text:
    No. 3475
    Second Oircult
    SMITH v. McCALL ET AL.
    (May 8, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)
    Ellis, Ellis & Hunt, of Rayville, attorneys for plaintiff, appellee.
    Munholland & Munholland, of Monroe, attorneys for defendants, appellants.
   REYNOLDS, J.

By this action plaintiff, Jodie B. Smith, sought to recover judgment against defendant, S. H. McCall, for $454.98, with interest thereon at the rate of 8 per cent per annum from March 1, 1926, until paid, with 10 per cent on the amount of principal and interest, as attorney’s fees, less a credit of $75.59 as of October 1, 1926, being the amount owing on a promissory note signed by S. H. McCall for $454.98, dated March 1, 1926, drawn payable to the order of C. V. Hunt on October 15, 1926, bearing interest at the rate of 8 per cent per annum from its date until paid, and stipulating for the payment of 10 per cent as attorney’s fees if placed in the hands of an attorney for collection, and indorsed by plaintiff, J. B. Smith, and on which note $75.59 was paid on October 1, 1926, and which note he (J. B. Smith) was compelled to pay because of his indorsement.

Under proper allegations and bond he procured the issuance of a writ of attachment against the property of defendant S. H. McCall.

And he alleged:

“That petitioner believes that the Macon Ridge National Bank, a banking corporation domiciled and doing business in the town of Delhi, your said parish and state, is indebted unto said S. H. McCall, or unto Hattie McCall, wife of the said S. H. McCall, who is in community with her said husband, or has property or effects in its possession or under its control belonging to the said S. H. McCall or his wife Hattie McCall. Petitioner desires that the said Macon Ridge National Bank be made garnishee herein and required to answer categorically and under oath the annexed interrogatories.”

And he propounded to the garnishee the following interrogatory:

“Were you, at the time of the service of these interrogatories or at any time since, indebted or obligated to S. H. McCall, or to Hattie McCall for anything or for any sum whatsoever, in consequence of any deal or transaction of any kind or character; you being required to make a full and complete disclosure, giving amount, description, and any other information you may have of such transaction.”

And he prayed judgment against the defendant for the debt claimed, and that the writ of attachment be sustained, and that the garnishee be required to answer the interrogatories, and that his privilege on the property seized, resulting from the issuance and levy of the attachment, and on the money, property or effects in the possession of the garnishee, by reason of the garnishment, be recognized, and that his judgment be satisfied out of the same by preference over all other creditors of the defendant.

The garnishee answered that:

“S. H. McCall had no money to his credit or any rights or other property in custody of this bank at the time of service of the interrogatory. That Hattie McCall, wife of S. H. McCall, had to her credit the sum of $800.00 at the time of service of the interrogatory.
“At the time of the service of these interrogatories, nor at any time since, nor now, is Macon Ridge National Bank obligated to S. H. McCall for anything or for any sum whatsoever. That Hattie McCall has to her credit the sum of $800.00 at the time of answer to this interrogatory.”

Mrs. Hattie McCall bonded the seizure of the $800.

She also filed an exception, wherein she alleged that she had been served with copy of the petition and citation in the case and of the writ of attachment and of the interrogatories propounded to the garnishee, and that no cause of action against her was stated therein, and she prayed to be dismissed from the suit.

The exception was overruled.

The garnishee also filed an exception, wherein it alleged that the money in its possession to the credit of Mrs. McCall was not subject to seizure under process against her husband, and it asked that the writs of attachment and garnishment be dissolved or recalled as to it.

The exception was overruled.

The defendant, S. H. McCall, having been served and cited, and having failed to answer, judgment by default was entered against him and afterwards was duly confirmed, and judgment was rendered against him for the amount of the principal, interest, and attorney’s fees sued for, and sustaining the writs of attachment and garnishment, and ordering the garnishee to pay over to plaintiff out of the money in its possession to the credit of Mrs. McCall an amount sufficient to satisfy the judgment against S. H. McCall.

Prom this judgment, both the garnishee and Mrs. McCall appealed.

OPINION

The question to be determined is whether money on deposit in bank to the credit of a married -woman can be seized by garnishment process against the bank in an action against her husband to which she is not made a defendant either before or after answer by the garnishee that it had no money on deposit to the credit of the husband, but had a named sum on deposit to the credit of the wife.

The answer of the garnishee to the interrogatories propounded to it were categorical and positive that:

“S. H. McCall had no money to his credit or any rights or other property in custody of this bank at the time of service of the interrogatory.”

But that:

"Hattie McCall, wife of S. H. McCall, had to her credit the sum of $800.00 at the time of service of the interrogatory.”

This answer was verified by the oath of the president of the garnishee, and its truthfulness was not traversed by plaintiff.

“The law is that, where the answers of the garnishee are not traversed and disproved, the extent of his liability is to be tested solely by his said answers. Plash v. Norris, 27 La. Ann. 93, citing Oakey v. Miss. & Ala. R. Co., 13 La. 570. And it is only where the answers of the garnishee are an unconditional and unqualified confession of indebtedness to the defendant that judgment can be taken pro confessis against him, the garnishee. David v. Rode, 35 La. Ann. 961; that is, in other words, the liability of the garnishee to the defendant must then clearly appear from his said answers. Edward Thompson Co. v. Durand, 124 La. 381, 50 So. 407.” Airey & Stouse v. Hoke (C. P. Ellis & Co., Garnishee) 164 La. 998, 115 So. 60.

In the case quoted from, the garnishee answered that it was not indebted to the defendant and had no funds in its possession belonging to him, but that:

“It carries on its books an account entitled Barrett & Co. Inc., a/c E. P. Hoke, for the purchase and sale of cotton future contracts, which account at present stands with a ledger credit balance of $1,157.12. * * *”

The plaintiff thereupon moved for judgment against the garnishee for the amount it admitted ■ to have in its possession, on the ground that the answer unmistakably showed that the credit was the property of the defendant. The trial court refused to take this view of the answer and denied the. motion, and the Supreme Court, sustaining the ruling, said:

“But, since the answers of the garnishee, as given above, are clearly not an unconditional and unqualified confession of indebtedness to the defendant, but, on the contrary, a distinct and unequivocal denial of any indebtedness whatever to defendant, it follows that the question here is whether it clearly appears none the less, from said answers, that the garnishee is liable to the defendant for $1,157.12, because said answers clearly and unmistakably show that the balance to. the credit of the account entitled Barrett & Co., Inc., a/c E. P. Hoke, is the property of said E. P. Hoke as the disclosed principal for whom Barrett & Co. Inc. were acting. We do not think so. The answers of the garnishee do not show, and probably the garnishee does not even know, what are the relations existing between Barrett & Co., Inc. and the defendant, and what may be the state of the account between them. * * * And Barrett & Co., Inc., are certainly entitled to be heard before a balance standing to their credit and subject to their control be taken away from them and adjudged to another or to his creditors * * *” — citing Edward Thompson Co. v. Durand, 124 La. 381, 50 So. 407, and Mansfield v. Stevens, 31 Minn. 40, 16 N. W. 455.

In the former case, the plaintiff, Edward Thompson Company, garnisheed the People’s National Bank of New Iberia as the debtor of the defendant, Durand, which answered that it had no money on deposit to the credit of the defendant, but that it had money on deposit to his credit as “president of the Louisiana Auto Club,” naming the amount.

To the end of traversing the answer, the plaintiff filed a motion asserting that the money on deposit was the property of the judgment debtor and that there was not any such corporation as that of which he purported to be president. The garnishee excepted to the motion on the ground that the facts sought to be proved could 4not thus be ventilated, and considering this contention the Supreme Court said:

“It may be that the corporation is a mythical corporation, and that a mere name was used by the depositor. None the less, the deposits have been made in the name of the company. Until it is proven that the name is fictitious, we do not think that the bank should be held liable as garnishee. * * * Plaintiff did not proceed against the asserted party. It was for plaintiff to make Durand a party individually, and to prove that he is not the president of the company of which he asserts he is.”

And the court cited Mansfield v. Stevens, supra, wherein it was held that:

“Where the evidence, upon the disclosure of a garnishee, shows that the debt sought to be garnisheed is payable to a third person, and not to the defendant in the principal action, the disclosure itself is sufficient to protect the garnishee, and it devolves upon the plaintiff to bring in such party if he desires to test the validity of his claim.”

Act No. 90 of 1926 provides:

“That notice to any bank or trust company doing business in this state of an adverse claim to a deposit standing on its books to the credit of any person shall not be effectual to cause said bank to recognize said adverse claimant unless said adverse claimant shall also either procure a restraining order, injunction or other appropriate process against said bank from a court of competent jurisdiction in a cause therein instituted by him wherein the person to whose credit the deposit stands is made a party and served with summons, or shall execute to said bank, in form and with sureties acceptable to it a bond, indemnifying said bank from any and all liability, loss, damage, costs and expenses for and on account of the payment of such adverse claim or the dishonor of the check or other order of the person to whose credit the deposit stands on the books of said bank. * * *”

In First Natchez Bank of Natchez, Miss., v. Moss, 52 La. Ann. 170, 26 So. 828, the bank, as a judgment creditor of the defendant, Hartwig Moss, garnisheed Janvier & Moss. Limited, and-propounded interrogatories to it in which they were interrogated, not only as to whether it was indebted to Hartwigg Moss, the judgment debtor, or had property or effects of his in its' possession or under its control, but whether it was indebted to Mrs. Rosa Rose Moss, or had property of hers in its possession or under its control.

