text:
    No. 3118
    Second Circuit
    SMITH, Administrator, Etc., v. VINSON
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Payment—Par. 1, 2.
    Under Articles 2314 and 2160 of the Civil Code a debt may be paid and an obligation discharged by a third person no way concerned in it.
    2. Louisiana Digest — Payment—Par. 14; Obligations — Par. 133.
    An obligation once extinguished by payment or otherwise cannot be resurrected.
    3. Louisiana Digest — Bills and Notes — Par. 183, 189; Mortgages — Par. 120.
    Where the evidence shows that a mortgage note had been paid by a third person for the benefit of the debtor it was a dead instrument thereafter, and the mortgage died With the note.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by J. B. Smith, administrator, etc., against Mrs. Nannie A. Vinson.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. L. Walker, of Ruston, attorney for plaintiff, appellant.
    Barksdale, Warren & McBride, of Ruston, attorneys for defendant, appellee.
   ODOM, J.

J. B. Smith, in his representative capacity as administrator of the succession of J. P. Haltom, deceased, alleged that said estate is the holder and owner of a certain promissory note for $1750.00 secured by mortgage on certain real property in Lincoln parish, said note and mortgage having been executed by M. R. Vinson, the deceased husband of Mrs. Nannie A. Vinson, and sought to foreclose the mortgage by executory process.

Mrs. Vinson, the defendant, enjoined the sale of her property on the ground that J. P. Haltom, deceased, had obtained said note by- unlawful means, that said estate was not the holder or owner thereof in due course, and, in substance, alleged that the obligation sued on had been extinguished by payment.

On final trial, the court perpetuated its preliminary writ of injunction, set aside the executory proceedings and ordered the note and the mortgage securing the same cancelled and the property released.

The plaintiff in the suit and defendant in injunction proceedings appealed.

OPINION

The facts disclosed by the record are that M. R. Vinson, the husband of Mrs. Vinson, who lived in Lincoln parish, purchased some property in Monroe, Louisiana, through a real estate dealer named Staples. To close the deal, Vinson had to make a cash payment of $1750.00. He did not have the cash, but Staples, the real estate dealer, suggested to him that if he would make a note for that amount, payable to his own order, due one year from that date — March 20, 1924 — endorse it in blank and secure the same by mortgage on real estate which he owned in Lincoln parish, he, Staples, would take the note and advance the cash himself, or would borrow the money, using Vinson’s mortgage note as collateral.

Vinson executed the note and mortgage in question and delivered the note to Staples. Staples, in turn, borrowed $1750.00 from the Ruston State Bank and, as evidence of the debt, gave a note for that amount signed by himself and J. L. Hutcheson, and, as security, pledged the Vinson mortgage note as collateral. The money was delivered to Vinson who made the cash payment on the Monroe property, and that deal was closed.

Vinson, with his family, moved to Monroe, where he died on December 24, 1924, prior to the maturity of the note.

Mrs. Vinson, the widow, not having the means with which to pay the mortgage note, appealed to her brother, J. F. Haltom, to pay it for her. Haltom lived in Arkansas, was a bachelor, advanced in years, president of a bank, and wealthy. On March 18, 1925, he visited his sister in Monroe and it seems spent the night with her and the family.

On the following day, March 17, 1922, three days before the note was due, Hal-tom, in company with his nephew, Walter Vinson, son of his sister in Monroe, went to Ruston and sought Staples, the realtor to whom the Vinson mortgage note had been delivered. On meeting Staples Hal-tom asked him where the Vinson note was and stated “that they had come to pay it”. On being told by Staples that the note was in the bank, Staples, Haltom and young Vinson went to the bank, where Staples introduced Haltom to the president, Mr. Atkins.

Staples says that Haltom told Atkins that he wanted to pay the note for Mrs. Vinson. The amount of the note and interest was $1890.00. Haltom drew a check on his bank in Arkansas for that amount in favor of the Ruston State Bank, whereupon the hank marked Staples’ note “paid” and delivered it to him.

Staples says that Haltom suggested to Atkins, president of the Ruston State Bank, that inasmuch as he, Haltom, was not known to the bank officials the bank might attach the Vinson mortgage note to Haltom’s check so that Haltom would not get possession of the note until and unless the check was paid. Presumably this was done. However, J. B. Smith, administrator of Haltom’s succession, who was cashier of the ■ Bank of Stephens on which Hal-tom’s check was drawn, says the note was not attached to the check when it reached the bank for payment.

Haltom was killed in an automobile accident about a. year later. J. B. Smith was appointed administrator of his succession. He found the Vinson note among the papers belonging to the deceased, and, in his representative ' capacity, brought suit to collect it.

Plaintiff contends, on the one hand, that Haltom intended to purchase and did purchase the Vinson mortgage note, that Staples and the bank intended to transfer and did in fact transfer said note to him, and that he therefore became holder and owner thereof in due course.

If such be true, then Haltom’s administrator is well within his rights.

Mrs. Vinson, on the other hand, contends that Haltom did not intend to purchase and that neither Staples nor the bank intended to sell said note, and that there was in fact no sale and no transfer of the note; but that Haltom intended to pay and did pay the note and thereby extinguished the obligation; and that therefore instead of Haltom’s becoming the holder and owner of the note in due course, the note in his hands was a dead instrument.

As Haltom and Atkins, president of the Ruston State Bank, were dead at the time of the trial, we must therefore accept the testimony of Staples and Walter Vinson as to what took place in Ruston and at the bank.

Prom their testimony, the fact that Haltom intended to pay the Vinson mortgage note is perfectly clear.

Walter Vinson says his uncle, Haltom, spent the night with his mother’s family in Monroe on March 16th; that on the following day his uncle asked him to take him to Ruston, that he wanted to pay the note; that he told him he intended to pay for Mrs. Vinson not only the note in question but also the balance she was due on the Monroe property and thereby relieve her of all indebtedness, and that he did, not expect his sister to pay them.

We believe this, for, as stated, Haltom had no immediate family, was advanced in years, was wealthy and was apparently devoted to his sister.

Staples says that when Haltom met him in Ruston he asked where the Vinson note was; that he wanted to pay it. He says that Haltom told Atkins, president of the bank, that he wanted to pay the note, and, according to his recollection, said he wanted to pay it for Mrs. Vinson. Staples repeatedly stated in the course of his examination as a witness that it was his understanding from all that Haltom said to him and from what he heard him tell Atkins at the bank, that he intended to pay the Vinson mortgage note.

On page 9 of the testimony Staples said:

“My recollection is that he (Haltom) stated that he came to pay the Vinson note.”

And he was asked:

“He didn’t say he came to buy the Vinson note?” And lie answered:
“No, sir.”

Again, Staples was asked:

“It was your understanding at the time that Mr. Haltom was paying your personal note and that he was then getting or to get the mortgage note?”

And he said:

“No, sir, he was not. I thought he was paying the mortgage note.”

A debt may be paid and the obligation discharged by a third person no way concérned in it.

Civil Code, Articles 2314, 2160.

Gernon vs. McCan, 23 La. Ann. 84.

8 Corpus Juris, page 588, Section 826.

Obligations are extinguished by payment.

Civil Code, Article 2130.

And there is no resurrection of an extinguished obligation.

Johnson & Co. vs. Boice & Frellsen, 40 La. Ann. 273, 4 So. 163.

If Haltom paid the Vinson note, it was a dead instrument in his hands and the mortgage died with the note.

But counsel, in brief, says that Haltom “intended to purchase the note and did purchase it”; and he contends that Hal-tom’s acts show that he did.

However, we find and hold to the contrary.

We find the rule stated in 8 Corpus Juris, page 588, Section 826, to be as follows:

“If a bill or note is paid after its maturity by a stranger to the paper, it will in general be held to be a purchase and not a payment of the instrument. Whether it is a payment or purchase is, however, a question of intention to be determined as a fact from the acts and declarations of the parties and from the surrounding circumstances. However, an agreement between the maker and the third person is not of controlling force; it is the agreement between the third person and the holder that controls.”

The fact that Haltom intended to pay the Vinson note is made evident by the fact that he told Walter Vinson that he intended to pay it, and told Staples and Atkins, president of the bank, that he was there to pay the Vinson note.

Haltom said not a word to Staples, Atkins or anyone else about buying the note, and there is not a word of testimony in the record to indicate that he intended to do other than to pay the note and relieve his sister of the obligation.

The testimony of Staples makes it clear that there was no agreement between the bank, the holder of the note, and Haltom that it should be transferred.

Counsel argues that the fact that Hal-tom suggested to Atkins that he attach the note to the check, which was drawn on a bank in Arkansas, indicates that he intended to purchase and not pay it.

That fact might be somewhat persuasive on the point if unexplained. But the testimony shows that this was’ done solely as a protection to the bank of Ruston. Haltom, being a stranger to the bank, it was hardly to be expected that the bank would surrender its collateral until the check was finally paid, and for that reason Haltom suggested that the note be attached to the check so that he could not get possession of it unless the check was paid.

Mrs. Vinson having discharged her burden of showing that the obligation was extinguished, it necessarily follows, that the executory proceedings must fall.

It is suggested by counsel for the administrator that inasmuch as Mrs. Vinson did not specifically plead payment of the note, the court cannot consider testimony on that point.

We think, however, the testimony was admissible under the pleadings. Besides, the testimony showing payment was admitted without objection.

