text:
    No. 3048
    Second Circuit (Second Division)
    GOODE-CAGE DRUG CO. v. IVES
    (April 9, 1931. Opinion and Decree.)
    (May 7, 1931. Rehearing Refused.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant,. appellee.
   STEPHENS, J.

The plaintiff alleges that it sold and delivered to the defendant its root beer offer No. 13, which consisted of 50 gallons of root beer syrup, one 17-gallon dispenser, one carbonator, and two dozen root beer steins, for the sum of $346, for which said sum it prays for judgment.

The defendant answered admitting the purchase of the articles, as above described, but denied its liability for the purchase price thereof because of the breach by the plaintiff of certain alleged guaranties and warranties, and prayed that the sale be rescinded, and that the plaintiff’si demands be rejected; and, further, that the defendant recover against the plaintiff in reconvention in the sum of $695.25 alleged to have been the profits which the plaintiff guaranteed that the defendant would earn by the use of the articles purchased.

There was judgment in favor of the defendant annulling and rescinding the sale of the articles referred to, and rejecting the demands of plaintiff; and further judgment rejecting the reconventional demand of defendant. The plaintiff appeals, and the defendant has abandoned his reconventional demand.

On or about May 17, 1926, at a time when the defendant was engaged in the operation of a retail mercantile establishment, restaurant, and cold drink stand at Kickapoo, near Gloster, in DeSoto parish. La., he purchased from the plaintiff, through its salesman, Mr. Fred McClure, the above-described articles, designated as the Rochester root beer offer No. 13, for the price of $346. The equipment and materials were duly delivered and the ‘ equipment set up by the defendant. Within . a week thereafter Mr. Garrett, the salesman for the J. Hungerford Smith Company of Rochester, N. Y., manufacturers of the articles sold, called on the defendant , at his place of business, checked over the apparatus and found the same in good or-1 der. He gave the defendant some instruc- ; tion with reference to the amount of sugar to be used in the syrup mixture, and left : the premises without hearing any partieuj lar complaint, from the defendant with reference to the quality of the drink or the expense of making it. In connection with ■ this visit of Mr. Garrett, the defendant ' testified as follows:

“Q. After he regulated, showed you those things was it riot a good drink?
“A. I don’t remember that it was a bad drink, I won’t say that the drink was no good. I don’t remember telling Mr. Garrett that I didn’t like the drink, don’t believe that I did, I didn’t believe the drink was what it was supposed to have been on the start, feeemed to me there was too much carbonated water and not enough syrup.”

The defendant continued the use of the equipment and the sale of the drink for approximately three months. During said period he, from time to time, complained of .the drink to Mr. McClure as unpalatable, flat, and therefore undesirahl.e.

Upon the trial of the! ease the defendant produced some six or seven witnesses who testified that they did not like the drink. He himself testified that the cost of the production was far in excess of the amount of the cost thereof as represented by the plaintiff, and that he was therefore unable to make the profit from the production and sale of the drink which had been guaranteed by the pláintiff. He attributed the excessive cost to the large amount of carbonic acid gas required in making the drink. He testified that a drum of gas which cost $5.25 was consumed in a few days, whereas, the evidence shows conclusively that such drum should give service for from six to eight weeks. He made no specific complaint about the excessive cost of the drink until after the suit was filed.

Under the terms of the sale the purchase price did not become due until September 1, 1926. Two days prior to that date the defendant discontinued the use of the equipment and wrote the plaintiff as follows:

“8-29-26
“Goode-Cage Drug Co., Shreveport, Louisiana.
“Gentlemen: I have advised your Mr. McClure a number of times, that the Rochester Root Beer Dispenser is unsatisfactory, and not as represented to me.
“I ask that you advise me what disposition you wish me to make of same.
“Yours very truly,
“R. A. Ives.”

The plaintiff immediately acknowledged receipt of this communication, and assured the defendant that the matter would be taken up with the manufacturer of the articles sold.