The garnishee answered that it was not indebted to Hartwigg Moss and had no property or effects gf his in its possession or under its control, but excepted to the right of plaintiff to propound questions to it, touching the business relations between it and Mrs. Rosa Rose Moss.

Before the exception was disposed of, plaintiff traversed the answers of Janvier & Moss, Limited, and thereby sought to raise an issue between itself and Janvier & Moss, Limited, as to .the ownership of certain shares of stock standing in the name of Mrs. Rosa'Rose Moss belonging to her or her husband, the defendant, Hartwigg Moss.

The trial court sustained Janvier & Moss, Limited’s, exception to plaintiff’s right to propound interrogatories to it as to any” indebtedness it might be under to Mrs. Rosa Rose Moss, or to its having property or effects of hers in its possession or under its control, and from that judgment the plaintiff appealed.

And, sustaining this judgment, the Supreme Court said:

“All that we are concerned with now is whether the district court erred in relieving Janvier & Moss, Limited, from answering as garnishees the interrogatories propounded to them as to their having in their possession property of Mrs. Moss. It is not now a question whether Janvier & Moss, Limited, could on the traverse either of their own answers as garnishees, as made in reference to their relations with Hartwigg Moss, or upon the traverse of the answers made by Mrs. Hartwigg Moss as garnishee, be brought to the stand as witnesses, and made to testify on an issue attempted to be raised as to the simulation of the title to Mrs. Moss of the 73 shares of stock standing in the name of the latter. It has been held that a judgment creditor cannot, when a garnishee has answered negatively to having in his possession property of the judgment debtor, be permitted, by traverse to the answer, to raise an issue with the garnishee as to the ownership of property in his possession, the title of which is in the name of some person other than the judgment debt- or. Ivens v. Ivens, 30 La. Ann. 249; Peet v. McDaniel, 27 La. Ann. 455; Liminet v. Fourchy, 51 La. Ann. 1303, 26 So. 87. If this be true, it is more obviously true that the original interrogatories propounded to a garnishee could not be directed to the ascertainment of whether the party sought to be made garnishee does not hold in his possession property standing in the name of some person other than the judgment debtor.”

It was contended by the plaintiff that the garnishee was without interest to champion the rights of Mrs. Moss inasmuch as she had not herself objected to the effort to compel it to disclose its business relations with her, and, answering this Contention, the court said that it was based upon a misconception of the facts, and that:

‘“file two garnishment proceedings, though originally in one petition, are separate and distinct. The citation upon Janvier & Moss, Limited, brought them into court in their own garnishment proceeding, but not into the garnishment proceeding against Mrs. Rosa Rose Moss, and the citation upon Mrs. Rosa Rose Moss brought her into her own garnishment proceedings, but not into that of Janvier & Moss, Limited.
“Neither is a party to any other proceeding than their own. Mrs. Moss has not, in her own proceeding, waived any of her rights or tendered in her answers any issue of the ownership of the stock standing in her name. It is the plaintiff who has tendered that issue, by its traverse in her case. * * * The traverse itself in that proceeding has not been tried, and when brought to trial it is fair to assume that Mrs. Moss will deny the right of the plaintiff in proceedings in garnishment directed against her to attack her title to the shares of stock standing in her name. Plaintiff is in error in supposing that Janvier & Moss, Limited, have filed their exception in the interest of Mrs. ^Rosa Rose Moss, or that they have set up in any way the title of Mrs. Moss to any property in their possession. They have simply denied, in their own interest, the right óf any judgment creditor, in garnishment proceedings, to propound original interrogatories to a garnishee except as to property in their possession belonging to the judgment debtor. It is obvious that such a claim,_ if permitted, would so seriously interfere with the business of parties that they are legally interested in their own behalf to contest it.”

In the case at bar Mrs. McCall has, by exception to plaintiff’s proceedings, denied his right in this way to question her title to the money on deposit in the bank, and the bank has, by exception to the proceeding, denied plaintiff’s right to question, in a proceeding to which she is not a party, her ownership of the money.

In the case at bar, as in the one quoted from, neither garnishee is a party tq the garnishment proceeding against the other.

This decision was rendered prior to the enlargement of the rights of married women to obligate themselves generally and to stand in judgment without authority from their husbands or the court; and in Yiew of Act No. 63 of 1896, which provides:

“That any married woman shall have the right to open accounts in the different banks of this state, whether national or state banks, and in savings banks, and deposit money, checks, notes and other funds therein, and to withdraw the same, by check or otherwise and without the assistance or incervention of her husband in the same manner and under the same conditions as if she was a femme sole or unmarried woman.”

And uf Act No. 132 of 1926, which provides;.

“That a married woman, whether a resident of this state or not, shall be competent to contract debts, purchase, sell and mortgage and to bind and obligate herself personally and with reference to her separate and paraphernal property; to appear in court and to sue and be sued; to sell, alienate or otherwise dispose and to mortgage and pledge or otherwise encumber her separate and paraphernal property for the benefit of herself, her husband or any other person, and to bind and obligate herself personally or as surety for her husband or any other person. * * * That such married women shall exercise the rights granted * * * without the necessity of obtaining the authority of her husband or the judge. * * *”

We think there is greater reason than there was before that money on deposit in bank to the credit of a wife should not be subjected, as community property, to the payment of a community debt, by means of garnishment proceedings against the bank to which the wife is not a party.

Mrs. McCall was entitled to an opportunity, in a proper proceeding against her and the bank, to show that the deposit was not subject to seizure for her husband’s debt.

The Macon Ridge National Bank having answered that it was not indebted to defendant, and had no money or property belonging to him in its possession or under its control, should have been discharged from the proceeding.

And the exception of Mrs. Hattie McCall to the garnishment proceeding should have been sustained and she dismissed.

It is therefore ordered, adjudged, and decreed that the judgmenc appealed from be annulled and avoided in so far as it sustains the writs of attachment and garnishment and orders the garnishee Macon Ridge National Bank to pay to plaintiff out of the money on deposit to the credit of Mrs. Hattie McCall the amount of plaintiff’s judgment against defendant.

It is further ordered, adjudged, and decreed that the answer of the garnishee Macon Ridge National Bank to the garnishment and interrogatories be • sustained and the garnishee discharged.

It is further ordered, adjudged, and decreed that the exception of Mrs. Hattie McCall to the writ of garnishment and interrogatories served on her be sustained and the proceeding dismissed.

It is further ordered, adjudged, and decreed that the plaintiff pay the cost of the garnishment proceedings' and those of 'this court.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 519
    First Circuit
    SUPREME COUNCIL OF THE LILY OF THE VALLEY FREE AND ACCEPTED ORDER OF AMERICA v. LEE ET AL.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    (June 2, 1930. Writs of Certiorari and Review Granted by Supreme Court.)
    (November 2, 1930. Judgment of Court of Appeal Avoided and Reversed.)
    Benton & Benton, of Baton Rouge, attorneys for plaintiffs, appellees.
    C. A. Battle, R. F. Walker, of Baton Rouge, and E. S. Muse, of St. Francis-ville, attorneys for defendants, appellants.
   ELLIOTT, J.

Supreme Council of the Lily of the Valley Free and Accepted Order of America appears as plaintiff in a suit against James Reid, Donnie Wade and Cammille Lee, the purpose of which is to recover a judgment against them, holding that they are no longer officers of the plaintiff, and enjoining them from drawing or attempting to draw upon an endowment fund on deposit in the Union Bank & Trust Company, of Baton Rouge, in the name “Supreme Council of the Israelite Lodge No. 1, 702 Plum Street, Eugene Reed,” alleged to be in excess of $1,200. And also enjoining and prohibiting the bank from paying their checks or draft out of said fund. The bank is a mere stockholder, with no interest except to protect the rights of depositors.

The plaintiff is a corporation entered into on December 17, 1915. Its charter does; not mention the particular law under which! it was organized, and the matter is not referred to by the parties in their briefs. The' declaration of the incorporators in the preamble of the charter, that they are availing themselves of the benefit of the .provisions of the law relative to - corporations for literary, 'scientific, and charitable purposes, would bring the object' of the charter within the provisions of the Revised Statutes of 1870, sec. 677. But the plaintiff, in our opinion, is a fraternal and benevolent association organized under Act 256 of 1912 (amended Act 287 of 1914).

Section 12 of this Act requires seven members in order to incorporate as a fraternal benefit society, and contains other provisions not provided for in the charter. There is no issue however concerning plaintiff’s status.

The matter of organization will not, therefore, be further noticed. It would not have been mentioned at all if it were not that both sides profess to be acting under plaintiff’s charter, which we find to be based on the above law.

The appearance of the plaintiff must also be looked^ on as apparent rather than real, because the officers which its charter provides for and invests with authority to make a claim, such as it is making in this case, are but three in number.

The charter, article 4, provides:

“All the corporate powers of this association shall be vested in and exercised by a Board of Directors to consist of the officers of this Supreme Council, whose titles shall be as follows: A Supreme Chief Dictator; a Supreme Financial Clerk and a Supreme Chief Treasurer. Said Board of Directors shall have power and authority to make all by-laws, rules and regulations necessary for the government of this association and for the management of its affairs.
“The powers herein granted shall be exercised in the management and control of all subordinate lodges in affiliation with this Supreme Council. A majority of the Board of Directors shall constitute a quorum for the transaction of business. All vacancies in the board caused by death, resignation or otherwise shall be filled by the remaining members of the Board. The officers of the Supreme Council, who by virtue of their office compose said Board of Directors, shall be elected annually on the second Monday night in January of each year, at a meeting of the Supreme Council. A failure to elect officers on the date above specified shall not dissolve or affect this corporation, but all officers shall remain in office until their successors are duly elected and installed.
“The first Board of Officers under this charter shall be and consist of the following named persons, to-wit: W. L. Crockett, Supreme Chief Dictator; T. A. Williams, Supreme Chief Financial Clerk and George Burgess, Supreme Chief Treasurer, who shall hold office until January 17th, 1917. The Supreme Chief Dictator shall preside at all meetings of the Council and the Board. And in his absence the Supreme Vice Chief Dictator shall preside.”