The judgment appealed from is correct and is accordingly affirmed with costs.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3044
    Second Circuit
    YOURTEE, ET ALS., v. SMITH-HALL LUMBER CO.
    (December 21, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 166.
    Where one violates his contract granting him the right of ingress and egress to and from another’s land in such a manner as to cause the least injury, by unnecessarily destroying fences and ruining pasturage, he is liable for the damage done.
    2. Louisiana Digest — Damages—Par. 106; Appeal — Par. 637.
    The finding of the trial court of $1,200.00, quantum of damage to and destruction of fences and loss of pasturage, being clearly excessive, is reduced to $900.00.
    Appeal from the Sixth Judicial District Court of Louisiana-, Parish of Tensas. Hon. F. X. Ransdell, Judge.
    ' Action by S. T. Yourtee, et als., against Smith-Hall Lumber Company.
    There was judgment for plaintiffs and defendants appealed.
    Judgment amended and affirmed.
    Young & Watson, of St. Joseph, attorneys for plaintiffs, appellees.
    Tullís & Wade, of St. Joseph; J. B. Snyder, of Tallulah, attorneys for defendant, appellant.
   REYNOLDS, J.

This is an action under Article 1930 of the Civil Code to recover damages in the sum of $1,850.00 for active breach of contract.

Plaintiffs sold to Cardwell Stave Company standing and down merchantable timber on certain lands and stipulated in the act of sale, among other things, that the purchaser

“shall have the right of ingress and egress over, in and through said above described property for the purpose of cutting and removing said timber, the sale of which is herein. made, and for other timber, for the Hfe of this right, which right carries with it the right to construct and operate over and through said premises their tramways and railways; above right to be exercised in such manner as to cause least injury to vendors herein, and where farm, fields or pastures are gone through and over, fences gone through, gates must be maintained, and where damage is done to growing crops, said vendors must be compensated for same.”
The Cardwell Stave Company assigned its contract to defendant, Smith-Hall Lumber Company, the transfer stipulating that ‘the said merchantable timber being sold subject to the clauses, stipulations and conditions contained in the act of sale from S. T. Yourtee, et als., to the Card-well Stave Company”.

Plaintiffs allege that defendant, in its logging operations, negligently burned a cabin on the land worth $250.00, that it left gates open and tore down fences, whereby cattle had access to and ate up he grass on 1,000 acres of pasturage during the year 1925 and part of the year 1926, which pasturage was worth $400.00; that it failed to construct gates or cattle guards where it removed fences, in consequence of which cattle obtained access to and destroyed the crop of cotton on ten acres of land leased by plaintiffs to a tenant, which crop would have produced eight bales of cotton and that their share thereof would have been one-fourth and worth $200.00; and that in felling trees near plaintiff’s fence defendant destroyed two miles of wire fencing and left tree tops lying over and across the fence line, and that the fence was worth $500.00 and the cost of removing the tree tops and replacing the fence will be $500.00.

Defendant denied liability.

On these issues the case was tried and there was judgment in favor of plaintiffs and against defendant for $1,200.00 with legal interest from judicial demand, and defendant appealed.

OPINION

The evidence clearly establishes that defendant faiied to comply with its contract to exercise its right of ingress and egress to and from plaintiff’s land

“in such manner as to cause least injury to vendors herein, and where farm, fields or pastures are gone through and over, fences gone through, gates must be maintained, or cattle guards must ,be maintained”.

Our learned brother of the District Court, in a long and well-considered written opinion, said:

“The contract provided that in entering upon the property of complainant, the defendants were to maintain cattle gaps and gates when fences were passed through. There is no evidence to the effect that these were constructed or maintained, or that the defendants removed the timber in such manner as to cause the least damage to the complainant. On the other hand, the evidence seems ample to the effect that the defendants took no steps in the cutting and removing of said timber; to prevent damage to the. complainant. The trees seem to have, been thrown regardless as to whether they fell on and damaged the fences or not. The defendant takes the position that the fences were of such a character as to preclude the necessity of its observing the rights of the complainant, by observing the terms of the contract.”

The evidence, in our opinion, fully justifies this conclusion, and that plaintiffs are entitled to judgment for whatever damage it shows they sustained.

As to the item of $250.00 for loss of a cabin by fire, it was not allowed by the District Court, and we think its disallowance correct, as the evidence does not connect defendant with the fire; but if it were otherwise, we still Would be unable to give plaintiffs judgment for the amount as they have not appealed from the judgment nor answered defendant’s appeal.

As to the claim of $400.00 for loss of pasturage on a thousand acres for one year and part of another year, the evidence, in our opinion, shows plaintiffs entitled to recover for this loss and also that the pasturage was reasonably worth $200.00 per year; but as plaintiffs only sue for the value of the pasturage for the year 1925 and for the year 1926 up to the ■ date of filing of the suit, July 8, 1926, or say one and one-half years, the allowance as to this item should have been $300.00 instead of $400.00.

The judgment allows plaintiffs $500.00 for replacement of the wire fence destroyed. Under the testimony of S. T. Yourtee, B. W. Berry, L. H. Cook and P. G. Smith, we think this item of’ damage is established.

The judgment allowed $100.00 for clearing the fence line of tree tops left there by defendant. On the claim for damages for this account the evidence is conflicting, and we are unable to say that the finding of the trial judge is erroneous.

The District Judge ■ allowed plaintiffs $200.00 for loss of their share as landlords of their tenant’s crop of cotton destroyed by cattle. We do not think this item of loss is sustained by the evidence. There is no proof that the ten acres of cotton were properly planted or that there was ever a good stand on the land or that the crop had been properly cultivated and that it had escaped attack by the boll weevil and other enemies that a growing cotton crop is subject to. In our opinion the evidence is wholly inadequate to justify the allowance of this item.

We think that all that the evidence shows plaintiffs entitled to recover for is $300.00 for loss of pasturage, $500.00 for cost of replacing wire fence, and $100.00 for clearing fence line of tree tops.

It is, therefore, ordered, adjudged and decreed that the judgment appealed be amended by reducing the amount thereof from $1,200.00 to $900.00, and that, as thus amended, it be affirmed. '


author: WEBB, J.

text:
    No. 3127
    Second Circuit
    YOUMAN, ET AL. v. McCONNELL & McCONNEL, INC.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Automobiles—Par. 4 c.
    The driver of a motor truck is negligent in driving at such speed and so close to a car in front of him that he is unable to stop to avoid a collision and drives the truck upon the sidewalk, even though he acted in an emergency created by his own negligence.
    2. Louisiana Digest — Corporations — Par. 203, 204.
    A corporation is responsible in damages for the negligent act of its employee who, while engaged in the defendant’s business, drives defendant’s truck upon the sidewalk and injures a pedestrian.
    3. Louisiana Digest — Parent and Child— Par. 1, 6.
    In view of Article XXVI of the Civil Code, the expectant mother cannot recover damages for the child born dead because it has no legal personality distinct from its mother.
    4. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 104, 105.
    Eighteen hundred and seventy-four dollars is considered adequate quantum of damages for the result of being struck and knocked down by a truck rendering an expectant mother unconscious and inflicting bodily bruises and cuts causing severe pains for two months and confining her to her bed for eleven days.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Mrs. Edith Youman et al. against McConnell & McConnell, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Clifton.F. Davis, of Shreveport, attorney for plaintiff, appellee.
    J. Fair Hardin, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

This suit was brought by Mrs. Edith Youman and her husband, Harold Youman, against McConnell & McConnell, Inc., a corporation, and Strubbe McConnell and others, the incorporators, to recover damages alleged to have been sustained by reason of injuries received by Mrs. Youman through the alleged negligence nf one of defendants’ servants.

On trial Mrs. Youman was awarded damages against the corporation but her demands against the incorporators as well as the demands of her husband were rejected, and the corporation appealed, which appeal has been answered by Mrs. Youman, in which she prays that the judgment be amended and the amount awarded her increased.

The defendant complains of the judgment in that it is urged the evidence failed to establish liability on the part of defendant, and further, that in any event the amount awarded plaintiff was excessive; and, considering these questions in their order:

First, we find the evidence established that while Mrs. Youman was walking along the sidewalk a motor truck belonging to defendant corporation, and being driven by one of its employees in the course of and while engaged in defendant’s business, was suddenly turned from the street or roadway onto the sidewalk and struck Mrs. Youman; and the evidence further shows that the driver of the truck was driving so close behind another car and at such speed that when the car in front slowed down or was about to come to a stop the driver of the truck was placed in a situation where he had either to strike the car in front of him or turn and go upon the sidewalk; and although the driver of the truck may be said to have acted in an emergency we think the emergency was created by his negligence in driving at such speed and so close to the car in front of him as to be unable to avoid a collision in event the car ahead of him stopped without driving the truck upon the sidewalk (Henican vs. Woodman, 1 La. App. 281; Blashfield, Automobiles, 454, No. 29); and the defendant cannot escape liability under the theory that its servant acted, in an emergency, the emergency being created by his negligence (Southall vs. Smith, 151 La. 969, 92 So. 402; Dill vs. Colley, 3 La. App. 305).

Second, the accident occurred on June 11, 1926, and the evidence establishes that the truck struck the plaintiff, knocking her down, rendering her unconscious, and inflicted upon her body bruises and cuts; that plaintiff was enciente, being about seven monthá advanced with child, and when she was carried home she began to suffer with pains in her back and abdomen and was confined continuously to her bed for about eleven days under the attendance of a physician, and that she continued to suffer from time to time with such pains until the delivery of the child on or about August 1, 1926.

