text:
    No. 11,760.
    Richard H. Lea vs. Mrs. Sallie E. Hart, Tutrix.
    Services rendered to the grandfather of a minor, in the progress of a litigation, which resulted to the latter’s pecuniary benefit, places upon her a legal obligation to compensate the attorney at law who conducted them the quantum meruit value of same,
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Horace E. Upton and ií. H. Lea for Plaintiff, Appellee:
    The law imposes upon the grandfather the duty of taking charge of the tutorship, under the penalty of responsibility of losses, if he refuses. R. O. O. 268.
    “The nearest male relative of a minor being bound to take charge of the tutorship under the penalty of incurring damages, is entitled, in applying for the tutorship, to take at once such conservatory measures as are necessary for the protection of the minor’s property.” And the fees of counsel in such cases are not dependent on success. Succession of Walker, 32 An. 321; Lacey vs. Lanaux, 19 An. 423; 21 An. 17.
    Únder tutor's have the right to employ counsel to protect the interests of minors. R. O. O. 275 ; 5 An. 165.
    The rights and functions of an administrator or executor are intransmittible. It is a personal trust, the violation of which is ground for removal. And when the grandfather, an applicant for the tutorship, found the entire assets of the succession in the hands of a person unknown to the court, it was his duty to have them sequestered. R. C. O. 268; Succession of Townsend, 36 An. 538, and authorities there cited; Succession of Walker, 32 An. 321; 31 An. 74; Hennen’s Digest, 1388, No. 13; 36 An. 414.
    “ The under tutor is not personally liable for expenses of litigation in * * * proceedings on opposition to the tutor’s account of administration unless he acted in bad faith.” 19 An. 153.

      Where a life -usufruct claimed upon property valued at forty-five thousand dollars, the expectancy of said life being thirty years, is defeated, the amount of the recovery should be considered equal to the full value of the property.
    An attorney’s fee is contingent when its amount is dependent upon the amount of the fund from which it is to be paid. And a contingent fee is invariably larger than one not dependent upon the success of the litigation. 31 An. 130.
    The character of the services, the interest involved and the ability of the client to pay, are factors to be considered in assessing an attorney’s fee. 30 An. 336; 31 An. 130; 45 An. 194.
    “ A fee for services rendered under the eye of the court will not be reduced unless manifestly excessive.” Interdiction of Leech, 45 An. 194.

      Solomon Wolff for Appellant:
    The attorney of an applicant for the tutorship of a minor is not entitled to compensation out of the estate of the minor, whether the application fail or succeed. Sue. Gorjon, 10 R. 541; Sue. of Florance, 36 An. 305.
    Such services are rendered for the benefit of the applicant, and even if the minor benefits by those services, it is a benefit incidental to that sought to be obtained for the applicant, and the minor owes no fee therefor. Michon vs. Gravier, 11 An. 596; Wailes et al. vs. Sue. of Brown, 27 An. 411; Oooley vs. Oecile, 8 An. 51.
    The opposition to the adoption of the minor by Mrs. Hart was, or, at least, might have proven detrimental to the interests of the minor, and no fee can be asked from the minor for such .opposition. Renshaw vs. Stafford, 34 An. 1140.
    The sequestration proceedings were ill advised, illegal and unnecessary; they might have proven extremely detrimental to Che interests of all, and plaintiff is not entitled to compensation for provoking them. Poche vs. Creditors, 8 An. 66.
    No compensation is due for the alleged recovery of the usufruct, as it had been renounced; at best, the obligation assumed by the tutrix made its recovery of small and extremely doubtful value to the minor.
    The court will, itself, fix the value of professional services upon an examination of the entire record, regardless of the opinion of witnesses. Randolph, Singleton & Browne vs. Carrol, 27 An. 467.
    An attorney will be concluded by a claim presented for professional services, although payment be refused. Sue. of Flower, 3 An. 292.
    Argued and submitted, April 22, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 17, 1895.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to recover of the defendantt he sum of five thousand dollars, the quantum, meruit value of services which he renderedto her ward, as attorney at law in the matter of the succession of her father — she being the sole surviving legal and forced heir of the deceased, and said services having enured to her benefit.

His claim mainly rests upon the hypothesis that: (1) He was instrumental in recovering for the minor an allowance of one thousand six hundred and twenty-five dollars, on the amount of the share which was coming to her from a former community; (2) in striking down and ridding the realty which was bequeathed to her by her father’s will, worth forty-five thousand dollars,of a lifetime usufruct which was asserted by the surviving widow of the deceased — the stepmother of the minor.

The defence is .threefold: (1) That the services of the grandfather of the minor, whom plaintiff represented, were ex gratia under the law, and placed upon the minor no legal obligation to pay for the services rendered by the plaintiff; (2) that the services rendered by the plaintiff were not beneficial to the minor, and accomplished nothing, of themselves, which would not have otherwise resulted; (3) that the amount claimed is excessive and oppressive.

On the trial these questions were thoroughly traversed by the litigants, and testimony pro and con adduced; and judgment was pronounced in favor of the plaintiff, and the defendant has appealed.

Junius Hart died on the 20th of September, 1898, and his estate was placed under administration on the 9th of October following. He left a will, by the terms of which, Lena Oecile Hart, a minor child and sole surviving forced heir, having been born of the second marriage, was bequeathed the property known as No. 191 Oanal street, at the corner of Burgundy street, in the city of New Orleans, and his surviving widow, being of the third marriage, was bequeathed the balance of his estate and the usufruct of his share of the community property.

The will contained the further stipulation that the surviving widow should be the executrix, and one Washington P. Simpson tutor for the minor, and Dr. John J. Johnson alternate.

An estimative inventory was made and disclosed that the decedent’s estate aggregated one hundred and twenty-four thousand four hundred and two dollars and forty-three cents in value; and of this, fifty-four thousand five hundred dollars was attributed to real estate, and sixty-nine thousand nine hundred and two dollars and forty-three cents to the movable effects of various kinds.

The judge declined to confirm the appointment of Simpson as testamentary tutor to the minor, because he was a citizen of Georgia; and thereupon Wm. A. Arnold, as paternal grandfather of the child, acting on the advice of plaintiff as his counsel, presented a petition to the court praying to be appointed tutor, reciting the action of the court in failing to confirm the appointment of Simpson, and further alleging that Dr. Johnson, the alternate testamentary nominee for the tutorship, was likewise disqualified, being a citizen of Mississippi.

Soon afterward, Dr. Johnson appeared in court, petitioning for his confirmation as dative tutor, alleging himself to be a citizen of Louisiana.

To this application the grandfather filed an opposition, and prevented the issuance of letters of tutorship to him.

Subsequently the grandfather instituted proceedings and obtained a judicial sequestration of all the movable effects of the estate of the deceased, and had them taken by the sheriff out of the possession of one Julius Winter, to whom they had then been only recently confided by the surviving widow, under a power of attorney which conferred upon him unlimited powers of administration, and which specially authorized him “ to do and perform such acts connected with the administration of the estate of the decedent, as it was only competent for her as executrix, personally to perform,” etc. — the allegation of his petition being to the effect “that the said power of attorney was and is * * * intended to vest the said Juilus Winter with full authority to administer the affairs of the succession whether the executrix was present or absent.”

It was also alleged in the grandfather’s opposition to the appointment and confirmation of Dr. Johnson as tutor, that he had contemporaneously executed a similar procuration to Julius Winter, containing broader and more extensive powers.

About the same time, Simpson obtained an order of appeal from the decree of the judge, refusing to appoint him tutor.

A little later, the property sequestered was bonded and released to the surviving widow.

Subsequently, one John Booth made application to be appointed tutor to the minor, the petition having been signed by the same counsel who had appeared for the widow in the proceedings above related. Nothing came of all these applications, as the grandfather furnished the requisite bond and security, and his appointment was confirmed.