It is thus seen that, according to plaintiff’s charter, its officers must be elected annually on the second Monday night in January of'each year. And only three are provided for, each of whom is invested with certain powers and the names stated by which they are to be known.

Willie Le Bray, styling himself as Grand Worthy Superior, Lula Smith, as Grand Secretary, Lula Morgan, Grand Recording Secretary, Ike Weathers, Grand Treasurer, Willie Wells, as Lodge Eternal, Joe Smith, as Grand Marshal/ Ike Selvin, as Assistant Marshal, Allen Nelson, as Inner Guard, Malinda Bradford, as Righthand Shepherd, Lucy Wise, Lefthand Shepherd, Mary Thompson, Righthand Conductor, Rachel Selvin, as Lefthand Conductor, have brought this suit in plaintiff’s name.

They allege that James Reid, Donnie Wade and Cammille Lee were once officers of plaintiff, but are no longer such, and have no right or authority to draw out or check- against said funds belonging to the plaintiff.

The petition alleges that the plaintiff is sometimes referred to in its minutes and in other places, as “The Lily of the Valley Lodge No. 1.” Has issued relief certificates designated as “Relief Certificate, The Independent Israelite Lily of the Valley Lodge of La.,” with the seal of the fraternity used thereon designated as “Supreme Council of the Lily of the Valley Lodge No. 1.”

That the fund on deposit in the hank is 1 under the name “Supreme Council of the Lily of the Valley Lodge No. 1” or “Supreme Council of the Israelite Lodge No. 1.” That whether in one name or the other it is the same fund and belongs to the plaintiff, etc. That the governing body provided for by its charter are no longer officers.

That plaintiff, by customary practice, has interpreted and applied its charter by setting up and maintaining a board of managers composed of officers designated as set out in the commencement of its petition.

That at a semi-annual election held in accordance with customary practice, on July 18, 1928, in full compliance with its laws and regulations, Willie Le Bray and the others named in the petition were elected to the offices so designated. The petition contains other allegations, but the decision of the case does not require a further statement.

Plaintiff’s petition in this case represents it as having thirteen officers with official names not known to its charter. They may not have the power which plaintiff’s three superior officers have under its charter. The petition also represents that these officers were elected at a semi-annual election held on July 18, 1928, which under plaintiff’s charter could not have been done, because, according thereto, if no election was held on second Monday night in January, the officers it then had, held over for another term.

Defendant, James Reid, alias Eugene Reed, Donnie Wade and Cammille Lee for answer alleged that Willie Le Bray and his associates had no right to bring or institute suit in plaintiff’s name. That said Lo Bray and his associates were not officers nor members of plaintiff. That defendants Reid, Wade, and Cammille Lee were plaintiff’s superior officers.

Each side thus claims to be plaintiff’s superior officers, and, as such, the right to control said sum of money on deposit in the Union Bank & Trust Company in the name of “Supreme Council of the Israelite Lodge No. 1, 702 Plum Street, Eugene Reed.”

It is well, we believe, to state that the plaintiff is a negro organization which, so far as we can at present see, operated smoothly and amicably a number of years, and no doubt accomplished good. But due to lack of understanding on their part concerning the provisions of their charter and the necessity for governing themselves according thereto, they got their organization into such confusion and intermixture with another association called “Supreme Council of the Israelite Lodge No. 1” that a work of demarcation and extrication is necessary..

Each side refers to books and ordinances as proving their official status and rights, but reference thereto and oral testimony of the parties proves to the contrary.

Officers provided for in plaintiff’s charter, not appearing or acting for it in bringing this suit, the judgment prayed for in its name is not authorized by the record and should not be granted, for the reason that even if the funds in question belong to plaintiff, which fact is not established, the funds would be under the control of parties not known nor authorized by its charter. To this extent the defense is well sustained by the record.

The contention of James Reid, alias Eugene Reed, Donnie Wade and Cammille Lee, defendants, that the proceedings to which they refer confirmed them as plaintiff’s superior officers, is as futile and clearly without support as that depended on by Willie Le Bray and his associates.

The written and oral evidence offered by the parties shows, however, that there is an association, affiliated in some way with the plaintiff, called “Supreme Council of the Israelite Lodge No. 1,” and that this association has officers with official names similar to those stated at the commencement of plaintiff’s petition, to be officers of the plaintiff. There is no evidence as to how this connection came about, and the extent that it exists does not appear.

Plaintiff’s charter provides that subordinate lodges may be organized, but the evidence does not show that it is a subordinate lodge organized under sections 2 and 4 of plaintiff’s charter.

Plaintiff’s charter provides that all subordinate lodges must have a charter from plaintiff. It does not appear that this association has a charter from the plaintiff or from any other body. And it' does not appear from the record that plaintiff has any rightful authority or jurisdiction over this association called Supreme Council of the Israelite Lodge No. 1.

The evidence shows that the money in question was accumulated by the payment of dues, fees and assessments, not on the part of members of plaintiff, but of this association, and apparently it belongs thereto.

There is contention that the plaintiff and “Supreme Council of the Israelite Lodge No. 1 Plum Street, Eugene Reed” is one and the same thing. But that fact is not established.

There is a claim and contention on the part of plaintiff that the money in question belongs to plaintiff, and that plaintiff is entitled to control it. The evidence does not support the claim. Not only that, but the association in whose name the money stands on the books of the bank, is not a party to this suit.

There is nobody before the court entitled to judgment in the present controversy, authorizing them to handle, draw out, or otherwise dispose of this money. In such a situation it should and must remain in the bank where it is until officers and agents of the owner of the money can present themselves to the bank, properly accredited, and show their right to receive and disburse it.

For these reasons the judgment appealed from in so far as it holds that' James Reid, alias Eugene Reed, Donnie Wade, and Cammille Lee are not officers of the plaintiff under the present showing, and have so far as presently appears, no authority to control or handle the money involved in this suit, and may be held to an accounting for any money belonging to plaintiff that they may have expended in the past, is correct and it is to that extent affirmed. But to the extent that said judgment recognizes Willie Le Bray and his twelve associates to be officers of plaintiff, with authority to bring plaintiff into court and claim and control this money in its name. And also that part which holds that plaintiff “Supreme Council of the Lily of the Valley Free and Accepted Order of America” is entitled to said money under the showing presently made, is erroneous and contrary to the law and the evidence,- and said judgment, to the extent stated, is annulled, avoided and set aside and plaintiff’s demand is now rejected and refused as of non-suit.

The claims and demands of ,the defendants are also rejected as in case of non-suit. °

This money in question is to remain in Union Bank & Trust Company until officers and agents of the owner of the mone3, properly accredited «from the owner with power and authority to act for the owne> and to draw out, check, handle and disburse same, present themselves to the bank and claim it.-

It is further ordered that Willie Le Bray and his twelve associates and the three defendants pay in solido the cost of this suit in both courts.

LECHE, J., not participating.


text:
    No. 577
    First Circuit
    YOUNG v. GLYNN
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930.
    (June 2, 1930. Writ of Certiorari and Review Granted by Supreme Court.)
    (November 3, 1930. Judgment of Court of Appeal Affirmed by Supreme Court.)
    J. C. McGee, of New Orleans, attorney for plaintiff, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

Joe Young claims to have annulled a judgment rendered May 1, 1928, in the district court, parish of Pointe Coupee, approving an agreement between himself and A. L. Glynn for a lump sum settlement of a claim for compensation which he had at the time against said Glynn.

The record shows that said Young and said Glynn presented to the judge of said court an agreement annexed to a joint petition, alleging in their petition that they had entered into said agreement under the provisions of Act 20 of 1914, and laws amendatory thereof, and prayed that same be affirmed and made the judgment of the court.

Judgment was rendered on their petition as prayed for. The present suit, .filed November 27, 1928, has for its object to have said judgment annulled on the ground that the agreement on which it was based was procured from him by fraud and misrepresentation. Plaintiff’s demand was refused and he has appealed.

It is not claimed in the present petition that there was error in judgment on the part of the physician, as to the time it-would require for his atrophied limb to get well, producing a like error on the part of himself in entering into the agreement, and that if it had not been for their mutual error on the subject he would not have consented thereto, but he attacks the judgment on the ground stated, and no other ground.

The' plaintiff’s leg was broken between the knee and the hip while in the employment of defendant, and in the course of the work which he was employed to do. He was treated by a physician in the employ of an insurance company, who had insured defendant against loss on account of accidental injuries of the kind to his employees. The break failed to knit at first and it became necessary to perform an operation; after this the broken member knitted all right, but during the long period of time in which the muscles of his leg could not be used they became atrophied to the extent that he could not use his leg. It was supposed, however, that the trouble would yield to treatment.

Plaintiff entered into an agreement with the agent of the insurance company for a lump sum settlement. The agreement was prepared by defendant’s attorney and contains the following statement:

“Whereas the said fracture has completely knitted, but the said Jone Young, as a result of the non use of the said member, is now suffering from ankylosis of the ankle and knee and it will be about three months before he is entirely well.”