The physician testified that the pains with which plaintiff suffered were “labor pains” and that the treatment was directed towards relieving the pain and preventing a miscarriage; and it further appears the position of the child in the womb was changed following the accident and that the delivery of the child was more painful than would have been tlie case had it remained in the position in which it was before the accident.

The date of the delivery of the child was at about the normal period and the plaintiff, after the illness incident to her travail, was restored to her former health. However, the child was “still born”, and while the body appeared to be well formed and developed, the physician was unable to state that its death was caused by the accident, as it may have resulted from the manipulations in the delivery, made necessary by the position of the body in the womb.

The plaintiff claimed damages in the sum of five thousand dollars for the shock, pain and suffering and mental anguish caused by the injuries and by the threatened miscarriage, and five thousand dollars for the loss of the child and for other amounts, physician’s fees, and nurse’s services, and the judgment allowed her eighteen hundred and seventy-four dollars, which amount the plaintiff in her answer to the appeal has asked should he increased to three thousand dollars.

Counsel cite three cases from the Supreme Court of this state which are considered to be analogous. In the first case, Holzab vs. Railroad Co., 38 La. Ann. 185, the plaintiff, when pregnant, was thrown to the floor of a car on which she was a passenger and the shock caused injuries which confined her to her bed for several weeks where she suffered considerable pain, but ah abortion did not ensue, although her health was impaired, for' which three hundred dollars was allowed by the trial court and the cause was settled while the case was pending on appeal in the Supreme Court. In the second case, Stewart vs. Railroad Co., 112 La. 764, 36 So. 676, it appeared that the plaintiff was pregnant at the time of the accident and immediately thereafter she became ill, and after an illness of about one week she had an abortion, and after recovering from the illness she had not enjoyed good health, for which injuries one thousand dollars was allowed; and in the third ease, Joiner vs. Railroad Co., 128 La. 1050, 55 So. 670, two thousand dollars was allowed where the plaintiff, after suffering about thirty days, had a miscarriage, although it did not appear that her health had been permanently affected. And the defendant contends that the amount of the award should be fixed with reference to the amount awarded in the first case, while plaintiff takes the position the amount awarded was properly fixed by the trial court with reference to the amount allowed in the last case, and that as the trial court did not make any award for the loss of the child, that the amount of the judgment should be increased.

In the cases cited it does not appear that the pleading required that the elements of damage should be specifically determined, and while it appears to be conceded that there could not be any recovery by the mother for loss of the society of or support from the child which she may have anticipated, but the defendant contends that under the declaration of Art. 26, C. C., that “children born dead are considered as if they had never been born nor conceived”, the court could not have considered the loss of the child in any respect.

The civil law has always provided for the civil rights of the child en ventre sa mere, and while such rights are considered as never having existed when the child is born dead, because it is not regarded as a legal person until born alive, we think the provision of the Code should be read in this light, that is, that the child born dead is not considered as having had a legal personality distinct from its mother.

While there is some question as to whether the child died as a result of the injury, yet conceding that it did, but from this point of view the child could not be considered as having a distinct legal personality, and we do not think the mother could have a right of action for the loss or death of the child.

However, we think it may be assumed that a woman with child looks forward with considerable apprehension to the time of delivery as relates to herself as well as to the child in her womb, and that any injury which she suffers through the negligence of another where it results in illness plainly having a tendency to bring about the delivery of the child before the normal period must increase the apprehension and cause an anxiety for herself and mental distress for the child for which she should be permitted to recover; and the evidence establishing that she suffered at times over a period of more than sixty days with labor pains prior to the delivery of the child, and that the delivery of the child was more painful than would have been the case had the accident not caused the child to change its position in the womb, we cannot say that the amount awarded plaintiff was excessive.

We do not think that the decision in Holzab vs. Railroad Co., supra, established any precedent as to the amount to "be awarded, as the parties compromised as to the amount of the award while the question was before the Supreme Court, and we find that the evidence shows the plaintiff in the present case suffered for a longer time than was shown to have been the case in the other causes cited by counsel.

The judgment appealed from is affirmed.


text:
    No. 2307
    Second Circuit
    COMMERCIAL NATIONAL BANK OF SHREVEPORT v. MARRS AND BLANTON
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625, 636.
    A showing of conflicting evidence is not sufficient to cause appellate court to reverse the decision of the trial court where no manifest error is pointed out.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Commercial National Bank of Shreveport against W. G. Marrs and W. M. Blanton.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, Commercial National Bank, held for collection twelve notes of defendant, W. G. Marrs, the first of which matured on August 15, 1922, the second on October 15, 1922, and the others on the 15th day of each successive month, the last maturing on August 15, 1923.

The payments which were made by defendant and his wife were customarily credited on the note due at the time of the payments and the note marked paid and delivered to defendant as of the date of the payment, and it is conceded that the notes were paid on or about maturity as they fell due until the fourth note matured on December 15, 1922, when a part of the amount due was paid and the balance carried one month, and after that time the date of maturity of the other notes, that is, those maturing after January, 1923, were extended for a period of one month.

The parties concede that all of the notes were paid except the note maturing on its face on June 15, 1923, which is the note sued upon, and it appears that that note was also marked “paid”, which the plaintiff alleged was made in error and which error in so far as the mere marking of the note paid we think is conclusively established; however, while defendant does not contend the note was paid on the date it was marked paid, yet he contends that it was in fact paid, or if the payments made him had been applied to the obligations as they matured the note in question was paid.

The parties concede that the notes maturing on their face on July and August 15, 1923, were paid, and the dispute arises as to payments prior to that time; however, the notes, with the exception of the note sued upon, show they were marked paid on- the dates which correspond with the dates of the cheeks drawn by defendant or his wife, except that one note was marked paid and delivered when there was a note of prior maturity held by the bank, which error was corrected without injury to defendant at the time of the next payment; and from this point of view the record clearly indicates that the note maturing on its face on June 15, 1923, or the note sued upon, was not paid.

The contention of defendant appears to be that he had paid one of the notes in cash, and that his wife had paid one which had not been delivered to her at the time of the payment. However, the defendant himself was unable to state to whom or when the cash payment was made, although it appears certain that he did not pay the note maturing on its face on June 15, 1923, and although plaintiff’s wife was of the opinion that she had paid one of the notes maturing on its face prior to June which was not delivered to her she was not certain, and we find the evidence clearly shows she was in error.

The learned trial judge gave a written opinion in which, we think, he thoroughly and properly reconciled the testimony presented in the case, and although there was evidence introduced which may be said to conflict with the conclusion, yet there was certainly ample evidence to support it.

“On appeal in cases involving only issues of fact, the judgment will not be disturbed unless manifest error is pointed out, and showing of conflicting evidence is not sufficient.”

Pisciotte vs. Indemnity Co., 164 La. —, 113 So. 840.

The judgment is affirmed.


author: ODOM, J.

text:
    No. 2935
    Second Circuit
    REIDHEIMER v. POLICE JURY OF BIENVILLE PARISH, ET AL.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    1. Louisiana Digest — Roads, Bridges and Ferries — Par. 4.
    Under Section 27 of Act 95 of the extra session of 1921 the land owner can recover damages on account of the destruction of his improvements in locating the road, against the highway commission but not against the police jury where it had nothing to do with the road’s construction.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by J. A. Reidheimer against Police Jury of Bienville Parish, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      E. E. Kidd, W. M. Wallace, of Arcadia, attorneys for plaintiff, appellee.
    W. D. Goff, district attorney, W. M. Barrow, attorneys for defendants, appellants.
   ODOM, J.

The facts in this case are identical with those in the case of Thomas C. Dick versus the same defendants, No. 2934 on the docket of this court, this day decided, except that in addition to the fence destroyed in locating the road the Highway Commission destroyed a dipping vat' worth $100.00. Plaintiff testified .that his total damage was $244.00. No other testimony was introduced.

For the reasons assigned in the case of Thomas C. Dick versus Police Jury of Bienville Parish, et als., No. 2934 on the docket of this court, this day decided, the judgment appealed from is affirmed with costs.


text:
    No. 2342
    Second Circuit
    ANDERSON v. PEYTON
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (January 18, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Corporations—Par. 54, 61, 62.
    Where stock of bankrupt corporation was part of the consideration of sale of real estate the owner of the stock warranted its existence at the time of transfer even though it was endorsed “without recourse”.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Jim Anderson against A. P. Peyton.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    A. A. LeRosen, of Shreveport, attorney for plaintiff, appellant.
    Clem Y. Ratcliff,.of Shreveport, attorney for defendant, appellee.
   WEBB, J.

Plaintiff sold to defendant certain real estate for the expressed consideration of seven hundred and fifty dollars cash and the assumption by the vendee of a mortgage of one thousand dollars, and in this action plaintiff seeks to show that the real consideration was twenty-two hundred and fifty dollars, represented by seven hundred and fifty dollars in cash or its equivalent, by the mortgage for one thousand dollars, and by five shares of the capital stock, of one hundred dollars per share, in a corporation domiciled at Memphis, Tennessee, and to recover judgment against defendant for five hundred dollars; it being alleged that the stock was worthless to the knowledge of defendant and that the corporation which had issued the stock had been placed in bankruptcy and its assets distributed without leaving any amount for the stockholders at the time of the transfer.

The plaintiff made various allegations of fraud and error resulting therefrom, but as the title to the property was not in contest and no objection was made to the introduction of parol evidence, it is unnecessary to consider the sufficiency of the allegations of fraud and we will consider the evidence as presented- as it relates to the question of error in the transfer as to the consideration and the right of plaintiff to recover.