In the meantime the widow moved to dissolve the sequestration without avail, and she thereupon filed her answer, setting up claim that all the estate was property of the late community between herself and her deceased husband, except the premises, 191 on Canal street, and that, although it was purchased prior to their marriage, and on that account an asset of a previous community, yet same was paid for to the extent of twenty thousand dollars out of funds of the last community of which she was a member, and repaired also to the extent of eighteen thousand dollars, likewise with such community funds.

This claim in her answer was, in effect, to charge the separate estate of the deceased, that is, to say, the premises, 191 Oanal street, which had been bequeathed to the minor with a debt of thirty-eight thousand dollars in favor of the last community, of which the widow was owner of one-half, and usufructuary by will of the remaining one-half during the period of her natural life.

Soon afterward the widow petitioned to the court to allow her to adopt the minor, and to that end prayed for the appointment of a tutor ad hoc to consider her application. This appointment was opposed by the grandfather on various grounds, but his opposition proved of no avail, and the appointment was made, the adoption of the minor approved and consented. to, and the tutorship of the grandfather terminated.

With the termination of the tutorship the sequestration proceedings ended, and the widow resumed the administration of the estate.

A few months later the widow filed her final account as executrix, on which she placed the minor as a creditor for the sum of five thousand dollars, as the net amount of cash due her from the former community, and as the owner of the premises 191 Canal street, subject to her testamentary usufruct, making claim for herself that she was, by the terms of the will, “ constituted residuary legatee and usufructuary for life of the aforesaid property bequeathed to the minor.”

The grandfather having been appointed and confirmed undertutor, opposed the account, claiming for the minor interest on its inheritance from its mother; that the sums paid on the property, 191 Oanal street, during the existence of the last community, were in-fact paid out of her father’s separate estate acquired before his last marriage; and that the widow, as residuary legatee, was not entitled to any greater sum than one-third of the deceased’s separate estate, and under no condition to the usufruct of the property beyond the child’s majority.

After quite a protracted trial there was a judgment sustaining the opposition; (1) so as to allow the minor interest on the five thousand dollars inheritance; (2) so as to disallow the widow’s claim to usufruct upon the property which was bequeathed to the minor from the separate estate of the deceased.

It is upon this statement that the plaintiff predicates his claim for services as an attorney representing the interests of the minor in this protracted and complicated litigation.

In his reasons for judgment we find a carefully digested summary of the foregoing proceedings, coupled with his observations upon their progress and result, of all of which he was personally cognizant, same having been conducted in his court, and immediately under his supervision.

And in this connection we can not as well state the reasons which influenced the mind of the judge a quo, as he has stated them herein, and we will append the following extract in place of observations of our own, viz.:

“By the terms of Junius Hart’s will the minor was to get the real estate on Oanal street, and the widow was to get the balance of the estate, as also the usufruct of the community property.

“ The estate owed the minor five thousand dollars, being the amount inherited from her by her deceased mother, together with interest thereon from the date of the mother’s death. I believe there was never any question as to the obligation for the principal amount, but the obligation for the interest was not recognized until the claim therefor was made by the plaintiff herein on behalf of the minor.

“ It was claimed by the widow that the usufruct conferred by the will included the real estate on Canal street, and this claim was contested on behalf of the minor by the grandfather, represented by the plaintiff, with the result that the minor was adjudged to be entitled to the usufruct as well as the ownership of said property, which is valued at forty-five thousand dollars. It is said that the particular point upon which the judgment in question was predicated was not suggested by the plaintiff. Whether this be so or not, it was the opposition filed by him which necessitated the investigation by which the attention of the court was attracted to the fact that the will gave the widow the usufruct of the community property, whilst the property in question was bought, though not entirely paid for, before the last marriage. In any event the opposition must have been good upon the grounds taken, in so far as to reduce the usufruct, in order that it might not infringe on the legitime of the minor.

“ In the final account of the widow as executrix, it is said that the community between herself and her late .husband should be held as of the value of ninety thousand two hundred and fifty-one dollars and one cent. In the judgment on that account, ordering its amendment, the value of said community is fixed at seventy-six thousand eight hundred and seventy-nine dollars and two cents. And whereas, by the terms of said account, the minor was to receive the five thousand dollars due her from her mother’s estate, without interest, and the naked ownership of the real estate on Oanal street, subject to the usufruct, for life of the widow, by the terms of said judgment she gets said five thousand dollars, with interest to the amount of one thousand six hundred and twenty-five dollars and the usufruct as well as the ownership of said real estate. The intervention by the maternal grandfather of the minor in the succession proceedings, for the purpose of requiring that the minor be provided with a tutor agreeable to the law of the State was not only authorized, but .obligatory. And when, by act of the executrix, the movable effects of the succession in which the minor’s fortone was involved, was left in a position which the law did not contemplate or authorize, it was his duty to take such steps as he considered necessary for its protection. And it is no answer to this proposition to say that the executrix considered the property safe, since it is to be presumed that if the law-maker had so considered the other and different provisions contained in the law for its security would not have been made. That it was the duty of the grandfather to claim the interest due to the minor, and to claim the usufruct of the real estate, there can be no question. And if these different services were rendered'in the discharge of a duty resting upon the grandfather, and that duty could only be discharged by the aid of an attorney, and was so discharged for the benefit and in the interest of the minor, there can be no ground upon which to rest the defence set up in the answer that the minor owes said attorney nothing. The only question is how much the minor owes ? And this question is to be determined by the character of the services, considered in connection with the value of the interest involved.

“ The character of the services has been mentioned, they extented over a period of about eight months, during which there wass carcely a day upon which the plaintiff was not called on to give some portion of his time and attention to the affairs of the defeudant, and there was not a moment during which his mind was relieved of the responsibility which developed upon him. The outcome and net result to the minor of his services is, that instead of having five thousand dollars in cish, and the naked ownership of a piece of real estate, valued at forty-five thousand dollars, but encumbered with a usufruct in favor of another person for a life estimated at thirty years, ¿he gets six thousand six hundred and twenty-five dollars in cash, and the usufruct of said property at once, and from this time forward, free of all encumbrance.”

His conclusion was that the services were valuable to the minor, and that same placed upon her a legal obligation to compensate the plaintiff the quantum meruit value of the services he rendered.

It is quite evident from a casual inspection of the proceedings we have outlined, that the surviving widow and stepmother of the minor resorted to every means in her power to improve her own situation, by increasing the amount of the community at the expense of the separate estate of the minor; and sought to tax the separate property which was bequeathed to the minor to the extend of thirty-eight thousand dollars, and to enlarge her testamentary usufruct so as to cover it, and by so doing, control and utilize its revenues during her lifetime.

Notwithstanding she adopted the minor by regular judicial proceedings, this was only done after her means of defence were apparently exhausted, which gives rise to the just apprehension that she perceived something in such a course that might be turned to her advantage; and this, we find in her final account, which the grandfather of the minor as undertutor felt bound to oppose, and whose opposition was fruitful of good results to the minor.

On the proof adduced the judge a quo fixed the net income of the minor’s property at two thousand three hundred and fifty dollars, and the widow’s expectation of life at thirty years, basing his estimate upon standard life tables.

In other words, at that rate the minor has a reasonable prospect of realizing from that source alone sixty-seven thousand five hundred dollars, approximately.

On’ that question considerable discussion has been indulged in, with the object of showing the inaccuracy of the judge’s estimate. But, in our opinion, a nice calculation need-not be made, as in this case the question is of the value of the plaintiff’s services, and an approximate valuation of the minor’s property is all that is necessary or useful for that purpose. And based on such valuation, it appears that forty thousand dollars is about the present cash value of the use of the real estate of the minor on which the plaintiff’s fee is to be calculated, independently of the five thousand dollars that is coming to her from her mother’s estate; and to this extent, at least, the minor has been benefited by the litigation which was advised and conducted by the plaintiff.