It is this statement that is the ground for the attack on the judgment.

Plaintiff’s averment that fraud and misrepresentation was practiced on him is denied by the defendant.

The evidence shows that the physician stated to plaintiff that in his opinion, in about three months the ankylosis would be overcome and he wojild be entirely well. This opinion of the physician was no doubt the consideration for the agreement on the part of the plaintiff; but we are satisfied that it was not made to the plaintiff for the purpose of defrauding him, nor for the purpose of misrepresenting to him the time required for him to overcome the atrophied condition which had set in. The testimony of the physician satisfies us that such was truly his opinion, and it is possible that if plaintiff had applied himself more intelligently and persistently to the treatment which the doctor prescribed, there would have been more improvement during the three months, than actually took place.

The fact is, however, plaintiff did not recover the use of his limb, and on July 26, 1928, about three months after the agreement had been signed, the same physician wrote a letter to the Red Cross at Baton Rouge, in which he says:

“Please furnish this man, Joe Young, with transportation to Charity Hospital, New Orleans, La., as he is very deserving and needs hospitalization.”

The plaintiff obtained the transportation, and was further treated at the Charity Hospital for his atrophied member, and was there also advised what to do in order to overcome the condition which prevented the use of his leg. Of course, if the plaintiff had remained at the hospital and had been required to undergo the treatment which the physicians recommended, it is likely that improvement would have resulted, but to tell this ignorant negro man what to do, and then let him go home to treat himself, was not calculated to lead to much improvement.

The evidence shows that the physician expressed to the attorney who drew up the agreement, the same opinion, in effect, that he had expressed to Joe Young. And Young himself spoke of the matter to the attorney, giving it as his expectation, based no doubt on what the doctor had told him, that in about three months, counting from the time of «the agreement, he would be well.

We are satisfied that the physician was not guilty of the charge made against him, and that the agreement was fully explained to the plaintiff by the attorney who drew it up.

The situation is one of hardship for the plaintiff, but the judgment appealed from appears to be correct.

LECHE, J., not participating.


author: LeBLANC, J.

text:
    No. 622
    First Circuit
    WRIGHT v. LOUISIANA ICE & UTILITIES CO.
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    (December 1, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Thos. J. Martin, of New Orleans, atto'.'ney for defendant, appellee.
   LeBLANC, J.

This is a compensation suit brought by the widow of John-Wright against the Louisiana Ice & Utilities Company, by whom she alleges he was employed as a laborer and deliveryman of ice. The defendant filed exceptions of vagueness, and no cause of action which were sustained by the trial judge, and the suit dismissed. The plaintiff has appealed.

Defendant’s exception of no cause of action is predicated on the alleged failure of the petition (1) to allege or infer an accident, (2) to show personal injury as defined by the Workmen’s Compensation Act, and (3) to allege an accident arising out of and in the course of the employment. It is further contended that there is no right of action, because the employment which the petition stated the decedent was engaged in is not listed by the Compensation Act as hazardous and compensable.

Whilst it may be that the petition does not in so many words allege the facts and matters defendant contends it must, to disclose a cause of action under the statute, its general signification is such as to make it appear to be a suit coming within the terms and provisions of the act.

Considering defendant’s first complaint, that there is no specific allegation of an accident, we find facts alleged which would bring the cause of decedent’s death within the definition of that term in the Compensation Act (Act No. 20 of 1914). Section 38 of the act defines “accident’’ as:

“An unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

After describing the nature of her husband’s work which required him to personally carry large blocks of ice, “many of which weighed as much as one hundred pounds,” during extremely warm weather, such as it was on the day he died, she avers in paragraph 3 of her petition:

“That while her husband was delivering into the house of a customer a smaller piece of ice at about twelve o’clock noon, August 19th, 1929, he collapsed and died immediately.”

This allegation would indicate that the event which produced not only “objective symptoms of an injury” but death was “unexpected and unforeseen,” and it happened “suddenly,” thus conforming in every necessary respect to the definition of the term “accident” as given in this act.

Defendant”s next complaint against the petition is that it does not show a personal injury to the deceased as defined in the act. We quote again from the act, section 39:

“The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.”

We find no restriction in the use of the words “physical structure of the body.” We take this term to mean the entire composition of the human body, the internal parts as well as the external, and of these certainly the heart is a most vital and important one. That violence can be done to the heart as well as to any external member of the body, such as the eye, the wrist, or the leg, goes without saying, and that disease may result from injury to the heart, as well as infection may set in from a wound in the leg, is recognized as one of the weaknesses of the human body. With these thoughts in mind, we refer again to the petition and find that the plaintiff, who describes her husband as having been “an active, robust and strong man, forty-six years old, apparently in perfect health,” avers in paragraph 4:

“That the cause of his death was due to acute dilatation of the heart superinduced by over-exertion brought on by the lifting and carrying of large blocks of ice in the rush of an unusual volume of business resulting from the intensely hot weather.”

The acute dilatation of the heart may very well be an injury resulting from violence within the meaning of the words of the statute, the violence in this case being the over-exertion in lifting a heavy weight in extreme hot weather. Whether or not the condition with regard to the decedent’s heart was another form of disease or derangement is a matter to be shown on the trial of the case on the merits.

The last contention in the exception of no cause of action is based on the failure of the petition to allege an accident arising out of and in the course of the ' employment. Whilst it is true that the petition does not contain an allegation to that effect couched in the very words of the statute which in express terms provides com-’ pensation to the “person performing services arising out of and incidental to his employment in the course of his .employer’s trade, business or occupation,” ■ still, upon proper analysis of the allegations made, we find facts stated which bring the demand under the operation of that language of the statute. The plaintiff avers that her husband had been constantly employed by the defendant and its predecessors for a period of about seventeen years before his death, at which time he was still in this employ as a laborer and “deliveryman of ice.” That he was in charge of a large wagon used by his employer for the purpose of delivering ice to its customers, and as a part of his duties he carried the ice as required by them into these customers’ residences and places of business. That on the day he collapsed and died, the weather was extremely warm, and, as his only help was a boy of medium size, he found it necessary to personally carry large blocks of ice, some weighing as much as one hundred pounds. That it was, while delivering a piece of smaller size into the house of one of his employer’s customers, the over-exertion caused by the lifting and carrying these large blocks of ice in the rush of business caused his heart to dilate and he collapsed and died immediately. The general purport of all these allegations of fact would indicate to us that the decedent was, at the time of the alleged accident which caused his dealth, in the performance of his services as a . deliveryman of ice in the course of his employer’s business, part of which was the delivery of ice to its customers. It is generally held that the determining test as to whether the injury or death arises out of or incidental to the employment in the course of the employer’s business, trade or occupation is to ascertain if there was any causable connection between the source of the injury and the nature of the employment. Applying this test, we are of the opinion that the allegations of the petition, tallen as true, present a cause of action on this point.

Defendant bases its exception of no right of action on the ground that the employment which the plaintiff avers her husband was engaged in is not listed as hazardous and compensable under the Compensation Act. In its enumeration of the “hazardous trades, businesses and occupations” the act includes “ice plants” and “storing ice.” The term of “ice plants” itself, is broad and general and may be construed to mean every part of the manufacture, sale, and distribution of ice, and the sale and distribution of ice would necessarily include its delivery to the customers. The same construction may be applied to the term “storing ice,” which would include its transportation from the factory to the place where it is to be stored, and its distribution, by delivery wagons or trucks, to customers. The delivery then is an incident, necessary to carry ■on the business, and, as it is the business or “occupation in which the person is employed to perform services rather than his particular duties that determines the application of the act,” the decedent’s employment in this case can very well be said to come under the protection of the statute. Durrett v. Woods, 155 La. 533, 99 So. 430; Mackey v. Fullerton Naval Store Co., 4 La. App. 43; Dartez v. Sterling Sugars, Inc., 7 La. App. 414.

We are of the opinion that plaintiff has a right of action, and therefore the exception of no cause or right of action should have been overruled.

On consideration of the exception of vagueness, we have reached the conclusion that it should be sustained, and we have done so with due regard to those provisions of the Compensation Statute which allows the judge much latitude, especially in the matter of admitting evidence in the trial of these cases.

We are not unmindful also of what appears to be the policy of the courts to eliminate as much as possible those technical questions on which other cases are frequently disposed of. But when a defendant is confronted with a question which presents an issue of substantive right, that right should be protected, and we find some eases in which the Supreme Court, recognizing that right, has dismissed compensation suits on exceptions. Dewey v. Lutcher-Moore Lumber Co., 151 La. 672, 92 So. 273; Gros v. Millers’ Indemnity Underwriters, 153 La. 257, 95 So. 709. One of the defendant’s such rights is to be informed by the petition of the material facts which the plaintiff depends to recover from him, so that he may properly prepare his defense.

In the petition before us, the fact is alleged of the sudden death of plaintiff’s husband on August 19, 1929, while he was delivering ice to one of the defendant’s customers. The petition is addressed to the Nineteenth judicial district court, for tne parish of East Baton Rouge, and an allegation is made, rather vaguely, that the defendant has its domicile in the city of Baton Rouge in that parish. There is not a word to inform defendant where this accidental death occurred. As far as the allegations of the petition go, defendant would not know if it happened in the city of Baton Rouge, the parish of East Baton Rouge, or elsewhere. The allegation is made that the decedent, when he collapsed, was in the act of delivering ice to one of the defendant’s customers, but the customer’s name is not given, and there is no way, as far as the petition discloses, in which the defendant can find out who that customer was. The petition also states, as a matter of fact, that the decedent was assisted in performing his services by a medium-sized boy, but that boy’s name is not mentioned. These are all matters of fact, as it appears to us, which are very material and of which the defendant is entitled to the proper kind of information. The failure of the pleader to put the defendant on its guard, and to grant to it its right to present a proper defense, is a matter which reaches beyond “the common law or statutory rules of evidence or any technical or formal rule of procedure.” It is a denial of one of the defendant’s substantive rights, for which the pleader must suffer the consequences of his carelessness or neglect.

