts and other articles, as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement and jointly, severally and unconditionally promise and guarantee the full and complete payment for said medicines, extracts and other articles, at the time and place and in the manner as in said agreement provided. It is further understood and agreed, however, that our liability hereon shall not exceed the sum of $500.00 (Five Hundred Dollars.)
“Mr. G. W. Brady Farmer
“Route 1. Box 46.
“Frank S. Wyllie Cabinet-maker
“500 Standifer St., Monroe.”

It is not denied that, if Brady’s signature to said contract was genuine, he would be liable -thereunder. The contract for the sale of goods to Dalton by plaintiff, with the above-stated contract of surety-ship on the back thereof, with the names of G. W. Brady and F. S. Wyllie signed thereto, was forwarded to plaintiff by Dalton. Upon receipt of it, plaintiff, on December 3, 1928, sent by registered mail, return card requested, to defendant Brady the following letter:

“December Third 1928
“Mr. G. W. Brady, R. #1, Box 46, Monroe, La.
“Dear Sir: This is to advise you that our agreement with W. H. Dalton, of Monroe, Louisiana, dated November 19, 1928, and expiring March 1, 1930, limited to the amount of $500.00 for -the sale of our products to him on which you have signed as one of his sureties has been accepted,- and we are now ready to make shipment of first order of goods to Mr. Dalton.
“You will be entitled at any time upon request to a statement of his business and thanking you very kindly for favoring him in this matter, we remain,
“Yours very truly,
“G. C. Heberling, Company,
“President.”

.This letter was received by Brady and read- in the presence of Dalton, who is his 'son-in-law. There is no denial of this fact. Brady did not at that time' or any time thereafter write or . otherwise. notify .plaintiff that his signature to the contract was a forgery. Acting on the faith of said contract, plaintiff shipped goods to Dalton over a period of several months, and finally, when he did not pay, filed the present suit.

On trial of the case, plaintiff interposed a plea of estoppel, contending -that the defendant Brady by his silence was estopped to deny liability on the contract of surety-ship. The lower court sustained this plea.

Plaintiff acted in good faith, believing the signature of Brady to be genuine, and, when Brady received the above quoted letter, it was his plain duty to have notified plaintiff that his signature was a forgery. It was his duty to speak, when he remained silent. His silence caused plaintiff to ship goods to defendant Dalton, when it would not have done so had it known the signature of Brady to the contract of suretyship to be a forgery. The doctrine of estoppel by silence has been repeatedly ■ recognized by the courts, of this state, other states of -the Union, and the Supreme Court of the United States.

In the case of Taylor Company v. New York & Cuba Mail S. S. Co., 159 La. 381, 105 So. 379, 380, the Supremé Court of this state said:

“A person, who by his- acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and to act accordingly, is estopped.”

The same doctrine was held in the First National Bank of Winnfield v. Cuynes, 11 La. App. 323, 123 So. 461; also, see, 16 Cyc. 681.

In the case of Commercial National Bank v. Nacogdoches Compress & Warehouse Company, Circuit Court of Appeals, Fifth Circuit, reported in 133 F. pages 501, 504 a case very similar in fact to the one before us, the court said in part:

“That it was wrong for Baldwin and B. S. Wettermark to remain silent under the circumstances, no just man can deny; and, if such wrong caused injury to the bank, a jurisprudence would be defective that afforded no remedy. If we were without precedent in cases, general principles would authorize relief, for the law can ask no better justification than the instincts of all just men. It would be a most -unreasonable and unjust rule to permit the active managers and officers of a warehouse company, who knew that a bank was relying upon its forged receipts, to remain si-, lent and not divulge the fact until the condition of the bank was altered for the worse. The law condemns not only active misrepresentation, but it imposes such activity as is requisite to reasonable social conduct; condemning negligence and requiring a measure of prudence to avoid injuring others. ‘A good example of duty,’ says the learned author of a recent work, ‘is to be found in cases in which a man, finding that his name has been forged, neglects to notify the victim until after his position * * * has been changed.’ ”

The United States Supreme Court holds to the same doctrine in Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, 6 S. Ct. 657, 29 L. Ed. 811. This court has held to the same doctrine in Goetschel v. Glassell-Wilson Company, Inc., 13 La. App. 424, 127 So. 81

The Supreme Court of Mississippi in the case of Strauss Brothers v. Denton, 140 Miss. 745, 106 So. 257, 258, 45 A. L. R. 341, in which the facts are identical with the case before us, said:

“When silence is of such character and exists under such circumstances as to become a fraud upon the other party to permit the party who has kept silent to deny that which his silence has induced the other party to believe and act upon, it will operate as. an estoppel. * * *
“Here we have Purnell committing not only a fraud, but a criminal fraud by means of which the indebtedness to appellant was incurred, and all with the full knowledge of appellee. We are of the opinion that the facts of this case meet every requirement of the law as to what it takes to constitute estoppel by silence. The appellee was called on to speak from the standpoint of his duty to the public, as well as from a view of his obligations to his fellow man. He knew a crime was being committed that. should have caused him to let the truth be known. In addi-’ tion, he knew his fellow man would suffer by commission of such crime. It was in appellee’s power and his power alone to stop the perpetration of the fraud in his name. We hold that appellee, having failed to speak the truth when he should have spoken, will not now be permitted to speak it to the damage of appellant.”

We are convinced, therefore, that the plea of estoppel was correctly sustained by the lower court, and the judgment in favor of plaintiff and against the defendant Brady is correct.

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