The amount claimed by the plaintiff was allowed by the judge a quo, in whose court the whole of the litigation was prosecuted; and a careful examination of this case has only served to confirm his conclusions as both just and conscientious, but we think the amount allowed is excessive.

The rule with regard to the allowance of attorneys’ fees in any given case is, in our opinion, very correctly and concisely stated in Breaux, Fenner & Hall vs. Francke, 30 An. 336, in these words, viz.:

“ Two factors enter into the calculation of fees for services such as those rendered by the plaintiffs. One is the extent and kind of service, and the labor incident to its rendition, and the other is the ability of the party who is liable to pay.”

Much the same rule was stated in Succession of Linton, 31 An. 130, and in Succession of Mager, 12 Rob. 413. It was said that “ the labor of an attorney * * * ought to be rewarded according to its nature, extent and degree of skill and care it demands.”

In a case somewhat similar to this, the court said:

“We do not understand that the compensation of counsel in such case depends upon success, and as the undertutor receives no compensation, and has no direct pecuniary interest in the result, we think he can not be held liable In case of failure, unless, indeed, it appear that he acted in bad faith. * * *

“Upon an examination of the questions properly involved in the pleadings, under the law applicable to such proceedings, the amount of the legal labor required, and the opinion of two district judges before whom the proceedings were conducted, we have come to the conclusion that a fee of one thousand dollars each will be a fair and just reward to the plaintiffs, to be paid by the minor.” Lacey vs. Lanaux, Tutrix, 19 An. 153; Succession of Samuels, 21 An. 15, is to same effect.

In the interdiction of Leech, 45 An. 195, this court adopted the rule for the admeasurement of the fees of counsel which was estab - lished in Breaux, Fenner & Hall vs. Francke, supra, that “ the knowledge of the attorney applied to the suit; his responsibility and labor are criteria of value in fixing his fee; and that a fee for services rendered under the eye of the court, will not be reduced unless manifestly excessive.”

We have examined Cooley vs. Cecile, 8 An. 51; Wailes vs. Succession of Brown, 27 An. 411, and Michon vs. Gravier, 11 An. 596, which are cited in the brief of defendant’s counsel, and find them inapplicable to this.ease. Same is true of Watson vs. Ledoux, 8 An. 68.

Under the facts of this case, as applied to the authorities cited, we are of opinion that the amount claimed is excessive, and that the judgment should be reduced to fifteen hundred dollars.

It is therefore ordered and decreed that the judgment appealed from be reduced to fifteen hundred dollars, and that, as thus amended, the same be affirmed at appellee’s cost.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,858.
    Succession of Dr. Eugene Rabasse.
    The heir of the executor is not bound to pay the mortgage debt placed by the tea tator on the thing bequeathed,», e. the special mortgage, unless that payment by the heir or executor is directed by the will. Civil Code, Art. 1638,1Í41,1142,1443 1444; 3 An. 175; 34 An. 709; 43 An. 144.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      L. de Porter for Plaintiff in Rule, Appellee, cites:
    O. C. 1430, 1431, 1642, 1440, 1434, 1634, 1636; 5 An. 199; 12 An. 5; 8 An. 142; Marcadé, Yol. 4, Donations et Testaments, pp. 97, 102, 103; Marcadé, Vol. 3, des Successions, pp. 259, 270, 271 and 94; Code Napoleon, Arts. 871, 874, 1020, 1024, 1018; Art. 226 Code of 1808; Art. 1383 Code of 1825.

      Henry Ohiappella, J. Numa Augustin, and Theodule Buis son for Appellants, cite:
    R. C. C. 1638, 1440, 1441, 1442, 1443, 1642, 1430, 1434, 2161, 3410; C. N. 871, 873, 874, 1020; Succession of Sinnott, 3 An. 175; Succession of Coste, 43 An. 144; Eskridge vs. Farrar, 34 An. 709; 3 Chabot Successions, 274,242; Rogron Code Annoté, pp. 211, 213,249; Paillet, pp. 341, 425; 2 Lacantinerie, pp. 425,430; 1 Boileux, 659, 660; Favard-Langlade, 406, 274; 2 Troplong Testaments, 556, 178; 16 Merlin Réportoire, 816, 512; 1 Grenier Testament, 177, 561; Ooin-Delisle Testaments, 477; Code Cvili Annoté par Lahaye, 376, 459.
    At the trial His Honor the Chief Justice propounded to counsel whether the work and report of the jurists who framed the Code of 1825 had been consulted, and how .far it threw light on the apparent inconsistency between Art. 1434 R. C. C. and the four articles 1440-1443 R. O. C. They have been fortunate in finding a copy in the French language of the “ Additions and Amendments to the Civil Code of Louisiana” proposed by the commissioners in 1824, the greater part of which were incorporated in the Code of 1825.

      It has been said in argument that onr present Articles 1434 and 1638 correspond to Articles 874 and 1020 respectively of the Oode Napoleon. They are also found in our Oode of 1808, being Art. 226, at page 200, under the heading “ Payment of Debts,” and Art. 146, at page 240, under the heading “Legacies” — the phraseology not differing to any great extent. It is well known that Arts. 1440, 1441, 1442,1443 are new articles inserted in the Oode of 1825, and not existing in either the Oode of 1808 or in the Oode Napoleon. The idea readily suggests itself that the framers of the Code intended to inject into our legislation, in emphatic and clear language, the principle that the particular legatee should take the legacy cumonere and without recourse against the heirs. They were led to this course because they had found the French commentators puzzled as to the proper mode of reconciling Arts. 874 and 1020 of the Oode Napoleon. They thought that they had set the matter at rest. But the doomed Art. 1434, like Banquo’s ghost, now rises again from its unsealed grave to disturb our 'councils.
    What is the language used by these eminent jurists in their report to the Legislature? After suggesting that Art. 228 of the Oóde of 1808 (which is our Art. 1436 R. O. O.) be followed by seven new articles (our present Arts. 1437, 1438, 1439, 1440, 1441, 1442, 1443), they add by way of note or remark as follows:
    “The dispositions contained in these articles are amendments to Art. 226 of the Oode, which we have suppressed above. Such article in granting to the particular legatee, who pays by reason of the hypothecary action, recourse against the heirs of the testator, is in contradiction with Art. 146 of Donations and Testaments, which says that the heirs are not bound to discharge the thing bequeathed of the incumbrance placed upon it by the testator. We have thought proper to correct this disposition, in conformity with the opinion of the best authors, who would have it that in such cases the legatee has no recourse against the heirs, but on the contrary, the latter may have recourse against him, whenever they would discharge the mortgage subject to which was the bequeathed immovable.” (Translation by the counsel.)
    Amendments to Oode of Louisiana, pp. 196, 197.
    If thus appears from the lips of these compilers or framers of our laws that they had suppressed Art. 226 of the Oode of 1808 (R. C. C. 1434.) Yet it found its way again in our Code of 1825— alongside of its new neighbors and opponents — as if it had not been abrogated. Was this an oversight and a clerical error? Or will it be said that the Legislature disregarded and repudiated the proposed innovation suggested by the jurists? How then could' the Legislature have agreed to adopt their recommendations in regard to the four new articles to be inserted in our Code. Then comes the codification of 1870 with all these articles re-enacted totidem verbis.