• The trial judge correctly sustained the exception.

It is therefore ordered that the judgment of the lower court sustaining the exception of no cause or right of action be set aside and reversed, and that, in as much as said judgment sustains the exception of vagueness, it be affirmed.


author: DREW, J.

text:
    No. 3738
    Second Circuit
    HORTMAN ET AL. v. WATSON
    (November 7, 1930. Opinion and Decree.)
    Dimick & Hamilton, of Shreveport, attorneys for plaintiffs, appellants.
    C. B. Prothro, of Shreveport, attorney for defendant, appellee.
   DREW, J.

Plaintiffs sue for damages alleged to have been sustained in a collision between the car in which they were driving and a truck parked on Hotchkiss street in the city of Shreveport, Louisiana.

They allege that the truck was parked on said street after night without any lights being displayed on the truck; that the truck had a flat body and the cab part of the truck prevented them from seeing the bed or body of the truck until too late to avoid running into it. They further allege that there was a pole extending out the back of the truck some several feet, which pole plaintiffs allege first came in contact with the car in which plaintiffs were riding, causing the car to overturn and cause the injuries complained of.

Defendant denies the material allegations of plaintiffs’ petition and pleads contributory negligence on the part of the plaintiffs for not seeing the parked truck, and avoiding a collision with it; alleging that the street at the point of the accident was well lighted and the truck was visible to anyone who was keeping the proper lookout.

The lower court rejected the demands of plaintiffs and from that judgment they have appealed.

The record shows that defendant left a truck parked in front of his home on Hotchkiss street, without any lights being displayed on the truck, and that the accident happened after night, but the evidence conclusively established that the pole extended out from the bed of the truck only a few inches; that plaintiffs’ car did not come in contact with the pole, but struck the hub cap of the left rear wheel of the truck; and no other part of the truck came in contact with the car of plaintiffs”. ■

The truck was parked on the extreme right-hand side of the street, which was 36 feet wide, and 26 yards in front of the truck there was a street light, and another approximately 100 yards back of the truck, and about 70 yards diagonally across the street was a drug store with an electric sign on the front and also twelve or more small lights. The cab of the truck prevented to some extent the light from the street light in the front of the truck from falling full on the bed of the truck, and the light from the street light to the rear of the truck was cut off to some extent by trees, but there was not any obstruction between the truck and the drug store, and the preponderance of the evidence established that the point where the truck was parked was well lighted, and that the truck could have been readily seen. However, if the street at the point where the truck was parked was not sufficiently lighted to enable one driving along the street to have readily seen the truck; yet, considering the evidence which shows that the lights on plaintiffs’ car were burning; that the speed of the car was from four to six miles per hour, and that the car could have been stoped within a distance less than the length of the car. it is apparent that plaintiff could and should have seen the truck in time to avoid the collision (Firemen’s Insurance Co. v. Brooks Tarpaulin Co., 3 La. App. 502), and if plaintiffs did not see the truck in time to have avoided the collision, the only reason was that they were not maintaining a lookout.

The trial judge, with the permission of the parties, viewed the scene of the accident when the same conditions existed as at the time of the accident, and from our review of the record, we find that the judgment rendered rejecting plaintiffs’ demands was correct, and the judgment is affirmed.


text:
    No. 3763
    Second Circuit
    BAPTIST HOSPITAL v. CAPPEL
    (July 5, 1930. Opinion and Decree.)
    (December 2, 1930. Writ of Review Refused by Supreme Court.)

      Hawthorn & Stafford, of Alexandria, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   DREW, J.

The Baptist Hospital, plaintiff in this suit, is a non-profit making corporation, organized under the laws of the State with its domicile at Alexandria, Louisiana, where it owns, maintains and operates a general hospital for the care of the sick. It is owned by the Baptist denomination and is managed by a board of trustees, elected from the members of that church in Louisiana. In connection with the hospital, it operates a training school for young ladies who desire to become nurses.

The hospital now consists of two brick buildings, which are used as the hospital proper, and in addition, owns a frame building located behind the hospital which is used as a nurses’ home. The hospital is located in the downtown section of Alexandria and- is in the block immediately adjoining Red River, and the nurses’ home, which is behind the hospital, is within a few’feet of the Red river levee.

In the latter part of the year 1926, the Louisiana Nurses’ Board threatened to withdraw the standing of the Nurses’ Trainmg School unless a new nurses’ home was built, declaring the present home unsatisfactory. The hospital, not having sufficient funds on hand, through its board of trustees, decided to ¡put on a campaign to raise funds by appealing to the generosity of the citizens of Alexandria and surrounding communities. The goal set was $100,000, with the understanding that the first money collected was to be used in building a new nurses’ home and the remainder to add to the present hospital. As is usual in such cases, the goal set was not reached and there was barely enough subscribed to build a nurses’ home.

The defendant in this suit, Dr. J. T. Cappel, a practicing physician in the city of Alexandria, signed a pledge card for the sum of $500. The card is dated March 10, 1927, and made payable in four installments of $125 each, in May, August, November and April following. He paid the first installment of $125 and thereafter refused to pay the other installments, and this suit followed.

The card he signed reads in part as follows: .

“For a valuable consideration, receipt of which is hereby acknowledged, and in consideration of the subscription of others, I hereby subscribe and promise to pay to the order of the Baptist Hospital at Rap-ides Bank, Alexandria, Rapides Parish, Louisiana.
“It is understood that this money is for the construction and equipment of a .borne for nurses and for an addition to the present hospital buildings and equipment of the Baptist Hospital in Alexandria, Louisiana, and that the first call on the money collected shall be for the Home for Nurses.”

It was the intention of the hospital authorities at the time of taking the subscriptions, to build tbe new nurses’ home on the old site and to add to the present hospital, but before they had collected sufficient monies to begin the erection of the nurses’ home, they were informed by engineers connected with the government that when the government began its work in the Red river valley to prevent further overflows, it would very likely put the present site of the nurses’ home within the levee, and advised against spending a large sum of money on this property. Paced with this situation, it became necessary to look around for another building site for the- nurses’ home and the board of trustees finally decided on a lot on the outer edge of the city and about two miles from the present location. They purchased a tract of land there consisting of about five acres and began the erection of the home, which they continued uDtil all money that had been collected gave out. The property on which the new home is located was purchased with funds other than that raised by the drive and did not in any way deplete that fund.

We gather from the record that this is the first of a number of like suits that will follow if the hospital is successful in this one, and, in that respect, is a test one.

The defendant resists the payment of his pledge or subscription for the reason, as alleged — failure of consideration and error and fraud. However, the real defense is that he objects to the nurses’ home being built two miles from the hospital, which, he contends, causes the consideration to fail. He testified that he would not have subscribed to the fund had he known that the home was going to be built at the present location. He further contends that he is relieved from paying his pledge for the reason that the home was not built within the time it was represented that | it would be built; that the home two miles from the hospital will be absolutely useless; and that the misrepresentation made to him as to' the place the new home was to be built and the time in which it was to be completed are such as to relieve him from liability on his pledge.

On these issues the case was tried in the lower court and judgment was rendered in favor of the plaintiff, from which judgment the defendant has taken this appeal.

There can be no question about the validity of the contract at the time the pledge card was signed. The Supreme Court of this State correctly laid down the law governing such contracts in the case of Louisiana College v. Keller, 10 La. 164, wherein the court said:

“But the defendant seeks to avoid the payment of the sum subscribed by him, under the plea that his promise was without consideration, and is not binding on him. An obligation, according to the Code is not the less binding though its consideration or cause is not expressed. We are not informed as to the consideration of this promise, by anything on the face of the papers. It may have been the advantage the defendant expected to derive from the establishment of a college at his own door, by which he would save great expense in the education of his children, or it may have been a spirit of liberality and a desire to be distinguished as the patron of letters. Whatever it may have been, we see nothing illicit in it; nothing forbidden by law, and the promise binds him, if he consented freely, and the contract had a lawful object. In contracts of beneficence, the intention to confer a benefit is a sufficient consideration.”

The only remaining question is whether or not the acts of the Baptist Hospital have been such, since the signing of the pledge card, to relieve the defendant of liability.

Necessity and sound judgment required the building of the new home some place other than the old hospital site. It would have been foolish indeed to have spent fifty or sixty thousand dollars on this site after being informed by engineers that the property would likely be taken in by the levee when the improvement of Red river began. It was necessary to secure another location and the duty of deciding on that location was upon the board of trustees of the hospital and not upon the subscribers. The board decided upon the new location and began the erection of the building, spending many thousand dollars, without any complaint from any subscriber until the money collected had been expended. There is much testimony in regard to the home being satisfactory or unsatisfactory that great a distance from the hospital, with about as many witnesses testifying one way as the other. That, however, does not affect the defendant. He testified that his purpose in making the pledge was to prevent the standing of the training school being withdrawn and thereby causing the ladies in training to lose the time they had spent in training there. It was his kind feeling for the young ladies in training and his generosity that caused him to sign the pledge. The purpose for which he claims to have given has been accomplished, the standing of the training school has not been withdrawn and he should be satisfied unless he can show some injury to himself, which he has failed to show.