On or about the 1st of October thereafter, Mr. Garrett, accompanied by an expert service man from the factory in Rochester, called at defendant’s place of business to determine what the trouble was, if any existed. The defendant refused to be a party to the examination, stating, in effect, that he was not interested, and did not want that root beer barrel or any other. The effort to locate the trouble was abandoned, and on October 6, 1926, the plaintjff wrote the defendant, in part, as follows:

“Inasmuch as the suppliers of this merchandise, The J. Hungerford Smith Company of Rochester, N. Y., took the trouble to send two representatives to your place of business, to adjust this matter with you, and their report is that you would not let them inspect the Dispenser of which you complain, stating to them that it was in good order but did not draw the Root Beer to suit you, we are reluctantly compelled to believe what we have suspected for some time, that you have no just cause, for complaint and are simply trying to back out of your purchase.”

The counsel for the defendant contends that the contract of sale should be rescinded because the warranties and guaranties were not fulfilled in two particulars : First, that the drink produced by the equipment was no good; and, second, that the equipment in producing the drink would not yield the profits guaranteed.

We are of the opinion that there was no special warranty or guaranty that the drink was either good or could be produced at a certain price. The contract of sale is in writing, and neither the appealing qualities of the drink, nor the cost of production thereof, is mentioned in the instrument. The ' contract contains, the following clause:

“No agreement affecting this order shall be binding unless written thereon.”

The alleged warranties relied on by the defendant are founded on certain statements made by Mr. Garrett and Mr. McClure that the drink was delicious and desirable, and upon the following excerpt from the advertising matter published by the manufacturer of the articles sold:

“This offer (referring to Offer 13 the one herein purchased) shows a profit of $695.25 or 211% on the investment. The cost per service is $.01-3/5.”

The statements by the agents of 'plaintiff that the drink which could be produced by the equipment was delicious or desirable were merely sales talk, and cannot be construed as a binding oral warranty ingrafted on the written contract.

“As a general rule a contemporaneous oral warranty cannot be ingrafted on a written contract or bill of sale which on its face purports to evidence the entire agreement of the parties, irrespective of whether it is: silent on the matter of warranties or not.” R. C. L. vol. 23, sec. 224.

The language used in the statement in the advertising matter, above quoted, cannot be reasonably construed to guarantee the profit referred to, and, even if it could so be construed, it is in no sense a part of the written contract herein sued on, and cannot be so considered.

There exists, however, a general or imp-plied warranty that the equipment was suitable for the purpose for which it was manufactured and sold, and, if the defendant is entitled to any relief, it is that provided by article 2520 of the Civil Code:

“Redhibition is the avoidance of a sale on account of some vice or defect in the tiling sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

But, in order for the defendant to avail himself of such relief, he must first offer to place the plaintiff in the same position in which he was before the sale; and he must establish that a latent defect existed in the equipment which rendered it unfit for the purpose for which it was intended, and that such defect existed at the time of the sale.

The defendant has not only failed to show that a defect existed at the time of sale which rendered the equipment useless for the purpose for which it was purchased, but by his conduct in refusing to permit the demonstration of the equipment he has prevented the plaintiff from ascertaining whether a defect existed. We cannot conclude, because some half dozen persons did not like the drink as prepared by the defendant, that the equipment was so defective that it was useless for the purpose for which it was intended. Evidently there was. a leak in the gas line or carbonator, which accounts for the excessive use of gas, but the testimony shows that such a leak was to be expected at any time, and • could be easily and readily located and stopped.

The defendant has not offered to restore the status quo, and could not have executed the offer if he had made it. He has used the equipment for a whole season and consumed a considerable portion of the root beer syrup purchased. We think the defendant justified in using, the equipment and the goods for only such time as was necessary to discover the defect complained of, which, from the date of delivery, could not have reasonably exceeded two wéeks. If he, after such time had elapsed, had pointed out the defects or vices of the equipment and offered to return the goods, we are of the opinion that he would be entitled to have the sale rescinded, provided the defects were of such nature as to render the articles unfit for the purpose for which they were purchased, but the continued use of the articles sold throughout the root beer drinking season bars him from such recovery.