    An explanation which is plausible would limit the application of Arts. 1440, 1443, to particular legatees who are not heirs of the deceased testator; and so of Art. 1638. And on the other hand, Art. 1434 and the one preceding it, as well as the five succeeding it, would have reference to particular legatees who are also heirs of the testator. The reason of this distinction is to be found in the equality which must exist between co-heirs. It should be here remarked that Art. 1440 — the first of the four articles treating of legatees who are not also heirs — says: ‘ ‘ If a property which is bequeathed to any one has been mortgaged,” etc. How different is the language of R. C. C. 1433, which renders the heir bound to pay the whole debt by the hypothecary action, but reserves to him “ recourse against his co-heirs, or the other successors standing in their place, for the amount which he has been bound to pay for the discharge of the mortgage debt.”
    In our former brief we have adverted to the difference in the phraseology of Art. 1434 and of Arts. 1441 et seg. — the former of which speaks of subrogation, while the latter use the word recourse. If subrogation carries with it recourse, how could one article give to the particular legatee what the other articles refuse him? What the motive of the Legislator was in not using the same expressions, if they were synonymous, remains a mystery to us.
    In regard to the weight to be given to Art. 1642 and to the principle that particular legatees are not liable for succession debts, why should it be contended that the provisions of Arts. 1441, 1442 can not be reconciled therewith? Does not Art. 1642 prescribe that the particular legatee shall be liable to the action of mortgage on the part of the creditors of the succession? Why should he not, in such a case, be refused all recourse against the heirs, as Art. 1441 ordains?
    This is not a matter of paying succession debts; it is more properly the receiving of a particular legacy cum onere, as would be the case of a usufruct. Indeed, the article itself furnishes the explanation; because by receiving the legacy he is considered as having received it with the incumbrances with which it was charged. R. O. O. 1441.
    And to the same effect are the words contained in the following article: “To be reimbursed (the heirs) for having discharged and disengaged the object bequeathed, which they were not obliged to do. R. O. O. 1442.
    Argued and submitted, May 24, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was deliverd by

Miller, J.

The question in this ease is whether the special legatee of the immovable is bound for the debt contracted by the testator, subsequent to the will, and which he secures by mortgage on the immovable. The judgment of the lower court made the heirs and executors liable.

The articles of our code like those corresponding in the Napoleon •Code seem to exhibit some conflict. The articles, 1688, 1440, 1441, 1442 and 1444 all tend to pass the property to the special legatee subject to the mortgage, that is the executor, heir or universal legetee, is to deliver the immovable in the condition it is when the testator’s death occurs, and is not bound to discharge the mortgage debt. It is the explicit declaration of the first of these articles that, if prior to the testament or subsequently, the testator mortgages the subject of the special legacy, whether for his own or for the debt of another, the heir or universal legatee or executor is not bound to discharge the incumbrance, unless required by an express disposition of the testator. This article is found in that part of the Oode that treats of particular legacies, the rights of the legatee and the obligations of the executor and heirs of the testator, with respect to the legacy. Under one of the subdivisions of the rubric of the Oode, “ of the payment of the debts of the succession,” the four articles, 1440 to 1444, declare the liability of the particular legatee to the hypothecary action of the creditor holding the mortgage on the property bequeathed, reserving to the legatee the right to abandon. If abandoned, there shall be no recourse of the legatee on the heir, for it is declared the legatee received the property subject to the incumbrance with which it is charged; if, on the contrary, the heir pays the mortgage, he shall recover from the special legatee for disengaging the thing bequeathed, which he was not obliged to do; and finally, if the mortgage was granted by the testator for the debt of a third person, in that case the articles confer on the legatee the right to recover from the third person the same as if the testator could if he had made that payment. The articles 1441 to 1444 were additions to the Code of 1825.

The jurists who reported the code of 1825 thuoght these four articles, 1441 to 1444, essential to settle the doubt they conceived to exist as to the non-liability of the heirs for the mortgage debt od the property specially bequeathed. That doubt they concieved to arise from Art. 226 of the Code of 1808 declaring the particular legatee paying the mortgage debt, should be subrogated to the creditor’s rights against the heir. The jurists advised the suppression of that article. But notwithstanding the recommendation the article found its way into the code of 1825 as Art. 1383, now 1434, of the Revised Code. Along with it, however, are the Arts. 1441 to 1444. It may well be that the insertion of these four consecutive articles, all distinctly affirming the liability of the special legatee, or at least of the property bequeathed for the mortgage debt, was deemed entirely sufficient to preclude any future doubt on that point. In that opinion we concur. The added articles are couched in the plainest language. They affirm the liability of the property the subject of the special legacy, for the mortgage debt resting on it. They expressly deny any such liability of the heir, and if he is compelled to pay, gives him an action to recover from the special legatee. This language, enough in itself, is aided by the light we have of the purpose of the additions to the code.

The jurists of 1825 had reason to suggest the divergent views of the French commentators on the articles in the Napoleon Code on the subject. Art. 1020 of that Code, corresponding with 163 of our Code, announced that the particular legatee was bound to pay the mortgaged debt on the thing bequeathed, unless the testator directed otherwise. But Art. 874 of the Napoleon Oode, like our Art. 1434, subrogated the legatee, who paid to the creditor rights against the heir. In favor of the liability of the heir were Marcade, 4th Vol. 95; Toullier, 5th Vol. 538; Ohabot and Laurent may be added, 14th Vol. 97. The jurists were impressed with the better opinion as they esteemed it, that unless charged by the testator there was no such liability of the heir as implied in Art. 874 of the Napoleon Oode. The discussion by some of the French jurists reconciles the seeming conflict between the articles of the Napoleon Oode, by supposing that the Art. 874, corresponding with our Art. 1434, applies only to general mortgages. If the special legatee pays the mortgage bearing on all the property of the succession, there is in the subrogation against the heir conferred in that case no inconsistency with the article that burdens only the property specially mortgaged with the mortgage upon it. Another and obvious mode of harmonizing the articles is that thus expressed : II faut entendre que Particle 874 s’applique aú cas ou Pheritier a ete charger par le testateur de fournir la chose leguee franche et quitte de toutes charges et Phypotheque, et dans tout autre cas Particle 1020 (i. e., that frees the heir or executor from any liability for the special mortgage) met Pheritier a l’abri du reeours de legutaire.” Gilbert Code Anotes. Notes to Art. 1020. There is still another view cited from Gilbert, suggested in Paillet Manuel de droit Frangais. Notes on Arts. 1020 and 874. We think that even under the articles in the Napoleon Code, and those in our Code before the additions of 1825, admitted of full effect on the familiar rule of interpretation that assigns to each its scope and gives effect to all.

The discussion with us however must be deemed closed. If Arts. 1441 to 1444 of our Oode had been in the Code Napoleon, it is not conceivable that the discussion of the French commentators could have ever occurred. As the Code now stands, there can be, in our view, no doubt the heir or executor is not bound to pay the mortgage debt on the property the subject of the special legacy, unless required by the will. There is in this case no such requirement. It is to be observed that our jurisprudence, as far as it goes, affirms our conclusion. Succession of Sinnott, 3 An. 175; Succession of Coste, 43 An. 144; Eskridge vs. Farrar, 34 An. 709.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that there be and hereby is judgment in favor of defendants in rule, with costs.


author: Miller, J. Breaux, J.

text:
    No. 11,792.
    F. L. Blood et al. vs. Domingo Negrotto, Jr.
    The ease o£ Remick vs. Lang, ante, page 911, affirmed.

      Breaux, J., dissenting—The former owner having been divested of title, he was no longer concerned about the payment of taxes assumed by the purchaser at the tax sale. It was a matter in which the State alone had an interest, and only to the extent of the payment of the taxes assumed.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Frank L. Richardson and Fernán & Wall

       for Plaintiffs, Appellees.

      Farrar, Jonas & Fruttschnitt and J. Zach. Spearing for Defendant, Appellant:
    I.
    In view of the opinion of this court in Remick vs. Lang, we do not discuss the character of this action.
    II.
    The want of notice, pleaded as a ground of nullity of the tax title herein, is notice of the sale under Act 82 of 1884.
    No want of notice of the sale to the State is either alleged or proved.
    Plaintiff has no interest in attacking the sale under Act 82 of 1884. Breaux vs. Negrotto, 43 An. 432.
    III.
    .(a) All rights of redemption by the original owners of the property described in the petition were gone one year after the adjudication to the State. Remick vs. Lang seems to admit this. .'See Sec. 62 of Act 80 of 1888. See all tax laws since 1879. 'See Art. 210, Constitution of Louisiana.
    (6) After that year the original owner is as much a stranger to the title as any other citizen.