The parties had some negotiations before the transfer, as to which the defendant’s testimony is, in part, as follows:

“A. I do not think that Jim made less than six or seven visits and asked me to buy this property. I told Jim that I had about all that I could take care of; asked him to go and see someone else; and he told me. that he had talked to Mr. George Monzingo and someone else and they did not have the money; and I says what do you want for it, and he first told me twenty-five hundred dollars. I says, ‘There is no use for me to go there and see the property; the property is not worth it’. ‘Well,’ he says, ‘you come and see it and we can make a trade.’ I did not go for several days, and he came back. In the meantime I went there with him, and I told him, I says: ‘Jim, I have a stock certificate for seven hundred and fifty dollars; now I might use this pi'operty if you want to take this in as a trade’; and he says: ‘Well, I could not use that much, I owe a thousand dollars on the place’; and finally I told him, I says: ‘Jim, if you take five hundred dollars of the stock’, and he says: ‘What is it worth?’ and I says: ‘Jim, I do not know — I could not tell, I can tell what I paid for it’; I says, you take the stock and go to Mr. Gibson in the bank, or anyone else, and see what it is worth, and he took it and came back and says: ‘That is all right, I will take it,’ and I says: ‘Are you perfectly satisfied it is all right?’ and he says: ‘That is all right.’ * * *
“Q. He went out at your suggestion and made inquiries as to the value of the stock?
“A. Yes, sir.
“Q. What did he represent to you when he came back? ,
“A. He says: ‘That is all right, I will take the seventeen hundred and fifty dollars and the stock.’ ”

The plaintiff says he first offered the property for twenty-five hundred dollars and after some negotiations the price was reduced to twenty-two hundred and fifty dollars, which was to consist of the seven hundred and fifty dollars cash, the assumption by the vendee of a mortgage of a thousand dollars, and the five shares of stock; and the evidence shows that immediately following the drafting of the instrument evidencing the transfer, the certificate for the shares of stock was delivered to defendant together with seven hundred and fifty dollars in cash or its equivalent, and that the mortgage assumed was paid.

The defendant contends, however, that the stock did not constitute a part of the consideration, but, as expressed by counsel, it was just “lagniappe” or a gratuity given to plaintiff after the sale, with reference to which as well as to the value of the stock the evidence of the defendant is, in part, as follows:

“Q. When you turned the stock over to Jim, you considered it worth par?
“A. I did not know what it was worth.
“Q. Well, did you understand that it had no value?
“A. I did not know what it was worth, had not heard a word from them.
“Q. You told Jim that you had paid five hundred dollars for the stock?
“A. Yes, sir.
“Q. You supposed it was worth that amount?
“A. No, sir.
“Q. You told him it was worth that?
“A. I told him X did not know what it was worth, he could find out for himself.
“Q. Did you think at that time, did you have any reason for thinking at that time, or have any information that the stock was absolutely worthless?
“A. I do not know that I thought over it.
“Q. If you had known that the stock was worthless at that time, would you have transferred it to Jim Anderson?
“A. Well, I have sold things that proved not worth much, and I bought them the same way.
“Q. If you had known that the concern had gone into bankruptcy, would you have considered that they had any chance— would you if you had known that the company was in bankruptcy, have considered that stock of sufficient worth to put in this trade?
“A. The way that I bought this property, I figured that I was giving Jim what it was worth, outside of the stock.
“Q. You did not tell him that it was a gift?
“A. No; told him if he wanted to use this stuff he could have it.
“Q. Why did you add ‘without recourse’ when you transferred the stock?
■ “A. I do not know why; I do not know that I can explain just why I did it.
“Q. Now is it not a fact that the use of those words was predicated on your belief that the stock had no value?
“A. No, sir; I sell quite a few notes, and I always sign ‘without recourse’, and I judge I signed that one that way.”

The instrument evidencing the sale failing to mention the stock as a part of the consideration, and it being shown that the instrument was read to the plaintiff, and the stock having been transferred with the notation thereon, “without recourse”, it appears to be contended that although the negotiations leading up to the passage of the act- show that the price was twenty-two hundred and fifty dollars and the stock was considered as a part of such consideration, and that the stock was delivered to plaintiff immediately following the passage of the act of sale, yet the defendant having testified that he explained the situation to the plaintiff at the time of the sale, that the consideration expressed in the instrument should be conclusive.

The defendant did not attempt to detail the explanation which was made to plaintiff, and we think the evidence shows that whatever explanation was made it did not carry notice to the plaintiff that the stock was not to be considered a part of the consideration.

The plaintiff was an ignorant negro and the evidence shows that the parties in their negotiations leading up to the sale considered the stock would be given and received as part of the consideration, and the evidence showing it was delivered immediately following the sale, we think these circumstances are not overcome by the statement that the matter was explained to the plaintiff at the time of the sale or by the fact of the stock having been indorsed “without recourse”, and we are of the opinion that the weight of the evidence shows that the stock was at all times considered by the parties as a part 'of the consideration of the sale and the instrument was erroneous in that it failed to express one of the moving causes on the part of the vendee for the making of the sale.

The evidence conclusively establishes that at the time of the sale, and when the stock was transferred, the corporation which issued the stock had been placed in bankruptcy and its property distributed among its creditors, leaving some debts unpaid and nothing for the stockholders; and the stock having been given as a part of the consideration, even considering the indorsement “without recourse”, defendant warranted its existence at the time of the transfer. (C. C. 2666; Knight vs. Lanfear, 7 Rob. 172; Corcoran vs. Riddell, 7 La. Ann. 268; Lincoln vs. Express Co., 45 La. Ann. 729, 12 So 937; Cluseau vs. Wagner, 126 La. 375, 52 So. 547; Meyer vs. Richard, 163 U. S. 385; 41 Law Ed. 191); and it appearing that the stock represented five hundred dollars of the price of the property, we think the plaintiff should recover judgment for that amount.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that plaintiff, Jim Anderson, have and recover judgment against defendant, A. J. Peyton, in the sum of five hundred dollars with legal interest from judicial demand and all costs of suit.


text:
    No. 3041
    Second Circuit
    BOSSIER STATE BANK v. HAMNER AND SMITH
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Gourt)

    1. Louisiana 'Digest — Suretyship—Par. 27, 38, 61; Subrogation — Par. 6.
    The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.
    Civil Code, Article 3061.
    2. Louisiana Digest — Subrogation—Par. 6; Suretyship — Par. 27, 38, 61.
    When a creditor receives property from a debtor for the payment of a debt for which security has been given, it is the duty of the creditor to hold the same impartially for the joint benefit of himself and surety. He has no right to dispose of it without the surety’s consent. If the creditor, therefore, does any act without the surety’s consent, which impairs his rights of subrogation, or the means of enforcing his claim against the principal in case he should pay the debt, the surety will be discharged.
    New England L. Co. vs. Randall, 42 La. Ann. 260, 7 South. 679.
    Appeal from the Twenty-sixth Judicial District Court of Louisiana, Parish of Bossier. Hon. Harmon C. Drew, Judge.
    Action by Bossier State Bank against E. B. Hamner and G. W. Smith.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Robert Roberts, Jr., of Shreveport, attorney for plaintiff, appellant.
    J. G. Palmer, of Shreveport, attorney for defendants, appellees.
    STATEMENT OP THE CASE
    Plaintiff sued defendants for the sum of $320.00 with 8% interest thereon from December 11, 1925, until paid, and 10% on the amount of principal and interest, as attorney’s fees, subject to a credit of $80.00 paid April 22, 1926, on a promissory note for the sum of $320.00, signed by the defendants and J. G. McDade, in solido, dated October 26, 1925, due December 11, 1925, bearing 8% interest from its maturity until paid, payable to the order of palintiff, stipulating payment of 10% attorney’s fees, and on which is endorsed the following credit: “Paid on within note $80.00. Mc-Dade. 4/22/26.”
    Judgment by default was entered against Hamner.
    Smith answered, admitting execution and delivery of the note, but denied liability thereon; and, as a special defense, set up that, to the knowledge of plaintiff, he and McDade received no part of the consideration for the note and were merely sureties thereon; that at the time of the execution and delivery thereof, by agreement between plaintiff, Hamner, McDade and himself, Hamner deposited with plaintiff certain negotiable instruments belonging to himself of a value exceeding in amount the debt represented by the promissory note to secure McDade. and himself against loss by reason of their suretyship, and that plaintiff, without the knowledge or consent of McDade or himself, had surrendered possession of the instruments to Hamner who had collected the debts represented thereby and converted the proceeds to his own use, and that the act of the plaintiff remitted the debt represented by the note to Hamner and discharged McDade and himself as sureties thereto.
   REYNOLDS, J.

The default against Hamner was proved up, and the case went to trial quo ad Smith on his answer.

The District Court rendered judgment in favor of the plaintiff as prayed for and Smith appealed.

OPINION

It is alleged in Smith’s answer—

“that defendant, G. W. Smith, and the said J. G. McDade, were merely sureties on said note, and that, for their protection in the premises, it was agreed that the said E. B. Hamner, who was and is the principal in said note, would deposit at that time with plaintiff a sufficient number of promissory notes then owned and held by said Hamner, and due and payable by sundry solvent persons, and aggregating in amount a sum in excess of $500.00; and that with this agreement and understanding the said Hamner, then and thereupon, delivered to the plaintiff, Bossier State Bank, the said notes for the purpose herein stated, and that the delivery to the said Bossier State Bank of said notes by the said Hamner was caused to be made by the defendant, G. W. Smith, and the said J. G. McDade for their protection, and with the agreement between all ¡parties in interest that the same constituted a part and parcel of the transaction then being consummated just as much as did the signing of the note sued on.”