There is no merit in his contention that the home was not completed within the time represented to him. He well knew that the building of the home depended upon the subscriptions made and collected, and if sufficient subscriptions had not been made, the home could never have been built nor can it be completed until those that have been made are paid. He, having subscribed and refused to pay, is not in very good grace to complain about the borne not being completed on time, when it was the failure of him and others to meet their obligations that prevented the building of the home.

Defendant does not show that any benefit he expected to receive from the new nurses’ home has been in any way lessened or that he has been in any way injured by the change in plans; therefore, he is bound by his pledge.

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


author: WEBB, J.

text:
    No. 3787
    Second Circuit
    W. J. & C. SHERROUSE, LTD., v. PHENIX
    (June 2, 1930. Opinion and Decree.)
    (November 7, 1930. Rehearing Refused.)

      Thompson & Berry, of Winnsboro, attorneys for plaintiff, appellee.
    D. J. Anders, of Winnsboro, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, holder of a promissory note drawn by defendant on December 11th, 1920, for the sum of $618.75, payable to the order of plaintiff on October 15, 1921, bearing 8 per cent per annum interest from maturity and stipulating for the payment of 10 per cent attorney’s fees in event of suit, on which there appeared indors'ements indicating payments to have been made on November 10, 1921, December 29, 1922, and October 26, 1923, of $168.64, $38.45 and $154.75 respectively, instituted the present suit on May 25, 1928, to recover judgment against defendant for the amount of the note, principal, interest and attorney’s fees subject to credits as indicated by the indorsements on the back of the note.

Defendant answered admitting that he had executed the note in favor of plaintiff, but denied that the payments had been made, and alleged that at the time the note was given he had executed a chattel mortgage on certain property to secure the payment of the note, and that the mortgaged property, together with several bales of cotton, had been delivered to plaintiff in the fall of the year 1921, in payment of the note, and he pleaded the prescription of five years against the action on the note. On trial, judgment was rendered in favor of plaintiff, as demanded, and defendant appeals.

The evidence established that plaintiff had furnished defendant with supplies during the years 1920,. 1921 and 1922, and that the note sued upon was given in settlement of a balance due on open account for the year 1920; that the indorsements appearing on the back of the note were in the handwriting of a bookkeeper of plaintiff company, who was dead at the time of the trial, and defendant’s testimony was that he had delivered property to plaintiff in the fall of 1921, and was under the impression it had been accepted in payment "f the note, and he especially denied that he had made any payment on the note in 1922 or 1923.

From the face of the note and record, it appears that a period of more than five years elapsed from the date of the maturity of the note to the date of suit, and unless the current of prescription had been interrupted, the plea of prescription should have been maintained. (Art. 3540, Civ. Code.) The burden of proof was on the plaintiff to show that prescription had been interrupted (Culotta v. Washington, 12 La. App. 75, 125 So. 300; Lowentritt v. Posey, 5 La. App. 449), and while it is conceded that payments on the note would interrupt prescription, and that parol evidence is admissible to show such payments, we think the proof that the indorsements on the back of the note, indicating payments had been made on the note, were in the handwriting of the bookkeeper of plaintiff company, does not tend to establish that any such payments were made and prescription interrupted. Splane v. Daniel, 11 Rob. 449; McMasters v. Mather, 4 La. Ann. 419; Succession of Stocking, 6 La. Ann. 229; Maskell v. Pooley, 12 La. Ann. 661; Munson v. Robertson, 19 La. Ann. 170; Boulin v. Rainey, 21 La. Ann. 335. And we do not think such evidence can be considered as of any significance.

The only evidence in the record which we think can be said to tend to show that any payment was made on the note after maturity, is the allegation in defendant’s answer that he had delivered property to plaintiff in the fall of 1921, and his statement in support of the allegation; but conceding that the property was delivered after the maturity of the note, or as late as the last day of th'e fall of 1921, and that prescription began anew on that date, a period of more than five years elapsed from that time to the date of the suit, and there is not any evidence in the record tending to show interruption of prescription after that time, and the plea of prescription should have been sustained.

However, appellee contends that should the plea of prescription be sustained, that under the evidence the note was given in settlement of a balance due on open account and he should have judgment on the account, and in support qf the contention cites the rule that the admission of evidence not relevant to the issues presented extends the pleadings and authorizes the court to render judgment on the evidence submitted (Cross on Pleading, sec. 114, et seq.).

It is true that the consideration of the note was not at issue under the pleadings, but the proof that the consideration of the note was a balance due on open account, while it shows that plaintiff had a right of action against defendant on an account which could have been made the basis of a suit, and indicates that in such action,, as suggested by counsel, the note may have: been used to show a written acknowledgment of the account (Harman & String-fellow v. LeGrande, 151 La. 253, 91 So. 726), does not warrant the court to consider what might be due on the account.

Had the suit been originally based on the account, or had an alternative demand been made for judgment thereon, it would have been essential for the account to have been offered in evidence, and in the action on the note, the mere proof that the consideration of the note was a balance due on open account, without the account being filed in evidence, did not extend the pleadings and authorize judgment on the account (Fisk v. Mead, 18 La. 332). It is therefore ordered that the judgment appealed from be avoided and reversed and that plaintiff’s demands be rejected at its cost.


author: ODOM, J.

text:
    No. 3819
    Second Circuit
    HOWELL v. ROBINSON
    (November 7, 1930. Opinion and Decree.)
    Cecil Morgan, of Shreveport, attorney for plaintiff, appellee.
    B. H. Lichtenstein, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

An automobile owned by the plaintiff and one owned by defendant collided at a street intersection in the city of Shreveport, and both cars were injured. Plaintiff brought suit against defendant to recover the amount of damage to his car, alleging that the accident was due solely to the fault, negligence and careless driving of the driver of defendant’s car. Defendant answered, admitting the collision and set up that the accident and collision were not due to any fault or negligence of his driver, but, on the contrary, due solely to the fault and negligence of the driver of plaintiff’s car, and he sued in reconvention for the damage to his car. There was judgment for plaintiff and defendant has appealed.

The testimony makes it perfectly clear that the collision was due to the fault and negligence' of defendant’s driver. Plaintiff and his wife were driving south on Marshall street on their right-hand side, and defendant’s car was being driven north on the same street, on its right-hand side. Just as the two cars were approaching the intersection of Cotton street with Marshall defendant’s driver cut sharply across Marshall street to the left to go into Cotton, and the two cars collided at the southern corner of the intersection.

All the testimony shows that defendant’s car was one of a number coming towards the city and that the driver left his side of the street and suddenly crossed over, and ran immediately in front of plaintiff’s car. Plaintiff’s car was being driven by his wife and was occupied by plaintiff and Roy Anderson. The accident was witnessed by other persons, who testified for plaintiff, each and all of them stating that the collision was wholly unavoidable, due to the fact that defendant’s car cut' shortly and quickly across the street and ran immediately'in front of the other one. Plaintiff’s car was being driven at about 15 miles an hour and Mrs. Howell states that she applied the brakes, which took effect, but that the other car was so close in front of her that she could not avoid striking it. All the witnesses for the plaintiff who witnessed the accident stated positively that defendant’s driver gave no signal or warning of his intention to make the turn and that his turn was sudden and unexpected.

Defendant and two other parties in his car at the time testified that his driver sounded his horn and held out his hand to indicate that he was about to make the turn. Whether he did so or not, the fact is that defendant’s driver turned suddenly from his side of the street across to go into Cotton and that his turn was so sudden that a collision between the two cars was inevitable. Defendant’s driver says he saW plaintiff’s car approaching the intersection when it was about 60 feet away, and that' when he turned,. he figured that it would sloiy down and give him a chance to get by. Our conclusion is that the testimony offered by defendant alone is sufficient to justify a verdict for the plaintiff. Immediately following the collision, defendant told Mr. and Mrs. Howell that the collision was due to the fault of his driver and that he would pay the damage. His statement to them was made in the ¡presence and hearing of Roy Anderson, T. B. Hanson and A. H. Bloum.

Defendant filed an exception of no cause of action based upon the ground that plaintiff did not allege that the driver of defendant’s car was his agent. The exception does not seem to have been passed upon by the lower court, but presumably it was overruled. The exception should have been overruled. There was no specific allegation in plaintiff’s petition that the driver was the agent of defendant, but plaintiff did allege that the defendant was in the car at the time of the collision and that the driver was at the time under Ms control and direction. These allegations were sufficient. Plaintiff filed an amended petition in which he specifically alleged that the driver was the agent of defendant. Counsel for defendant says in brief that this amendment should not have been allowed because the original ¡petition set out no cause of action. We hold that the allegations in the original petition were sufficient and that the amendment was wholly unnecessary. Plaintiff made proof of his damage.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both cases.


text:
    No. 3850
    Second Circuit
    OVERSTREET v. OBER ET AL.
    (November 7, 1930. Opinion and Decree.)

      Thomas M. Comegys, Jr., and Lewell C. Butler, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph', Rendall & Freyer, of Shreveport, attorneys for defendant Ober, appellant.
    Pugh, Grimmet & Boatner and J. N. Marcantel, of Shreveport, attorneys for defendant Thomas.
   ODOM, J.