      IV.

      (а) The State being the absolute owner, in perfect ownership, of the property in dispute, sold it to Lake, who acquired a title perfect against all the world, and by this court specially declared to be perfect against the former owner. The title so acquired was one in fee simple, for a fixed price in cash, upon payment whereof he was entitled to a deed and to possession, subject, however to and with the promise on his part, to pay all taxes for 1880 and subsequent years. See Act 82 of 1884.
    Jurisprudence reviewed to prove foregoing proposition: State ex rel. Martinez vs. Tax Collector and City, 42 An. 677, et seq.; Breaux vs. Negrotto, 48 An. 427; State ex rel. Powers vs. Recorder of Mortgages, 45 An. 566; Reinach vs. Duplantier, 46 An. 161.
    (б) No time is fixed by law for the payment of the taxes of 1880 and subsequent years. Lake and those holding under him are therefore still entitled to make the payment as no putting in default has ever taken place. By payment the heirs of Blood may have been subrogated to the rights of the State to demand such payment. Great er rights they certainly did not acquire.
    (c) Upon the failure of Lake, or those holding under him, to pay the portion of the price payable in futuro, the State had ample remedies, to-wit:
    1. To collect her taxes, as she was doing in the Martinez case when she was enjoined, and as this court said she had a right to do; or •
    2. To rescind the sale for non-payment of price.
    (d) Neither of these rights has in any manner whatever passed to plaintiffs, nor are they trying to assert either of these rights.
    (e) Plaintiffs are strangers to the title, and trespassers.
    V.
    If the State remains the owner only to collect the taxes due; if the tax sale under Act 82 of 1884 is conclusive as against the former owner, as soon as the adjudication is completed and becomes equally conclusive as against the State as soon as the purchaser pays the taxes for 1'880 and subsequent years, all of which is held in Martinez case, then we submit that:
    Redemption does not create a new title; its only-effect is to remove the tax sale as an encumbrance or cloud on an otherwise clear title; it does not necessarily enure to the benefit of the party paying the money, but to the benefit of a pre-existing title.

      Hence, if Negrotto had a title against all the world except the State prior to the redemption from the taxes of 1880 and subsequent years, then plaintiffs by redeeming as to those taxes have perfected his title, if it needed perfecting. Oooley on Taxation, p. 368, par. 8; Black on Tax Titles, p. 252, Sec. 197; Gray vs. Ooan, 30 Iowa, 536; Gray vs. Ooan, 40 Iowa, 330; Cooper vs. Bushley, 72 Penn. Stat. 252.
    Argued and submitted, April 15, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Miller, J.

This case is not distinguishable fromRemick vs. Lang, recently decided, Ante, p. 914.

For the reasons given in that case it is ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.

Dissenting Opinion.

Breaux, J.

The purchaser, as required by Act 82 of 1884, assumed the taxes for 1880 and subsequent years.

He paid the taxes for which the property was sold and acquired an absolute right to the property.

The taxes assumed were not paid owing to some difference between the purchaser and the State tax collector regarding certain costs and charges.

The defendants (the purchasers at tax sale), were never placed in default, and the law fixed no time within which these taxes were to be paid.

The regularity of the adjudication to the State for the taxes is not questioned; legal advertisement was made and due notice given.

This being the case, the failure to pay the taxes assumed is not cause of itself of nullity of the tax title under which defendants hold possession.

The former owner had been by the proceedings regular in all respects divested of all interest in or title to the property.

He was no longer concerned about the payment of taxes assumed. It was a matter in which the State alone had an interest, and only to the extent of the payment of the taxes assumed.

Nevertheless, the former owner, who is now a third person, instituted this action to recover property he no longer owns. The action was not instituted to recover any, right of his own for he could have none, the time to redeem having long since elapsed; but to be decreed the owner because he had not paid the State taxes assumed in accordance with the terms of the act under which he bought.

In the Martinez case, 42 An. 777, it was decided that payment must be paid to the State for the taxes assumed. The question came up directly as to whether the purchaser should pay. It was not decided that the delay in matter of these taxes assumed had the effect of annulling a regular tax deed.

The State, through its collecting officers, had a right to recover her taxes, and to that right the court gave full recognition, not by applying the remedy never contemplated by law of absolute nullity to inure to the benefit of one no longer having any interest, but by ordering the sale of property for the payment of the taxes assumed.

Long after the time to redeem had elapsed, and therefore without any authority whatever, a certificate of redemption was issued to the defendants.

This redemption created no right and gave no title. No possible right to redeem exists after the lapse of the time fixed by statute. The auditor is absolutely without authority to issue a redemption certificate after one year.


author: Watkins, J.

text:
    No. 11,814.
    Elizabeth Reddy, Wife, vs. Charles V. Carroll, Husband.
    In case a trial is had and a judgment rendered in a suit for divorce with which is also coupled a rule for alimony, and the record leaves it in doubt whether the issue disposed of was the question of alimony or the merits, the purposes of justice will be best subserved by a reversal of the judgment and the remanding of the cause for a new trial.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      W. 8. Benedict for Plaintiff, Appellant.

      Mdse & Cahn for Defendant, Appellee.
    Argued and submitted, May 23, 1895.
    Opinion handed down, June 3, 1895.
    Rehearing refused, June 21, 1895.
   The opinion of the court was delivered by

Watkins, J.

This is an action for divorce a mensa et thoro, grounded upon abandonment by the husband.

During the progress of the suit plaintiff took a rule on the de - fendant to show cause why alimony of one hundred dollars per month should not be allowed her during the progress of the trial and the pendency of the suit. It is the supplement of suit of same title, reported in 42 An. 1071.

In that case an effort was made by the plaintiff to coerce her husband to return to the matrimonial domicile, or in default of so doing to pay her alimony at the rate of one hundred dollars per month. A judgment to that effect having been rendered in 1884, plaintiff sought to have same revived; but in that effort she was defeated because her demand for alimony was not accompanied by any demand for a separation from bed and board, or divorce — the decree maintaining that independent suit for alimony was an anomoly and not permissible in law.

The present suit was commenced immediately after the judgment in the former had become final, doubtless with the view of supplying the suggested omission therein.

The petition alleges the marriage, subsequent abandonment by the husband without any just cause, leaving plaintiff without any means of support or maintenance, or funds with which to provide herself with the necessaries of life. It charges that his conduct was without justification or excuse, the petitioner having always been faithful to her marriage vows in religion and in law.

It alleges that she has been supported through the assistance of her relatives since the time of this abandonment, more than twenty years ago, the defendant never having communicated with her since.

That he has since returned to Louisiana, where he now permanently resides, and is in the possession of a fortune of about thirty thousand dollars, through an inheritance from his deceased father, and has revenues ample to allow her alimony pendente lite, in the sum of one hundred dollars per month. Her prayer conforms to her allegations.

The case was, after a very protracted delay, put at issue by an answer, which is practically a general denial, coupled with the special averment, that he is poor and unable to support his wife in the style in which she would like to live, while she is comfortably “ living under the roof of one of her relatives,” and has no need of alimony.

Finally, that he is willing to have plaintiff return to him, if she is willing to return and live with him as becomes his means.

There was a trial and a judgment rendered, of which the plaintiff complains, because it rejects and disallows her demand for alimony, and with which the defendant expresses himself satisfied, because, in his opinion, it disposes of the case in his favor, on the merits.