And also that—

“the said Bossier State Bank, plaintiff herein, without his knowledge or consent, and without the knowledge or consent of the said J. G. McDade, and upon its own responsibility, returned to the said E. B. Hamner all of the said notes * * * in absolute violation of the agreement between all the parties in interest, and thereafter the said Hamner proceeded to collect all of the said notes, or at least a sufficient number to receive therefrom a sum in excess of the debt herein sued on.”

And that the conduct of the plaintiff amounted to appointing

“Hamner its agent and representative for the handling and collection of said notes, or a sufficient amount thereof to pay the debt herein sued on, and that such collection amount in law to a payment in full of the note.”

J. G. McDADE testified (testimony, p —):

“Q. Mr. McDade, you are one of the signers of the note sued on in this case?
“A. Yes, sir.
“Q. You are not sued, of course — were you present when the note was executed?
“A. Sure; yes, sir.
“Q. Where was it signed, Mr. McDade?
“A. In the bank there, was not an office, out in front at Mr. Prince’s desk in one of the rooms there.
“Q. Dr. Prince is president of the bank?
“A. Yes, sir.
“Q. Well, who was present when the note was signed?
“A. Dr. Prince, Mr. Hamner, Mr. Smith and myself.
“Q. All right — did Mr. Hamner have any ¡personal notes of his?
“A. Mr. Hamner — yes, sir; he had some notes on some parties he had sold trees to, he said.
“Q. Did he take any out of his pocket?
“A. Yes, sir; he took them out there.
“Q. How many did he take out?
“A. I don’t remember how many there were.
“Q. What did they aggregate?
“A. Something like five hundred and thirty-six or five hundred and thirty-eight dollars, one or the .other.
“Q. Who did he hand these notes to when he took them out of his pocket?
“A. Put them down, and when Dr. Prince came in he handed them to him.
“Q. Was anything said there between all of you as to what those notes that Hamner was putting up there at that time stood for?
“A. They were — Mr. Hamner put them up there—
“Q. When Mr. Hamner took the notes out of his pocket was Dr. Prince present and heard all of the conversation that took place?
“A. Yes, sir.
“Q. Did he take part in it?
“A. Yes, sir, all there talking about these things; told him was going to leave those notes there for our protection.
“Q. For your protection?
“A. Mr. Hamner was going to turn the notes over to him, leave them at the bank for our protection, and we were to sign the note for his protection; when those notes were collected they were to pay this three hundred and twenty dollars. Twenty dollars was interest.
“Q. You all then, you and Mr. Smith, had already talked the matter over with Dr. Prince before you actually me.t and signed the note?
“A. That morning; yes, sir.
"Q. Now what did you tell him you were going to have Hamner turn the notes over for?
“A. Hamner was to come in and turn the notes over for our protection; to (protect us from having to pay the note what they were for.
“Q. Did you tell him that?
“A. Yes, sir.
“Q. Did you ever consent for those notes to be turned over to Mr. Hamner?
“A. No, sir; was never asked about it.
“Q. When they were turned over, they were turned over without your knowledge or consent?
“A. Yes, sir.
“Q. Everything that you did in this matter was for the accommodation of Mr. Hamner?
“A. Yes, sir, strictly; I never got a dollar out of it.
“Q. That is, at his request; at the same time you had previously accommodated him and thereby became obligated to the other company and the proceeds of this note went to discharge that prior obligation?
“A. Yes, sir; I think so.”

Dr. S. E. Prince, president of the plaintiff bank, testified (testimony, p. ■ — ):

“Q. Dr. Prince, you are president of the Bossier State Bank of Bossier City, Louisiana?
“A. Yes, sir.
“Q. Were you present when the note sued on in this case was signed?
“A. Yes, sir.
“Q. With whom were these negotiations carried on?
“A. Me — myself.
“Q. I presume, of course, that at that time there were present also. Mr. E. B. Hamner, G. W. Smith and J. G. McDade?
“A. Yes, sir.
“Q. Was Mr. Emmons, the cashier, present?
“A. No, sir.
“Q. Dr. Prince, did Mr. Hamner at that time deliver to you any notes which he owned and which were due him by sundry parties?'
“A. No, sir; he never.
“Q. Were there any notes of any kind Mr. Hamner left with you?
“A. Yes, sir.
“Q. Who delivered them to you?
“A. Mr. Smith delivered them to me.
“Q. You are certain of that, doctor, is it not a fact that Mr. Hamner—
“A. He went outside the bank and got the notes I suppose from Mr. Hamner; Mr. Hamner followed him in, but Smith delivered the notes to me.
“Q. Doctor, what did you take those notes for?
“A. For collection.
“Q. For what purpose?
“A. For Smith’s security; I never accepted them as security for the bank.
“Q. Security for Smith for what?
“A. For this loan he and Hamner had made.
“Q. Mr. McDade also made it?
“A. Yes, sir.
“Q. But it was primarily Hamner’s obligation?
“A. I suppose so.
“Q. The check that you issued them for this three hundred and twenty dollars was made payable to Hamner?
“A. Yes, sir; made payable, as well as I remember, the cashier’s check was made payable to a nursery, and Smith and Mc-Dade had signed his bond.
“Q. Then they came to the bank and signed this note as his security to enable him to get the money with which to pay that obligation — that is correct?
“A. Yes, sir.
“Q. Now you say Mr. Smith delivered to you certain personal notes of Mr. Hamner which he delivered to you as his protection against any loss he might sustain should he be called upon to pay this note sued on?
“A. Mr. Smith and Mr. Hamner had an agreement between themselves — these notes were never accepted as collateral to the Bossier State Bank, never.
“Q. Let’s take it that way then — Smith and Hamner had an understanding that Hamner—
“A. That Hamner was to leave the notes there for collection.-
“Q. Well, you say Mr. Hamner didn’t leave them, Mr. Smith left them?
“A. Well, I suppose that Hamner agreed with Smith to leave them.
“Q Who actually left them with you?
“A. Smith.
“Q. For what purpose?
“A. For — well to be ©laced — to be placed to Hamner’s credit, the idea was to pay the note if collected.
“Q. In other words, it was to keep Smith from sustaining ultimately any loss on account of signing that note?
“Á. Tes, sir.
“Q. What, you don’t remember the amount of those notes?
“A. No, sir; I don’t remember.
“Q. You do recall it was something around five hundre.d dollars?
“A. Something in that neighborhood; yes, sir.
“Q. What became of those notes? •
“A. Hamner came back and got them.
“Q. Well, did Mr. Smith authorize you or Mr. Emmons to return the notes to Mr. Hamner ?
“A. They were Hamner’s notes.
“Q. That is not the question, doctor; did Mr. Smith authorize you or Mr. Emmons or anybody else in authority in the bank to return the notes to Mr. Hamner?
“A. No, sir.
“Q. Did not?
“A. No.
“Q. Then you or the bank returned the notes to Mr. Hamner without the knowledge or consent of Mr Smith?
“A. Yes, sir.
“Q. Were the notes returned to Mr. Hamner without the knowledge or consent of Mr. McDade?
“A. Yes, sir; so far as I know, he didn’t know it.”

Both Hamner and Smith also testified and their testimony also is to the effect that Smith and McDade only signed the note as sureties and that the negotiable instruments belonging to Hamner deposited with the plaintiff at the time were to secure Smith and McDade against loss by' reason of their having signed the note and that the negotiable instruments were surrendered by the plaintiff to Hamner without the knowledge or consent of either Smith or McDade.

Article 3061 of the .Civil Code provides that:

“The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”

Smith and McDade only signed the note as sureties and( the plaintiff knew it at the time it accepted the note.

The negotiable instruments belonging to Hamner were deposited with the plaintiff to secure Smith and McDade against loss by reason of their suretyship and were to be collected and the money realized thereby was to be applied to the payment of the note.

The plaintiff, without the knowledge or consent of the sureties surrendered the instruments to Hamner.

This act of the iplaintiff, in our opinion, discharged the sureties. The instruments were deposited with the plaintiff primarily to be collected and their proceeds applied to the payment of the note, and it was its duty not to dispose of them without the knowledge and consent of the sureties, but to hold them impartially for its own and the sureties’ benefit.

New England Mut. L. I. Co. vs. Randall, 42 La. Ann. 261, 7 South. 679.

As said by the court in Hill & Co. vs. Bourcier and Pond, 29 La. Ann. 841:

“If by the act of the creditor, or his wilful neglect or want of proper diligence, any of the securities, rights, mortgages, and privileges by which the debt was secured, are lost, so that they can no longer be made available, the surety is discharged to the extent of their value.”

But plaintiff contends that Smith and McDade were not sureties but principals. The evidence of (plaintiff’s own witnesses shows otherwise, however.

Even if they were principals and not sureties, plaintiff would not be in any better case, for Article 2203 of the Civil Code provides that:

“The remission or conventional discharge in favor of one of the co-debtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
“In the latter case, he cannot claim the debt without making a deduction of the part of him to whom he has made the remission.”

And plaintiff remitted the debt in favor of one of the co-debtors in solido, McDade.