Plaintiff by this suit seeks judgment against these defendants in so-lido for personal injuries which she received when an automobile owned by the defendant Ober and operated by his servant ran into a truck owned and operated by the defendant Thomas, on which truck plaintiff was a passenger. The case was tried by a jury which rendered a. verdict for plaintiff against the defendant Ober and rejected her demands against Thomas. Ober appealed.

The defendant Thomas owns a farm some distance from Shreveport and on the occasion of this accident was carrying plaintiff and other laborers from the city to his farm on a truck. A few miles from the city there is a side or country road intersecting the main highway at right angles from the left-hand side going out, which Thomas had to traverse in order to reach his farm. As he was going out on the main highway Ober’s automobile was trailing the truck, and when Thomas turned to the left across the highway to ' go into the side road, Ober’s car ran against the truck and knocked plaintiff and others off to the ground and plaintiff was injured.

Plaintiff brought her suit against both Thomas and Ober, alleging that each was guilty of negligence in the operation of their respective machines, and that, her injuries are due to the joint negligence of the two. She charged that Thomas was negligent in that he was operating his truck at an excessive rate of speed and that he made the turn to the left without slowing down and without giving any sign or signal of his intention to turn; and that Ober was negligent in that his car “was being driven in a careless and negligent manner and at an excessive rate of speed.”

The testimony shows beyond question that the defendant Thomas was guilty of no negligence in the operation of his truck. He was proceeding along a straight paved highway on his right-hand side, at a moderate rate of speed and, when at a distance of some 30 or 40 yards from the point where the side road intersects the highway where he intended to turn to the left, he extended his left hand and arm out from the cab in which he was sitting, checked his speed to six or eight miles an hour and made a wide turn to the left. It was broad daylight, the road was straight so that every move he made was clearly visible to anyone approaching from the rear. After he had practically completed his turn across the road and about the time the front wheels of the truck had reached the bridge over a ditch on the left-hand side of the road, the Ober car ran against the rear left fender of the truck with such force that all those riding upon it were knocked off tq the ground.

A number of those riding on the truck testified that they saw the Ober car approaching the truck from the rear at a very rapid rate of speed estimated at from 30 to 50 miles an hour. Persons who were at work in the adjoining fields saw the collision. They testified that the Ober car was running at a very high rate of speed as it approached the truck. They saw Thomas check his speed, extend his arm and begin to turn when the Ober car was not over 30 or 40 feet behind, and from the fact that the Ober car was running so fast, they concluded that a collision was inevitable.

The defendant Ober called only one witness, Wash Graham, the driver of his car. He testified that he was following the truck and saw the truck ahead of him; that he saw the truck as it began to turn; that he paid no attention to the side road, didn’t know that Thomas intended to turn as he saw no indication of such intention; that when he saw the truck begin to make the turn he was 25' or 30 feet behind it, was going about 25 or 30 miles an hour, and that he applied the brakes which took effect but he was unable to stop in time to avoid the collision.

The facts as we have stated them are not disputed and it is conceded, we understand, by counsel for Ober, the appellant, that they warrant the verdict and judgment appealed from.

But counsel for appellant contend that certain testimony found in the record was not admissible against and is not binding upon Ober and should not be considered by this court as affecting Ober. The testimony referred to by counsel is that which, tends to show negligence on the part of Ober and which was admitted either against or for the defendant Thomas. Counsel seem to think that the jury in determining the issues against Ober took into consideration all the testimony in the record.

We have no means of knowing what testimony the jury considered. But our reading qf the record has convinced us that there is ample testimony admissible under the pleadings and legally binding upon Ober to warrant the verdict and judgment appealed from.

Plaintiff, in bringing her suit, proceeded upon the theory that her injuries were due to the joint negligence of these defendants and she prayed for judgment against them in solido. She was within her rights in bringing her suit as she did.

Berry on Automobiles, ,6th ed., Yol. 1, page 212;

Civil Code, arts. 2091, 2324;

Cline v. Railroad Co., 41 La. Ann. 1031, 6 So. 851;

20 R. C. L. 678, sec. 17.

This is upon the principle that every person who joins in the committing of a tort is severally liable for the resulting damage. In such suits, if the testimony discloses that only one of the defendants was in fault judgment may be rendered against that one. Therefore, on the trial the plaintiff may introduce testimony to fix the responsibility on both or either of the defendants for the injuries. Likewise the defendants are permitted to introduce such testimony as they see fit to negative the allegations of fault charged against them. Either party may show that he was not at fault and such testimony as either may introduce to that end may involve the other. The testimony brought out by either defendant if admissible under the pleadings to make out his defense, is a part of the whole case and is properly taken into consideration by the jury or court in determining the question of liability.

Plaintiff’s injuries were due to a collision between the Thomas truck in which she was riding and Ober’s car. She was not responsible for the operation of either. The *wo vehicles collided on a straight, paved highway, in open daylight where there were no obstructions and no other vehicles in sight. Some one was negligent. Res ipsa loquitur. The plaintiff having alleged that each defendant was negligent, the ¡purpose of the trial was to ascertain whether each was negligent and if not, which one.

We have stated that the testimony shows that Thomas, before attempting to make the turn, slackened his speed and gave the proper signals. Counsel say that such testimony was not admissible as against Ober because introduced by plaintiff in direct contradiction of her allegations. If counsel’s point be conceded, the fact remains that Thomas also introduced that proof in his own defense, and no reason is assigned why the testimony introduced by him should not be considered as part of the whole case.

The testimony, therefore, which was admissible and binding as to Ober was that Ober’s car overtook and ran against Thomas’ truck due to no fault of Thomas. The driver of Ober’s car says he saw the truck ahead of him. The mere fact that he ran into it is not sufficient proof of his negligence. But the fact that he did, coupled with the facts that the road was open, had no defect in it and that he saw the truck ahead of him called for an explanation by him. The plaintiff, having proved these facts, made out a (prima facie case and the burden was shifted to Ober to show that the collision was due to some cause other than the negligence of his driver.

Blashfield’s Cyclopedia of Automobile Law, Vol. 2, 1619;

Berry on Automobiles, 6th Ed., Vol. 1, 208', 914.

Plaintiff alleged that the Ober car was being driven in a careless and negligent manner. It is urged that such allegations are mere legal conclusions and not statements of fact upon which proof may be offered in support of them. We think that is true and if there had been no other allegations df negligence against appellant no proof would have been admissible. But it was’ specifically alleged that the Ober car was being driven at an excessive rate of speed. That allegation was specific enough to admit of proof and it was proved. Admittedly, the car was making 25 or 30 miles an hour. Under ordinary circumstances that would not be an excessive rate of speed, but the question whether an automobile is running at an excessive rate of speed depends upon the conditions and circumstances surrounding the particular point under consideration. We think a speed of 25 or 30 miles an hour was excessive under the circumstances shown in the present case. Appellant’s driver saw the truck ahead of him and did not, he says, intend to pass it. He drove up to within 25 or 30 feet of it, still maintaining a speed of 25 or 30 miles an hour. He says that when he saw the truck begin to turn he did not have time to stop. That is no doubt true. But it was negligent for him to follow so close behind the truck at such speed that he could not stop in case of emergency. We quote the following from Blashfield’s Cyclopedia of Automobile Law, Vol. 1, Sec. 29, p. 454;

“In trailing other cars, a motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic.”

And the following from Berry on Automobiles, 6th Ed., Vol. 1, Sec. 1034, p. 870;

“A driver of an automobile on a public road, upon approaching another automobile from the rear, must look out for the man ahead, and must have his machine well in hand to avoid injuring the car ahead, so long as the man ahead is driving in accordance with his rights.”

Henican v. Woodman & Baldwin, 1 La. App. 281;

Roberts v. Eason, 6 La. App. 703.

Appellant is clearly liable.

ON THE QUANTUM OF DAMAGES

The jury fixed plaintiff’s damage at $750 and the trial judge approved the award. Plaintiff is a colored woman, does manual labor and sometimes works at a cleaning and pressing establishment. The large bone of the forearm was fractured near the wrist joint. The fracture healed in due time, leaving a slight deformity, but not such as to interfere with her work. She was considerably shaken up and shocked and suffered the usual pain and inconvenience attending such accidents. The jury and the trial judge saw plaintiff and heard three physicians testify as to the injuries and the results. The award, we think, is not out of line with those usually made in such cases and we shall not disturb it.

For the reasons assigned the judgment appealed from is affirmed with all costs.


author: LeBLANC, J. ELLIOTT, J.

text:
    No. 635
    First Circuit
    O’BANION v. WILLIS ET AL.
    (June 30, 1930. Opinion and Decree.)
    (October 7, 1930. Rehearing Refused.)
    (December 1, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellee.
    D. D. Newman,- of Leesville, attorney for defendants, appellants.
   LeBLANC, J.

Plaintiff sues the two defendants as indorsers on a promissory note of $150 signed and executed by J. E. Willis. The note is attached to the petition and annexed thereto as - part of same. It is dated Leesville, La., January 1, 1927, is payable one year after date to the order of plaintiff, and bears interest at the rate of 10 per cent per annum, and stipulates that an additional 10 per cent shall be paid as attorney’s fees for collection, if not paid when due. Judgment is prayed for the full amount of the note, with 8 per cent interest from January 1, 1927, and 10 per cent additional as attorney’s fees.

The defendants answer by averring that they were indorsers on a certain note such as described in the petition, but allege further that the 10 per cent interest stipulated is usurious, null and void. The defense of usury, however, is not urged. The answer further declares that at the time the note became due the defendants instructed the holder to proceed to collect from the maker, having good reasons for so doing, but that the latter did not follow their instruction, simply collected the interest, and extended payment for a period of one year, without either their knowledge or consent. His action, they allege, discharged them from any liability which may have existed as sureties on the note.