There was considerable difficulty on the trial between the respective counsel, and a great number of bills of exception in the transcript attest the vigor of the controversy between them. Certain it is, that very much of the evidence which the plaintiff’s counsel sought to intro - duce, and which, upon objection by the defendant’s counsel, was rejected, was wholly inapplicable to a trial of the issue of alimony vel non; and it is equaliy certain that the condition of the record was such that it is unlikely that plaintiff’s counsel would have voluntarily gone to trial on the merits.

In this state of uncertainty, an appeal to the record furnishes us but little help in solving the difficulty.

Prom what we have quoted from the record, it is evident that the plaintiff has a cause of action, and we do not feel that she should be turned away from the portals of justice empty handed, with her suit dismissed and a judgment against her for costs. The purposes of justice would be best subserved by reversing the judgment and ordering a new trial, either upon plaintiff’s demand for alimony pendente lite, or upon the merits of the principal demand for a separation from bed and board, as may be deemed preferable.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the cause be reinstated and remanded for a new trial, according to law and the views herein expressed, the cost of appeal to' be taxed against the defendant and appellee, and those of the lower court to await final judgment therein. '


author: Breaux, J.

text:
    No. 11,815.
    Eugene S. Reems vs. Recorder of Mortgages et als.
    The mortgage and privilege to secure the payment of the taxes were prescribed: at the date of the sale; but the taxes, if a legal assessment had been made, were due to the city, which remained an ordinary creditor for the amount of the taxes.
    But there is no ordinary claim here, for the assessment was a nullity. There is confusion regarding the name of the tax payer and only part of the property was assessed, while the defendant purchaser claims tinder the tax proceeding and sale, title to the whole property.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      John Watt and Kernan & Wall for Plaintiff, Appellee:
    In an action in jactitation, defendant who answers, setting up title in himself, assumes the onus probandi and must make out his case; defendant, under such circumstances, occupies the position of plaintiff in a petitory action. 9 M. 914; 18 La. 102; 2 R. 331; 11 An. 174; 12 Ap. 873; 27 An. 307; 35 An. 356; 33 An. 249; 32 An. 613; 40 An. 558; Remick vs. Lang, 47 An. 914.
    The city of New Orleans has no right to advertise and sell, under Act No. 155 of 1894, any property other than that to which she has a valid title.
    To divest the title of the owner, the adjudication of his property for taxes must be preceded by notice to him. Const., Art. 210; 46 An. 356; 43 An. 721; 30 An. 871.
    One of the requisites of a valid sale of property for taxes is that the whole amount for which the sale is made must be due at the time the sale is made. Rouglot vs. Quick, 34 An. 126; Cooley on Taxation, 322; Saunders on Taxation, 302. No taxes were due the city of New Orleans on the property involved in this suit, for the year 1884, in 1891, the date of the pretended adjudication to the city.
    An assessment by an insufficient description and in a wrong name is no assessment. In this case it is not shown that plaintiff ever ratified the assessment of 1884 by paying the State taxes.

      The city taxes, tax mortgages, liens, privileges and rights of pledge for the year 1884 were prescribed under Sec. 34 of Act No. 96 of 1882. Concurring opinion of Mr. Justice Watkins, Succession of Stewart, 41 An. 131; Succession of Gfrardey, 44 An. 548; State ex rel. Dowers, 45 An. 571.
    The city of New Orleans has no mortgage, lien, privilege or right of pledge for its taxes, until her delinquent list is registered in the mortgage office, and she is without authority to seize and sell, for taxes, property which is not described on her delinquent list duly registered according to law. Secs. 33, 34, Act No. 96 of 1882.

      Dinkelspiel & Hart appeared for the Sheriff, made party, also Appellee.

      E. A. 0’Sullivan, Oity Attorney, Horace L. Dufour, Assistant City Attorney, for Appellant :
    The assessment under which the property in suit was sold to the city, and the adjudication to the city, are valid.
    Plaintiff having paid the State tax and assumed the city tax on an assessment is estopped from denying the validity when payment of the city tax is enforced. 44 An. 277.
    Statement of plaintiff that he does not remember receiving a notice is not sufficient to rebut the presumption that a public officer has done his duty, coupled with a return in writing that he made such service.
    The assumption by plaintiff of an imprescriptible tax, makes the property in his hands liable to seizure and sale therefor,’ although the privilege is preseribed. 41 An. 128; 42 An. 1135; 43 An. 810.
    Should the city’s title be annulled, its right to enforce the tax by seizure and sale of the property should be reserved.
    Argued and submitted, May 23, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff was the owner of two Iocs of ground, numbered 3 and 4 (less eight feet on Second street), on a plan numbered 41.

In his suit, which he alleges is one of jactitation, he sets forth that he became the owner by purchase of these lots from Mrs. Cornelia A. Calmes, .widow of W. C. Black, and others. That the Recorder of Mortgages has recorded a copy of the delinquent tax roll for 1884, in the name of Widow Cornelius Black, amounting to one hundred and sixty-two dollars and sixty-eight cents in principal. That this inscription is null, because the property was not assessed in the name of the owner, and for the further reason that the property was not correctly described upon the assessment roll. That it was described as parts of lots 3 and 4, despite the fact that the property’s correct description is lot 3 and part of lot 4. That the taxes were prescribed.

The plaintiff also alleges that the city of New Orleans pretends to own the property under a pretended adjudication, based on the void assessment for 1884, duly registered, and that this fraudulent title is a cloud and slander on his title, which he prays to have cancelled.

The defendant, the city of New Orleans, through her counsel, denies that plaintiff is the owner of the property, and sets up the validity of her title, and in the alternative prays (should the court annul the adjudication) that the property be decreed liable for the tax. The sheriff by whom the property was sold under the provisions of Act 155 of the legislative session of 1894, was brought in as a nominal party to the suit.

Plaintiff’s vendor had acquired title in 1880. In the deed by Mrs. Calmes, Widow Black (bearing date 21st May, 1884) to the plaintiff, the latter assumed the payment of the taxes for 1884. The assessment under the Act 96 of 1882, was completed on the 1st day of June) 1884.

The tax collector’s certiñacte admitted in evidence, shows that from 1881 to 1884 the property was assessed in the name of Widow C. Black. In the delinquent list, filed in the mortgage office, the name of the owner is inserted as Mrs. Cornelius Black. The same error appears in the list of the comptroller.

The notice that issued prior to the seizure was addressed to Mrs. Cornelius Black and to the plaintiff.

In the assessment roll the lots are described as parts of lots 3 and 4, while the correct description is as before mentioned.

The only evidence offered by the defendant, the city of New Orleans, is the notice to the tax payer to come forward and pay, with the endorsement thereon, signed by a service clerk, dated November 22, 1888, making return that he had personally served the notice on the plaintiff.

The latter testified that he had no recollection of such a service.

WITH REFERENCE TO THE TITLE IN QUESTION OF THE DEFENDANT CITY.

Under Act 155 of 1894 the city of New Orleans is authorized to offer for sale, by public auction, after the required delays and formalities, all immovable property it owns under adjudication for the taxes of 1880 and subsequent years. The property having been thus adjudicated in 1891, it was this sale that the plaintiff enjoined upon the grounds before stated.

With the exception to the notice to the tax debtor, to which we have already referred, the city has not offered any evidence of title whatever.

The evidence introduced by the plaintiff does not prove that a valid sale has been made.

Without some testimony showing that a valid sale has been made, this court is without authority to determine that title to the property has passed under the revenue law of 1882.

There are formalities, essential in their character, that must be shown in order to sustain title to property adjudicated at tax sale.

The defendant here was not relieved from the necessity of offering some proof of title.

Plaintiff’s right to an order to the proper officer to cancel the recorded lien and privilege is the issue arising at this time. It is settled by a number of decisions that the tax lien and privilege is prescriptible. In the Succession of Stewart, 41 An. 127, the point was decided, and it has been since affirmed and reaffirmed.

The prescription pleaded is a bar to the lien and privilege. Succession of C. E. Girardey; Opposition of City of New Orleans, 44 An. 543.