Doctor S. E. Prince, president of plaintiff, testified, (Evidence, page 8):

“Q. Didn’t you release Mr. McDade in this case on payment of just one-half or one-fourth?
“A. Yes, sir; offered to compromise to keep from having a law suit.”

And J. G. McDade testified, (Evidence, page 29):

“I paid Dr. Prince; Dr. Prince and I compromised; he came to me and offered to compromise, and I told him I would take that rather than have a law suit.”

This evidence was introduced without any objection thereto on the ©art of the plaintiff and consequently the pleadings were enlarged pro tanto.

“A party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings is bound by its effect.”

Hennen vs. Gilman, 20 La. Ann. 241.

Nusbaum vs. Marks, 20 La. Ann. 379.

Nor is there anything in the Uniform Negotiable Instruments Law (Act No. 64 of 1904) that abrogates the codal provision quoted.

“There is nothing in Act No. 64 of 1904 (known as the Negotiable Instruments Act) which operates the abrogation or repeal, as to negotiable instruments, of Article 2203 of the Civil Cp.de, which declares that the ‘conventional discharge in favor of one of the co-debtors in solido discharges all the others, unless the creditor has expressly reserved his rights against the latter’.”

J. I. Case T. Mach. Co. vs. Bridger, 133 La. 754, 63 South. 319.

The law and the evidence convinces us that the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 3025
    Second Circuit
    HODGES v. DAVIS
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4 c.
    It is the duty of those who drive automobiles on streets of populous cities to always look ahead and use every precaution to avoid running over pedestrians.
    2. Louisiana Digest — Automobiles—Par. 4c.
    It is the duty of the driver of an automobile to take extra precautions to avoid striking pedestrians after being discharged from street cars because he sees the stationary street car and should expect discharge of passengers.
    3. Louisiana Digest — Automobiles—Par. 4 c, 7 c.
    The driver of an automobile is liable in damages for injuries to a pedestrian if he had the last clear chance to avoid the accident either by applying his brakes or driving in a different direction, even if the pedestrian was originally guilty of negligence, because the proximate cause of the injury was the driver’s negligence.
    4. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 105.
    $3,607.50 is considered sufficient quantum of damages for injuries to a carpenter sixty-nine years old, which destroyed his earning capacity, estimated at $1,000.00 a year, and medical and hospital bills.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Hodges, Sr., against R. C. Davis.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Mabry, Carstarphen & Garland, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff was knocked down and injured by an automobile owned by defendant and driven at the time by one of defendant’s employees, and he brings this suit to recover damages. He alleges that the driver of the car was grossly negligent in its operation and disclaims any fault or negligence on his part.

As a defense, the defendant sets up gross negligence on the part of plaintiff, it being allege.d that his automobile was being driven in a careful manner, that his driver .was altogether free from fault, and that plaintiff, without looking, stepped in front of the car when it was so near him that the driver could not avoid striking him.

There was judgment in the District Court for plaintiff and the defendant prosecutes this appeal.

OPINION

On the day of the accident, plaintiff was a passenger on an outbound street car running south on Marshall street in the city of Shreveport. He got off the street car at the front end on the right hand side at .a point where Sixth street comes into Marshall street, this being a (place where street cars stop regularly to receive and discharge passengers. There is a double street car track on Marshall street and the outbound cars run on the right hand track, which is west of the center of the street.

When plaintiff got off the car at the front end on his right hand side, he turned to the left, walked inv:front..of the street car, thence across the 'stfqet- to th£ east or lef^-hand side going out.'-V- Jusi^j^. he reached the east edge of;„. the - street and as he was in the act. of stepping up on the curb, he was s'Síick.. by defendant’s automobile, which was going north on the east side of the street.

Automobiles going north on Marshall street run on the east side thereof, so that defendant’s car which struck plaintiff approached him from his right.

Plaintiff testified that before he attempted to cross the street he looked to the right and saw no car approaching. If plaintiff looked, as he says he did, he should have seen the automobile approaching, for the accident occurred in daylight and the street was straight there, with no obstructions. However, plaintiff was then 69 years old, and wore glasses, and while he testified that his eyesight Was reasonably good, it is probable that his vision was not clear.

But even if it be true, as defendant contends, that plaintiff walked into the street without looking and was, in that respect, negligent, the defendant is not relieved of liability under .the facts disclosed.

Defendant’s theory and defense is that plaintiff walked into the street immediately in front of the automobile when it was so close upon him that the driver of the car could not stop it in time to avoid the collision.

That contention is not borne out by the record.

Marshall street at that point is thirty-six feet wide, from curb to curb. The. street car on which plaintiff was a passenger was going south and was on the outbound track, on the west side. Defendant’s automobile, which struck plaintiff, was going north, in the opposite direction, on the east side of the street. The driver of defendant’s ■ automobile, therefore, had full view of the f^reet car while, it was standing still and dfficharging passengers, for it was in the street directly in front of him and, his view was unobstructed. He was near enough to see, and if he had looked he could have seen plaintiff when he stepped from the street car and started across the street toward the east side on which the car was being driven.

According to scale, the distance from the west side of the street car, where plaintiff got off, to the east curb of the street, where he was struck by the automobile, is twenty-seven feet, and from the east edge of the street car to the east curb of the street is nineteen feet. The driver of the automobile, therefore, if he was looking, as he should have been, could have seen plaintiff when he got off the street car and during all the time he was walking twenty-seven feet across the street ahead of him; and if the distance from the west side of the street car be not counted, the plaintiff walked a distance of nineteen feet across the open street from where he entered it to where he was struck by the automobile.

The testimony shows that the automobile was going about fifteen miles an hour, and that plaintiff was walking at a moderate, normal rate. Assuming that he was walking at a rate of four miles an hour, or approximately one-fourth as fast as the automobile was going, the automobile was at least one hundred feet away when plaintiff stepped off the street car and started across the street, and at least seventy-five feet away when plaintiff passed the east edge of the street car on his way across the street; and if plaintiff walked at a uniform rate of speed, he was in the center of the nineteen-foot passage way, between the street car and the curb, when the automobile was approximately thirty-five feet away.

The testimony is undisputed that plaintiff was struck at the curb on the extreme east side of the street or after he had walked the entire distance across. The plaintiff, therefore, did not step into the street immediately in front of the car when it was almost, upon him, but when it was at least seventy-five feet away; possibly further.

The testimony is that the automobile could have been stopped, by application of • the brakes, within fifteen feet, at most; so that defendant’s driver was not deprived of the last clear chance of avoiding the accident.

It is the duty of those who drive automobiles on streets of populous cities to look ahead always and to use every precaution to avoid running over pedestrians.

“The precautions to be. adopted and the steps to be taken in aid of safety increase as the danger of accident and injury increases.”

Jones vs. Chicago, R. I. & P. Ry., 4 La. App. 457; affirmed in 162 La. 690, 111 South. 62.

The accident happened at a point on Marshall street where cars stop regularly to receive and discharge passengers. As the automobile approached, the street car was standing, discharging passengers, within plain view of the driver. He knew or •should have known that some of them would likely attempt to cross the street, and it was his duty to take extra precautions to avoid striking them. He could, and therefore should, have seen plaintiff when he stepped into the open street ahead of him when he was far enough away to stop his car before reaching the point of the accident.

Some of defendant’s witnesses say' that the driver apparently did not see plaintiff until the car was some five or ten feet from him. But the driver cannot be excused for not seeing that which he could and should have seen.

One who causes personal injuries to another through his negligence is liable to the injured party in damages if he had the last clear chance to avoid the injury, even if the person injured was originally guilty of negligence in creating the situation of danger to himself.

McClendon vs. V. S. & P. Ry. Co., 46 La. Ann. 1545, 16 South. 457.

Harrison vs. La. & N. W. Co., 132 La. 765, 61 South. 784.

Jones vs. Mackay Tel. & Cable Co., 137 La. 121, 68 South. 379.

20 R. C. L., 138.

29 Cyc. 530.

Conceding, therefore, as defendant’s counsel would have us do, that plaintiff was negligent originally, still defendant is liable in damages under the last clear chance doctrine, because the negligence of defendant’s driver and not that of plaintiff, was the immediate, proximate cause, of the injury.

We have held that defendant’s driver could have easily stopped his car if he had applied the brakes and they had been effective and thereby avoided the injury. Not only that. If he had swerved his car tq the left instead of to the right, he would have missed plaintiff entirely. Plaintiff was walking toward the east side of the street. When the driver saw plaintiff he turned his car toward the east, the direction in which plaintiff was walking.

There was a space of nineteen feet between the street car and the curb where plaintiff was struck. The driver ran his car upon the curb. Why he did not turn to the left instead of to the right' is unexplained. The driver of the car, while in court during a portion of the time, was not called as a witness. Counsel for defendant stated that he did not call him because he was hostile to. defendant’s cause. He would, no doubt, have made a poor witness for defendant if he had told the truth.

Some of the witnesses for defendant, who were in defendant’s automobile at the time of the accident, say that the driver gave plaintiff no warning of his approach until he was Within five to ten feet of him, and then did not, so far as they observed, sound his horn, but merely exclaimed “lookout, there” and turned the car to the right and ran it into the curb, where plaintiff was hit.