The district court rendered judgment in favor of the plaintiff in the sum of $150, less the sum of $30 paid on said amount, with 8 per cent interest from January 1, 1927, and 10 per cent attorney’s fees. The defendants have appealed.

Two questions present themselves: First, was there an extension granted to the maker of the note and, second, if there was, did the defendants consent to it, for, if they did not, the extension given without their consent had the effect of discharging them from their obligation?

“The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.” Revised Civil Code, article 3063.

It seems to be well settled now that, in order to constitute an extension of the terms of payment of the obligation which would release the sureties, there must have been an agreement between the obligor and the obligee based on a sufficient consideration, by which the obligee has precluded himself from taking action against the obligor during the period of the extension. Such agreement, if not reduced to writing between the parties or made in a manner equally as positive and definite, can be implied from their actions and the circumstances attending the transaction between them.

In this case, the evidence discloses that both before and after the note was due one of the defendants, Dr. Willis, urged the plaintiff to collect the note, as both he and his co-indorser were aware that the maker was soon to leave the state and the jurisdiction of the court, and they wanted to protect themselves in case it became necessary for them to do so. ' It was only after the maturity of the note that the plaintiff accepted $30 from the maker in part payment. It is true that, in answer to the question whether or not he granted additional time within which to pay the balance, he says he did not, but he qualifies his denial by saying:

“I accepted the $30.00 payment on the note and him promising to pay me in full as soon as he could, in thirty or sixty days, he said he would pay the balance of the principal.”

This answer is then followed by another question whether or not he accepted the $30 payment on those conditions, to which he answers:

“Yes sir, he paid me $30.00 after I reported to Dr. Willis that the note was unpaid and he said ‘I’ll pay you the rest just as soon as I can, in thirty or sixty days I’ll take up the rest.’ ”

Again we find him saying, in relating a further conversation he had with Dr. Willis:

“I went back and told Dr. Willis he had paid $30.00 on it and agreed to pay the rest in thirty or sixty days.”

Surely there is sufficient evidence, coming from the testimony of the plaintiff himself, to justify the conclusion that there was a meeting of the minds of the two parties which constituted, if not an express, at least an implied, agreement between them that the time fixed for the payment of the note had been extended for a period of at least thirty days. Was-that agreement supported by a consideration? We think it was. The payment by the maker of the note and the acceptance by the holder of the $30 was the consideration, without which it is reasonably certain that there would have been no extension granted by the holder. Likewise there would have been no payment of the $30 by the maker without the promise of the holder to extend. If, as is generally held, the payment of interest is a sufficient consideration for the extension of an obligation, a fortiori, the payment of a substantial amount over and above the amount of interest due should also constitute a valid consideration, for, as a matter of law, from the amount paid on account the interest which is due is the first thing credited on the note.

“The debtor of a debt, which bears interest or produces rents, can not, without the consent of the creditor, impute to the reduction of the capital any payment he may make, when there is interest or rent due.
“Every payment which does not extinguish both the principal and the interest, must be imputed first to the payment of the interest.” Revised Civil Code, article 2164.

The agreement between the maker and the holder of the note in this case was not the mere gratuitous indulgence or forbearance on the part of the holder not to force collection without fixing a definite period and without the giving of any consideration, as we find was the case in some decisions, notably John M. Parker & Co. v. Guillot et al., 118 La. 223, 42 So. 782, and cases therein cited, but it was a valid and binding agreement during the life of whicn plaintiff had precluded himself from suing the maker of the note. As such was the situation, if either of the sureties had paid the holder after the part payment had been made and the extension granted, he could have exercised no greater right than the holder of the note, and would have been successfully met' by the same plea of prematurity on the part of the maker. The payee, being the absolute owner ’ of the note, may enter into the agreement of extension either before or after maturity, and the surety is not in a position to protest, but at the same time he cannot without the concurrence of the surety make any agreement to the prejudice of the latter.

“There is no obligation of active diligence, in the holder of a note, to sue the maker or any prior endorser, and he may forbear to sue as long as he pleases; but he must not agree to give time, so as to preclude himself from, suing him, and suspend his remedy against him to the prejudice of the endorser. Chitty, 371.
“The holder of the note, who intends resorting against his endorser, must retain the faculty, on receiving his payment from the latter, to transfer him all his rights, absolutely unimpaired, against the maker.
“By doing an act which impairs this faculty, the recourse against the endorser is forfeited, and no circumstance can restore it without the endorser’s concurrence.” Millaudon v. Arnous, 3 Mart. (N. S.) 596.”

This brings us now to the next question in the case: Did the sureties consent to the extension granted by the payee? It is not difficult to dispose of this point, because the evidence shows that, not only they did not consent to it, but there is serious doubt that they knew anything about it. They both testify that tney could not have consented to the extension, as they had no knowledge of it, and we find no contradiction of their testimony in the record. In the absence of any consent to or concurrence on their part in the agreement of extension, they are discharged from liability.

We find in Freeman v. Profilet, 11 Eob. 33, a case which is very similar in almost every respect to the one here presented. Because we find the following language in the opinion so pertinent, we quote at length:

“It seems evident from the facts shown that the plaintiff, on receiving a payment of $2,000 from the drawer of the draft sued on, agreed and consented to give him further time to pay the balance. The prolongation of such time was to be extended until the crop of the next season was realized, that is to say, about one year longer; and this consent to wait one year was given without consulting the defendant. It cannot be doubted that the plaintiff was bound by- his agreement, as his consent had been given in consequence of the payment; and that if he had sued Lapice before the expiration on the time allowed, the latter would have successfully opposed to him the exception, that the suit was premature. The payment of nearly one-half of the claim made by a man who appears at that time to have been greatly involved, who had his residence in another State, or at least transacted his business there, and against whom a- suit would' not have been available by a man who, perhaps, from the' procrastination of judicial proceedings from one State to another, would have been enabled to delay the final collection of the claim for a number of years, was, in our opinion, a sufficiently valuable consideration for the prolongation of time granted to him for the payment of the balance. The object of the plaintiff in giving the delay, was clearly to receive the $2000 offered by the drawer — to obtain his share of the money which the debtor had raised and intended to divide among his creditors; and as we may fairly suppose that he would not have granted him any further time to pay the debt, if he had not been informed that a payment of a large portion thereof was to be made if he would allow the delay, it results necessarily that such delay was given in consequence and in consideration of the partial payment, and that the plaintiff was bound to wait until its expiration. We have repeatedly held that if a creditor, by giving a further delay to pay a debt, enters into such an agreement as will disable him from suing the principal debtor, the surety will be discharged; and that the giving further time to the drawer of a note, without the assent to the other parties thereto, has the effect of discharging the latter from liability.”

We feel satisfied that the law of this case can be applied in the case before us for consideration in favor of the defendants, and that they are entitled to a reversal of the judgment rendered against them in the district court.

For- the foregoing reasons, it is now ordered that the judgment of the lower court be, and the same is hereby, annulled, set aside, and reversed, and it is further ordered that there be judgment in favor of the defendants and against the plaintiff dismissing his suit at his cost in both courts.

ELLIOTT, J.

(dissenting). I think it a proper deduction, from what J. L. O’Banion says, that, when J. E. Willis paid him $30, promising at the same time to pay the balance due on the note within thirty or sixty days, Willis understood from plaintiff that plaintiff would in consideration of the payment wait on him for thirty or sixty days for the balance, that such was the tacit understanding between them. But I think the delay which it was understood the maker was to have amounted to nothing more than forbearance; that the plaintiff could have sued if he had been so disposed, and, if the indorsers had paid the note, they could have also proceeded against the maker to compel him to recoup them for the amount thus paid on his account.

The $30 was paid as a credit on the note; there was no actual consideration for an extension. Clause 6, sec. 120, Act No. 64 of 1904, which provides: “By any agreement binding upon the holder to extend the time of payment,” is the law of the present case, and not Revised Civil, Code, article 3063, on the subject of suretyship. The Act No. 64 of 1904 is the common law or general mercantile law on the subject of bills and notes; and under which an agreement to extend the time of payment is not binding on a' holder, unless a consideration is received for the extension.

The authorities on which the majority of the court depend are old cases and in conflict with cases also old and also with later jurisprudence on the subject.

In Dubuch v. Goudchaux, 6 La. Ann. 780, jurisprudence on the subject was reviewed, conflicting authorities overruled, and the principles announced in the cases Huie v. Bailey, 16 La. 213, 35 Am. Dec. 214, and Frazier Dick, 5 Rob. 249, were reaffirmed.

There are two cases, both reported in the first annual, which I think must be looked on as superseded by the Dubuch case. The Dubuch case is in harmony with McLemore v. Powell, 12 Wheat. 554, 6 L. Ed. 726, and Purdy v. Forstall, 45 La. Ann. 814, 13, So. 95, and the latter case, Parker & Co. v. Guillot, 118 La. 223, 42 So. 782, in all of which a consideration for an extension was deemed necessary.

I find in R. C. L., subject “Bills and Notes,” that such is the rule in construing the law quoted, Act No. 64 of 1904, in the other states.

The indorsers, having enabled the maker to get credit, should not be discharged from their liability as indorsers unless the holder of the note does some act which has precluded him and has also precluded the indorsers from suing the maker for a specified time, and I do not think that such a preclusion exists without a consideration for same having been received.

The judgment appealed from is in my opinion correct, and should be affirmed. I therefore respectfully dissent.