The defendant, through counsel urges, if the sale be decreed null, that her rights be reserved to be passed upon in another action.

Our conclusion at this point of the case, requires in its support a review of the grounds of estoppel, pleaded by the plaintiff.

It was sought by the plaintiff to apply the principle announced in several decisions that the payment of part of the taxes on an assessment estopped the taxpayer from contesting the correctness of the assessment. In the cases cited there was no question as to who paid the tax. Here there is. It was not proposed to sell whole lots on an assessment of part of lots. The assessment in the case at bar was of part of lots 3 and 4.

The proposed sale was of lots 3 and 4.

It would serve no purpose to reserve right to sue, it being manifest that none exists.

Only part of lots having been assessed, it follows that the sale of an entire lot, under such an assessment, is null.

Moreover, there is confusion regarding the name of the owner. Mrs. Cornelia Black was not the name of the taxpayer. It was, at times, treated as if owned under that name.

The judgment is affirmed.


text:
    No. 11,759.
    George C. Logan et al. vs. R. Y. Woodlief.
    The Post Oflice Department, whenever a subcontractor for conveyance of the mails abandons his contract, may employ temporary service on the route.
    Upon the return of the contractor, from whom the subcontractor held, that department, may reinstate the contractor.
    Without the consent of that department, the subcontractor can not be reinstated by the contractor.
    The general government has control of all contracts and subcontracts; they are governed by special regulations, and the laws applying to other contracts, regarding the placing in default, do not apply to these government contracts.
    The subcontractor had no absolute right to reinstatement by an agreement with the one in charge of the.temporary service to carry the mail.
    The subcontractor having abandoned his contract, although he subsequently returned to the service prior to notice to the contractor of his abandonment, he could not continue in the service, even with the consent of the contractor, without the approval of the Post Oflice Department.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

    TP. B. Sommerville for Plaintiffs and Appellants:
    On the bieach of any obligation to do or not to do, the obligee may require the dissolution of the contract. C. C. 1926.

      It is not a breach of contract for a sub-contractor for carrying mail to temporarily cease serving under the contract, because the acts of Congress provide that “ the Postmaster General may employ temporary service * * * to continue until the contractor commences or resumes the proper performance of service, or until the route can be relet. * * * Such service can be continued only until the contractor in person or by agent appear and takes charge of the route.” Postal laws and regulations, Secs. 771 and 772; U, S. R. S. 3954, as amended by Act of August 11, 1876, 19 Stats. 130; Act of August 3, 1883, See. 2, 22 Stats. 216.
    If the promisor withdraw the notice of his intention not to perform before the promisee has elected to treat it as a breach, the latter loses his right to treat the contract as broken, and the parties are in the same position that they would have been in if the notice had never been given. Am. and Eng. Ency. of Law, p. 906, Vol. 3; 6 Touillier, No. 255; Moreau vs. Ohauvin, 18 Rob. 161; Pratt vs. Craft, 20 An. 292; C. C. 1901.

      Rice & Montgomery for defendant and appellee:
    If parties, with knowledge of the fact that nullities, not absolute, exist in a contract, continue in its voluntary execution, they thereby waive such nullities, and are estopped from pleading the same thereafter in avoidance.
    The abandonment of service, even for a day, gives the employer the right to dispense with the employee’s further service. Sherburne vs. Orleans Cotton Press, 12 La. 360-1; Ford vs. Danks, 16 An. 119-20.
    The Post Office Department alone could, under the circumstances of this case, have objected to the irregularities, if any there were, in the contract in question. Bank vs. Flathers, 45 An. 80; National Bank vs. Whitney, 103 U. S. 103.
    Argued and submitted, May 6, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 24, 1895.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, a subcontractor for carrying the mails of the United States, sues the defendant, the original contractor for the annulment of the contract and for judgment sounding in damages.

The defendant’s contract, dated from January, 1890; and was entered into with the government for the term of four years to transfer in wagons the mails in New Orleans, between the post office and the railroad depots.

Subsequently, under the authority of an Act of Congress of May 17, 1878, the defendant entered into a subcontract with the plaintiff to perform the duties of the former under the contract, and under the subcontract the plaintiff entered upon the discharge of his duties in July, 1890.

In June, 1891, he wrote to the Post Office Department that it was impossible for him to continue the services required of him.

The following is a copy of his letter:

June 30, 1891.

u Hon. S. Eaton, New Orleans, La.:

“ Dear Sir — The company which has been hauling the mail under my subcontract has gone into liquidation, and the losses I have sustained in trying to continue the hauling for the past six weeks, rendering it impossible for me to continue any longer, I am compelled to discontinue from this day.”

The department, whenever a contractor for postal service fails to continue in the performance of the service, may employ temporary service on the route; the.cost of which is charged to the contractor until the contractor resumes the proper performance of service, or until the route can be relet.

The plaintiff under his contract was subject to all the requirements of the original contractor.

In consequence of the discontinuance of the subcontractor under his subcontract, the Post Office Department made a temporary contract with James Rainey, who took charge of the transfer of the mail, on the morning following the day that plaintiff discontinued carrying the mail.

In July the defendant notified the department that he had been informed of plaintiff’s abandonment of his subcontract and that he would immediately resume service for his own account.

Later, the Postmaster General.permitted the defendant to resume service under the original contract, i. e., the contract between the defendant and the government.

On September 1, 1891, the plaintiff acknowledged having received notice from the department of a fine imposed, and that money due him would be withheld.

He states in his communication to the officers of the Post Office Department that he resumes service under his contract, as he believes that he can thereby work out of the difficulties occasioned by his abandonment.

With the consent of Rainey (the temporary employee), he took charge of the wagons the former was using, and resumed, on that day, the hauling of the mail.

On the 14th of September, 1891, the postmaster here was informed of the action of the Post Office Department authorizing the defendant to resume service, and on that day began carrying the mail.

The plaintiff complains that on the day following he was dispossessed by the defendant and prevented by him from continuing the service under the subcontract.

From a judgment rejecting his demand, plaintiff appeals.

All the mail contractors and subcontractors are employees of the government.

There is no subcontractor without the consent of the proper officer of the Post Office Department.

He is under the orders of that department, and paid by the government for his service. He is subject to fines for the non-perform-• anee of duty, and for the causes assigned in the statute his service may be discontinued.

These contracts to carry the mails are public contracts, and contain the terms that the statute prescribes as binding contractors and subcontractors.

The plaintiff abandoned his contract and had been replaced by competent authority, for cause deemed sufficient by the Post Office Department.

He was not dispossessed by the defendant. The dispossession was an act of the authorized officer of the government, who under the statute made arrangement for the transfer of the mail.

Oontraetors and subcontractors are the agents upon whom the government relies for carrying the mails. They are, in many respects, public agents. Conwell vs. Voorhees, 13 Ohio, 523.

Here the plaintiff was nob truly a subcontractor or subagent in the sense that he was to serve the contractor exclusively, or carry out the mandate imposed upon him by the subcontract for account of this contractor only. But he was virtually under contract with the government, and one of its agents in the mail department, sub - jeet to its management and control.

Regard ng the agency, Addison, in his works on Contracts, Vol. 1, p. 469, treats as settled that the subagent is responsible to the principal for whom he directly acts.

In the matter of performance of a contract, the principal, where the subcontractor assumes all the duties of the contractor with express consent and under the terms of the law, as in this case, applies.

The contractor was a mere intermediary, to whom the plaintiff did not give any notice of his abandonment of the contract. Under the terms of his contract the plaintiff sent his notice of abandonment properly to the chief of the Post Office Department, who at once acted upon plaintiff’s default.

The aggregatio mentium between the parties concerned was complete without the original contractor’s consent. His objection or consent, under the terms of the contract, wo.uld have been useless, as there was no place for the one or the other.