ON THE QUESTION OP DAMAGES

The lower court assessed damages at 3,607.50. Plaintiff received injuries about the head and other parts of the body. On the date of the injury he was sixty-nine years old and in good health. He is a carpenter by trade and was earning $4.00 per day and had regular work. He was injured in February, 1925. The case was tried in December, 1926, nearly two years later, and from the date of the accident to the date of the trial he was unable to do any work at all. Physicians say he cannot work as a carpenter because heavy exercise causes dizziness and he is likely to fall. However, they say he could do lighter work. They say the blow on the head brought about the condition which produced the dizziness. Doctor Williams thinks his disability is permanent. Plaintiff testified that he had suffered a great deal and still suffered with pains in his head and back. His medic'al and hospital bills amounted to $107.50. The injuries, according to the testimony, destroyed his earning capacity altogether. Conservatively estimated, he was able to earn and was earning about $1,000.00 per year, so that up to the date of the trial he had lost, in earnings, nearly $2,000.00. The testimony warrants the assumption that he is still disabled. In addition to the loss of his earning capacity, he is entitled to his medical and hospital bills, and something for his pain and suffering. We think the award of $3,607.50 made by the District Judge correct.

The judgment appealed from is affirmed with costs.


text:
    No. 2934
    Second Circuit
    DICK v. POLICE JURY OF BIENVILLE PARISH, ET AL.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (Syllabus. by the Editor)

    1. Louisiana Digest — Roads, Bridges and Ferries — Par. 4.
    Under Section 27 of Act 95 of the extra session of 1921 the land owner can recover damages on account of the destruction of his improvements in locating the road against the highway commission, but not against the police jury if it had nothing to do with the road’s construction.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by Thomas C. Dick against Police Jury of Bienville Parish, et al.
    Plaintiff appealed from the judgment rejecting his demand against the Police Jury and defendant Highway Commission appealed from the judgment against it.
    •Judgment affirmed.
    E. E. Kidd, G. M. Wallace, of Arcadia, attorneys for plaintiff, appellee.
    W. D. Goff, Arcadia, and W. M. Barrow, Baton Rouge, attorneys for defendants, appellants.
   ODOM, J.

This is a suit against the Police Jury of Bienville parish and the Louisiana Highway Commission to recover $156.00 for the destruction of plaintiff’s property caused by the location of a new highway across his land. There was judgment in the lower court rejecting plaintiff’s demand against the Police Jury but giving him judgment against the Highway Commission as prayed for.

Plaintiff appealed from the judgment rejecting his demand against the Police Jury and defendant Highway Commission appealed from the judgment against it.

OPINION

The plaintiff sold to the Police Jury of Bienville parish a right of way across his land for the building of a new gravel highway. The highway was built by the Louisiana Highway Commission through the Lafayette Construction Company, contractor. In locating the highway on plaintiff’s land a considerable portion of his fence was destroyed, and he brings suit to recover the actual cost to him of replacing the fence.

In the case of Allison versus the same defendants, No. 2933 on the docket of this court, this day decided, we discussed at some length the law applicable to cases of this kind and held that the plaintiff in that case was ¿not entitled to recover.

But the facts in the Allison case were that in the location of the road by the Highway Commission none of plaintiff’s property was destroyed, his claim being for the cost of constructing new fences on either side of the new road, these new fences being necessary because the road ran through his -field.

In the case at bar, the proof shows that in locating the road on plaintiff’s land some of his fence was pulled down and about 350 yards of it burned, leaving his crop exposed. His suit is for the damage done to the improvements on the land in locating the road and not for fencing the right of way, as in the Allison case. Plaintiff testified that he had been damaged in that respect $156.00, and his testimony is not contradicted but is' corroborated by that of Mr. R. C. Deas, his manager.

Compensation for such damage is especially provided for in Section 27 of Act No. 95 of the extra session of 1921, which reads in part as follows:

“If any improvements of the land owner or any crops upon the land are damaged or destroyed, by the location of such highway, then such owner may recover additional compensation for the actual injury or destruction of such improvements or crops.”

In addition to this, plaintiff testified that it was definitely understood and agreed that whatever fences on his property might be removed or destroyed' by the location of the road were to be replaced. He says that the right of way deed was sent to him and that he refused to sign it because there was no provision in it for the replacement of his fences, and that he was then assured that it was the custom to replace fences removed or destroyed and that such would be done, whereupon he signed the deed. This testimony was admitted without objection and is not disputed.

Under the proof administered and the law, above cited and quoted, plaintiff is entitled to recover the amount of his damage.

The Louisiana Highway Commission set .up in answer that under the contract which it had with the Police Jury, the Police Jury was to provide the right of way for the road and that if any damage has been occasioned plaintiff, the Police Jury and not the Highway Commission is responsible therefor.

The damage sustained by plaintiff was not on account of the right of way across his land but on account of the destruction of his improvements in locating the road on the right of way.

The Police Jury obtained the right of way for the road. The road is a part of the general highway system which the Highway Commission was authorized to build under the act (Act No. 15 of 1921). It was a state project, built under the control and supervision of the Commission. The Police Jury had nothing to do with its construction.

The General Highway Act (Act No. 95 of 1921, Section 27) gives the land owner a right to sue for damages. It provides:

“After the Commission has laid out a road over a certain tract of land, and the contract therefor has been let and begun work thereon, the land owner shall not be entitled to prevent or retard the construction of the road by any legal process but shall be remitted to an action for damages.”

The judgment appealed from is affirmed.


text:
    No. 2758
    Second Circuit
    CLEATON v. DOWLING
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Brokers — Par. 16; Things — Par. 4; Timber — Par. 1.
    Standing timber is not real estate and, therefore, Act No. 236 of 1920 requiring real estate brokers to obtain a license is not applicable. (In accordance with Supreme Court decision.)
    2. Louisiana Digest — Appeal—Par. 625.
    The appellate court will not disturb a judgment of the trial court based solely upon facts unless manifestly erroneous.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. S. Price, of Ruston, attorney for plaintiff, appellee.
    C. B. Roberts, J. W. Elder, of Ruston, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to collect $1250.00, which sum, he alleges, is due him by defendant under a verbal contract as commission on a sale of standing timber.

He alleges that Dowling, the defendant, who owned a tract of timber, agreed to pay him 5% on the sale ¡price thereof if he, plaintiff, would find a purchaser.

He alleges that he found a purchaser, informed defendant of that fact, that the sale was made, and that defendant now refuses to pay his commission.

The defendant contests the claim on the ground that he made no such verbal contract with plaintiff to pay him anything, and that plaintiff’s claim is therefore without foundation.

The lower court gave plaintiff judgment as prayed for, and defendant appealed.

Defendant, in limine, tendered an exception of no cause of action upon the ground that the pleadings disclosed that plaintiff was not a licensed real estate broker. The lower court overruled the exception and decided the case on its merits. The case was appealed to this court and we, without deciding it on its merits, reversed the judgment of the lower court and sustained the exception. The case was carried to the Supreme Court on a writ. That court reversed this court on that point, holding that standing timber is not real estate, and therefore Act No. 236 of 1920 requiring real estate brokers - to obtain a license is not applicable. The case was remanded to this court with instructions that it be heard and decided on the merits. It is now before us on the merits.

OPINION

Only questions of fact are involved. Only three witnesses testified in the case —plaintiff, defendant, and Mr. Edwin Win-lock, president and manager of the Win-lock Lumber Company, which company purchased defendant’s timber for a cash consideration of $25,000.00.

Plaintiff testified that defendant agreed to pay him 5% commission on the sale price of the tract of timber if he, plaintiff, would find a purchaser. He says the price was not fixed, it being agreed that he was to find a purchaser, send him to defendant, and that defendant and the purchaser would arrange the price — in other words, all plaintiff had to do to earn the commission was to find and put defendant in touch with a purchaser.

He says his conversation and agreement with defendant took place on a street in Ruston; that he saw Edwin Winlock, president of the Winlock Lumber Company, on the following morning and told him he could purchase the timber, and that Winlock said he would buy if the price was satisfactory. He then, so he testified, went to defendant and told him he found a purchaser for his timber in the person of Edwin Winlock, president of the Winlock Lumber Company.

Mr. Winlock, called as a witness for plaintiff, testified that he obtained his information that this tract of timber was for sale from the plaintiff, Cleaton, although he could not say positively that plaintiff told him who owned it. He said that subsequently he met defendant and that defendant mentioned the sale of the timber to him and that he looked at the timber, agreed upon a price with defendant, and finally closed the sale at $25,000.00.

Winlock did not testify that he went to defendant to purchase the timber, but stated that his meeting with defendant was by chance and that defendant brought up the question of the sale.

The defendant testified that he had discussed the question of the sale of his timber with Cleaton, the plaintiff, but, he said:

“I didn’t discuss it with Mr. Cleaton on the basis of giving him any contract at all.”

His testimony, in substance, is that he and Cleaton happened to be in the lobby of the Ruston Hotel at the same time, sitting about twelve or fifteen feet apart; that Cleaton called him over to him and that the two engaged for a while in conversation, as they usually did; that Cleaton asked if he cared to sell his timber, whereupon, defendant says, he told Cleaton that Mr. Roy and others had been trying to sell it for him and that he had decided to sell it himself without the intervention of an agent; that Cleaton suggested that he be permitted to sell it on a 5% commission basis, and that he informed Cleaton that he “didn’t want anyone to help me sell it at the present time”.

He said, further, that he told Cleaton that he had two prospective purchasers in view, namely: Mr. Winlock and Mr. Meeks, and that he was on his way to see Winlock then, whereupon Cleaton told him that they were 'the parties he had in view.

He says he told Cleaton that if he did not sell to Winlock or Meeks he would see him later. He denies that Cleaton told him that Winlock would buy.

Plaintiff was called in rebuttal after hearing defendant’s testimony. He denied that he had the conversation with defendant in the lobby of the hotel but said the conversation took place in front of the hotel, near the railroad, and reiterated his former statement that defendant had agreed to pay him a 5% commission on the sale if he would find a buyer.

The testimony of the plaintiff and defendant on the vital point as to whether there was a contract is as contradictory as can be imagined and is utterly irreconcilable.

There are, however, some circumstances which favor plaintiff’s side of the case.

It does not seem reasonable that plaintiff would have sought Winloek and would have told him that this timber was for sale if defendant had not agreed to pay him a commission for his services in finding a buyer.

Again, defendant says he had Winloek in mind as a prospective purchaser at the time he talked with plaintiff. If he had, it is rather strange that he did not busy himself to find him until after he had the conversation with plaintiff. Defendant says that when he talked with plaintiff he was then on his way to see Winloek. That may be true, and, if it is, it is unfortunate for him that he happened to seek Winloek at the very time he and Cleaton had their conversation. Defendant says, however, that he had gone to Winlock’s lumber shed on a previous occasion to see him but failed to find him home. That is another unfortunate circumstance.

Again, Mr. Winloek says that in his' conversation with defendant, defendant told him not to say anything about the negotiations with reference to the sale because someone might claim a commission on the sale; but he said he could not be positive that defendant mentioned Cleaton’s name.

Also Mr. Winloek was asked if defendant at any time during his negotiations for the sale of the timber said anything about having had the matter of the sale up with plaintiff, and had an agreement with him of any kind, and he' answered:

“It is my recollection that he did.”

These circumstances and the testimony of Winloek corroborate plaintiff’s testimony.

In a most elaborate written opinion, in which he discussed the testimony in detail, the learned District Judge, in closing, said:

“The court listened attentively to the testimony of the witnesses, noted their manner of testifying and the reasonableness of their statements, and has since carefully read and reread the testimony, and has reached the conclusion that the evidence preponderates in favor of the fact that there was an agreement entered into by and between plaintiff and defendant as detailed by plaintiff in his testimony.”

It is a rule long established and of universal application that an appellate court will not disturb a judgment of a trial court based solely upon questions of fact, unless manifestly erroneous.

See Louisiana Digest, ■ Vol. 1, Sec. 625, page 591 — Appeal.

There is no manifest error in the judgment appealed from and it is accordingly affirmed.


text:
    No. 2350
    Second Circuit
    ROBINSON v. TATUM MOORE, Intervenor
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 168.
    There is no law prohibiting a vendee of a chattel on which there rests a vendor’s lien from making a valid sale thereof, and the fact ■ that one who buys from such vendee knew of the existence of the lien does not render the sale null and void.

      2. Louisiana Digest — Sales—Par. 168.
    “When there is no question of insolvency or fraud, a purchaser on credit of movable property may sell it to a third person who knows that he has not paid the price, and the original vendor loses his privilege therefor (save in the case of agricultural products, under certain conditions) when the property passes out of the possession of his purchaser and into the possession of such third person.”
    3. Louisiana Digest — Sales—Par. 309.
    The vendor’s lien attaches to personal property only so long as it remains in the hands of the vendee.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by G. R. Robinson against J. A. Tatum; O. F. Moore, Intervenor.
    There was judgment for plaintiff and intervenor appealed.
    Judgment reversed and writ of sequestration dissolved.
    Don E. Sorelle, of Many, attorney for plaintiff, appellee.
    R. A. Fraser, of Many, attorney for intervenor, appellant.
   ODOM, J.

Plaintiff sold to defendant, J. A. Tatum, sixteen work oxen and two log wagons for a consideration of $1200.00, of which amount $600.00 was paid and the vendee executed his two promissory notes each for $300.00 for the balance of the purchase price. These notes were not paid when due, and the plaintiff brings this suit against Tatum to collect the notes and asks that his privilege as vendor be recognized and enforced against the chattels sold.

Under proper allegations, plaintiff procured the issuance of a writ of sequestration and the property was sequestered.

O. F. Moore intervened in the suit, claimed ownership of the cattle and wagons, specifically alleged that he purchased said property from Tatum, the defendant, on August 19, 1924, took immediate possession thereof and was in possession on the date plaintiff’s suit was filed and the property sequestered, and he prayed that there be judgment decreeing him to be the owner of the property and that plaintiff’s claim of a privilege thereon be denied.

The defendant, Tatum, answered both the petition of plaintiff and that of intervenor, admitting the debt but denying that plaintiff had a lien and privilege on the chattels and admitted that he sold the property to the intervenor as alleged.

There was judgment for plaintiff against Tatum for the full amount sued for, recognizing his vendor’s lien on the property sold and maintaining the sequestration, and further, rejecting the demand of the intervenor and decreeing that the sale of the property to intervenor was null and void.

The intervenor appealed.

OPINION

The defendant, Tatum, having admitted his indebtedness to plaintiff as alleged, there are presented for determination but two questions, one of fact and the other of law.

First: Did the defendant, Tatum, sell to Moore and deliver to him the property which he had purchased from the plaintiff and on which there was a vendor’s privilege for the balance of the purchase price; and,

Second: If there was such a sale and delivery to Moore by defendant, did that sale divest the vendor’s privilege, conceding that Mbore, the purchaser, had knowledge of the fact that the purchase price of the property had not been fully paid.

The lower court correctly held that Tatum did sell the property to Moore; but it set aside the sale, on the ground, as we gather from statements in counsel’s brief, that Moore knew when he purchased the property that the purchase price had not been fully paid.

The sale from Tatum to Moore and the delivery of the property is established beyond question. Tatum alleged in his ■ answer that he had sold and delivered it to Moore and he so testified. Moore and others swore that he, Moore, purchased the property and that the same was delivered to him in due course. Counsel for plaintiff drew from some of the witnesses statements to the effect that Tatum, the defendant, had told them that he had not sold to Moore but had turned the oxen and wagons over to him so that he, Moore, could use them and work out a debt which .he owed Moore. But, as stated, Tatum in his answer and as a witness stated that he had sold to Moore and Moore and others swore that the sale was made.

The lower judge, therefore, correctly held that there was a sale, but he' erred in setting the sale aside and in recognizing plaintiff’s vendor’s lien on the property.

During the progress of the trial the court propounded the following question to Moore, the intervenor.

“Mr. Moore, did you know the teams had not been paid for at the time you bought them?”

And Moore answered:

“Yes, sir; I knew the notes hadn’t been paid.”

The plaintiff, in answer to Moore’s intervention claiming ownership of the property, alleged:

“That should the defendant, J. A. Tatum, join said intervenor in such claim, that your petitioner then alleges said pretended sale is fictitious and no delivery of said property has ever been made to intervenor as he alleges.”

The court below did not hold that the sale was fictitious or that no delivery had been made. He could not so hold, as the record utterly fails to disclose any fraud or bad faith or collusion between Tatum and Moore. The sale was in good faith and delivery was promptly made.

But the court held that inasmuch as Moore knew that the balance of the purchase price had not been paid, the sale should be set aside. We know of no law or precedent warranting such holding. To the contrary, our Supreme Court has held the other way.

In the case of Burdeau vs. His Creditors, 44 La. Ann. 11, 10 So. 395, the court said:

“Evidently there is no prohibition against a sale being made by a vendee' of goods which are purchased on a credit; and no fraudulent intent can attach to the act, though his contract be thereby violated.”

And, in a later case, Dreyfous vs. Cade, 138 La. 297, 70 So. 231, it was specifically held, to 1 quote the syllabus written by the court:

“There are various provisions of our law which penalize purchases and sales of property with intent to cheat and defraud; but when there is no question of insolvency or fraud, a purchaser on credit of movable property may sell it to a third person who knows that he has not paid the price, and the original vendor loses his privilege therefor (save in the case of agricultural products, under certain conditions) when the property passes out of the possession of his purchaser and into the possession of such third person.”

And, in a still later case, that of Pierson vs. Carmouch, 146 La. 798, 84 So. 59, the court held that a purchaser on credit of movable property could validly give it in pledge to one who acted in good faith so as to vest in the pledgee a right superior to that of the vendor, even though the pledgee knew that the purchaser had not paid the purchase price.

See Continental Bank & Trust Co. vs. McCann, 151 La. 311; Yates vs. Merritt, 151 La. 344, 91 So. 759.

The vendor’s privilege attaches to movables only so long as they remain in the hands of the purchaser.

Civil Code, Articles 3217, 3227.

For the reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be set aside; and, proceeding to render such judgment as should have been rendered, it is now ordered, adjudged and decreed that the plaintiff, C. R. Robinson, have judgment against and recover from the defendant, J. A. Tatum, the sum of six hundred dollars, with interest at 8% per annum on three hundred dollars thereof from July 1, 1924, until paid, and interest at 8% per annum on three hundred dollars thereof from January 1, 1925, until paid; with reservation of plaintiff’s right to sue the sureties on the notes. And further ordered that the writ of sequestration sued out by plaintiff he dissolved and set aside and that plaintiff’s demand for recognition of his vendor’s privilege on the property sold by him to Tatum be rejected. And further ordered that the title of O. F. Moore, intervenor, to the property in controversy be recognized, and that said property be delivered to him free from any right or privilege of the vendor, Robinson. Defendant, Tatum, to pay the costs of the main suit. All other costs to be paid by plaintiff, Robinson.