The Post Office Department consented to the reinstatement of the original contractor. "We do not think it possible to conclude, from ■ the facts of record, that the department consented to the renewal of the subcontract, and without that consent it was not left for the plaintiff to resume service under the contract abandoned by him. The contract was a public contract to which the Federal law was applicable. The plaintiff seeks to limit the contract to himself and the defendant.

This is not possible under the terms of the subcontract, and in view of the duty the plaintiff undertook to perform.

The carrying of the mails is an attribute of sovereignity surrendered by the States to the general government, and subject to its law and regulations adopted to secure “celerity, certainty and security.”

There is no lack of legitimate power in the general government to assume, as it has control of all the contracts and sub-contracts for carrying the mails. It has the power, after abandonment by the subcontractor, to reinstate the original contractor, without permitting the subcontractor to resume service under the subcontract.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


text:
    No. 11,630.
    George Dixon vs. Louisiana Electric Light and Power Company.
    A night inspector of the defendant company undertook to repair a lamp out of orcler, the cut-off screw of which had been burnt out.
    It was highly dangerous (the volts on the wires were 3000) to handle the lamp while standing on the ground, and equally dangerous to handle it while standing on a wet insulating hoard or stool.
    After the accident the deceased was found lying on the ground in the gutter, north from the lamp. The lamp had been lowered to about three feetfrom the ground.
    The hood of the lamp had been taken off and placed a short distance from the lamp. The insulating board was south of the lamp, so that the lamp was between the insulating board and the body. The cut-off screw, out of repair, was»on the side of the lamp the body was found.
    A fall backward from the instating board would have been in a direction opposite from that his body was found.
    A fall forward would have been obstructed by the lamp in his front, and would have thrown him obliquely to the right or to his left.
    The position of his body gives rise to the inference that he was standing on the ground on the side of the lamp, opposite to the insulating stool; that he was standing on the ground the side the hood was and the cut-off screw.
    Tf this be not correct, and he was at the time standing on the insulating stool; it was not shown that there was any electrical defect in the insulating stool. It was incumbent upon him not to use a wet insulating board, if it was wet.
    It is the obligation of the servant to use ordinary care to prevent and avoid injuries. It is his duty to go about his work with his eyes open. He must take ordinary care to learn the dangers which are likely to beset him in the service. He was warned of the danger. The action against the employer is barred by the imprudent acts of the victim of the accident.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J,

      B, i?. Forman and B. B. Forman, Jr,, for plaintiff, appellant, cite:
    Beach on Contributory Negligence, 370; Wood, pp. 763, 681; Thompson on Negligence, p. 975; 41 An. 967; 40 An. 183.

      Farrar, Jonas & Krwttschnitt for defendant, appellee.
    Argued and submitted, March 13, 1895.
    Opinion handed down, March 25, 1895.
    Rehearing refused, June 24, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claims damages for the alleged killing of his son, James Dixon.

The decedent was a night inspector, and had charge of a district or route, and his duty was to repair lamps at lighting points and inspect electric lights.

It devolved upon him during the night to telephone to the clerk at the plant and receive or convey information about the' electric current and the arc lights.

On the night of the accident the last telephone message received from James Dixon was at 3:05 a. m. He was at the time a considerable distance from the place of the accident, at the corner of Broadway and Felicia streets, where his body was found on the morning of July 11, 1889. He was lying on his back in a gutter on the north side of Broadway street.

The arc lamp had been lowered to within a few feet of the ground, the hood of the lamp taken off and placed a short distance in the street. There was an insulating stool or board, used to stand on while repairing a lamp, which had been evidently placed there by the late James Dixon, and on which, in all probability, he stood part of the time at least. He was at work endeavoring to repair the lamp from a position not under the lamp, as testified by some of the witnesses, but on the side nearly under the lamp. The body when found was in an opposite direction; that is, the lamp was between the body and the insulating board.

We are clearly of the opinion that the death was caused by an electric shock.

The cut-off screw on the side opposite to that near which the insulating board was standing was out of order; it was burnt out. This cut-off screw was on the side the body was lying, giving rise to the inference urged on the part of defendant, that Dixon must have taken the hood off, placed it on the ground, and commenced to work on the screw from the ground, without standing on the insulating plaintiff’s board.

Plaintiff’s counsel controvert this inference, and urge that Dixon might have received the fatal shock before discovering that the cutoff screw was out of order, or that there is probability that he unscrewed the hood and pitched it along the ground without getting off his board, and went on with his work; that the lamp was a swinging lamp, and if the cut-off screw was on the other side of the lamp from the insulating board, Dixon might have swung the lamp around so as to get at the cut-off screw; or he might have been adjusting another part of the lamp.

These grounds urged by the plaintiff, are not sustained by the testimony.

Only one witness, a little girl eleven years of age, testified that she was present and witnessed the accident. She was carrying .milk from her father’s house to a neighbor.

The District Judge says: “No one saw the deceased when he was hilled. There is no proof as to whether he was standing on the stool or on the ground when he met his death.

“ Circumstantial evidence leads the court to the 'conelusion that the deceased was standing on the ground at the time, attempting to repair a defective lamp.

“ One witness, a girl, at the time of the accident twelve or thirteen years old, testified, three and a half years after, that she saw the deceased at the time he was killed, and that he was standing on the stool, with his hands above his head, fixing the lamp.

“The jury evidently did not credit her story. The court attributes her testimony, among other reasons, to her childish imagination, and considers she related not what she did see, but what •she imagined she had seen.”

The witness testified in the presence of the District Judge and the jury.

Under the jurisprudence well settled on that subject, and in view of the facts, we must give weight to the opinion expressed by the District Judge. Moreover, the record does not disclose that her testimony was uncontradicted and consistent. With reference to the time he was killed, this plaintiff’s witness would fix it after sunrise, while the defendants’ witnesses testify that there was no current on the lines after daylight.

Her testimony regarding the height of the lamp from the ground does not agree with the testimony of other witnesses. The account-given of the fall at the time of the fatal shock is not, we must say, convincing.

We have given due consideration to her testimony. The view we have taken of it is not in the least unfavorable to the witness.

She was a mere child at the time, and her statement many years after the death as a witness, can not under the circumstances be taken as a basis for a judgment.

Other evidence discloses that it was not possible for James Dixon to stand on the insulating board, as before described, and receive a fatal electric shock, judging from the position his body was found. Scientific experts in electricity testified that in wet weather the insulating stool was not safe to be put down anywhere in the street so that a man could safely handle and operate wire at a line or point not properly insulated, carrying three thousand volts.

The record discloses that no rain fell between July 14 and 17r 1889.

The preponderance of the testimony shows that the insulating board was in good condition, and not sufficiently wet to convey current enough to the top of the board to give anybody a dangerous shock.

It is in evidence that Dixon understood the danger attending the work of a night inspector; that he was warned of that danger; that he had charge of the insulating board, and that it devolved upon him to place it in a safe position. It is well settled that the servant' assumes the risk if he knows the danger of his employment. Bailey, Master’s Liability and Injuries to Servant, p. 146.

One of plaintiff’s charges was that the current of electricity over and through defendant’s wires was of such intensity and volume as to be dangerous to human life.

The evidence is that the voltage of the circuit was about three thousand, and that there were between eighty and ninety lamps on the circuit, and that it is not practical to use a short circuit and low voltages. It is not done anywhere, and is not considered good electrical engineering.

We do not discover here that there was anything exceptional in the number of lamps put upon the arc light circuit using a direct current, or in the tension of the current.

The board to stand on was such as is ordinarily used, and is still in use.

If Dixon was standing on the ground, or if he was not careful in the use of the insulating board, his sad fate and untimely end are not causes of action for which the defendant can be held.

The case was tried the first time before a jury. They having failed to agree, the prayer for trial by jury was withdrawn, and the case was decided by the court without the intervention of a jury.

Plaintiff’s demand was rejected. He appealed.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.