‘■Where the article is one which must be used before its quality can be ascertained, this not being apparent from examination, it is the right of the buyer to make use of the property or such portion thereof as may be actually necessary to determine the quality, and such use does not affect the right to reject for failure to comply with the contract in that respect. On the other hand, if, after knowledge of the breach of warranty as to quality, the buyer continues to use and consume the goods received by him, but not in order to make a proper test as to quality, he waives his right to rescind and return the amount unconsumed.” R. C. L. vol. 24, Sales, sec. 575. ,

The defendant has not sustained the burden resting upon him of establishing the existence of a defect at the time of the sale, which would justify the court in rescinding the contract, and it is impossible for the defendant to restore the status quo. The defendant has likewise failed to establish a basis for judgment for a diminution of the price.

It is therefore ordered, adjudged, and decreed that the judgment of the district court, except in so far as it rejects the defendant’s reconventional demand, be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against the defendant in the sum of $346, with legal interest from judicial demand. The judgment of the district court rejecting the defendant’s reconventional demand is affirmed, the defendant to pay all costs.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 2950
    Second Circuit (Second Division)
    GLASS v. STEWART ET AL.
    (April 9, 1931. Opinion and Decree.)
    (May 7, 1931. Rehearing Refused.)

      L. K. Watkins, of Minden, attorney for plaintiff, appellant.
    E. L. Stewart and Dan Stewart, of Min-den, attorneys for defendants-, appellees.
   CULPEPPER, J.

Plaintiff brings this suit as a possessory action. Defendant filed an exception of no cause or right of action, alleging:

“1. Plaintiff does not allege how he acquired the property nor that he ever possessed it by virtue of any title, or right of possession.
“2. He does not allege he had actual physical possession of the property by virtue of any title of ownership quietly -and peaceably without interruption and without disturbance for more than one year next preceding the disturbance, or that he has suffered a real disturbance within less than one year from the filing of the suit.’’

This exception was referred to the merits by the court, and the case was thereupon tried on its merits. From a judgment rejecting plaintiff’s demands, plaintiff has appealed.

EXCEPTION

Plaintiff alleges he became the owner by purchase at tax sale in 1910 of the southwest quarter of northwest quarter, section 13, township 19, range 9 west; that same was assessed and sold as. property belonging to the estate of Mary Jones; that ‘‘he and his authors in chain of title had actual possession of the property and that he, since his acquisition of same, had real, continuous, and actual peaceable possession of same in person and by tenants and agents, exercising all the rights as owner, until the death of his wife in the year 1919, and since as owner with her children Mary and Minnie, after her death, and usufructuary until sometime in the month of March, 1926, when defendants illegally and by threats and intimidation ordered Shelley Johnson, plaintiff’s tenant on the property at the time, not to cultivate the land, and prevented said tenant from cultivating it for that year.”

Taking the petition as a whole, it recites, we think, all of the elements, necessary to form the basis of a possessory action.

PLEA TO JURISDICTION

Defendant has filed a plea to the jurisdiction of this court. The motion recites that neither the amount in controversy nor the nature of this suit gives this court jurisdiction of the case.

Counsel contends in his brief and oral argument that both parties to- the suit, as well as its subject-matter, are in ward 4, Webster parish, and are therefore subject to the jurisdiction of the city court of Min-den, in accordance with Act No. 18 of 1926. Since there is nothing in the record to show the parties litigant and the subject-matter of the litigation are in the ward named by counsel, this court cannot be called upon to go out of the record for information in that regard, and the case will be considered from the showing in the record.

It is true that plaintiff's original^ petition does not set out the value of the property involved. However, the court permitted counsel for plaintiff, during the trial of the ease, to file an amended petition for the purpose of alleging value, then permitted testimony to follow establishing the value as being in-excess of $100. Defense counsel objected to' the filing of the amended petition and to the testimony in support of the allegations upon the ground that it came too late, and changed the issue. As stated by the trial judge, the filing of an amended petition is within .the sound discretion of the court, and we see no reason to reverse his ruling. The amendment did not change the issues, neither did it appear to work any hardship upon defendant, coming as late as it did. Code of Practice, art. 419, provides:

“After issue joined, the plaintiff may, with the leave of the court, amend his original petition, provided the amendment does not alter the substance of his demand by making it different from the one originally brought.”

Amendments to the pleadings should always be allowed in promotion of justice, where they do not change the issues or cause delay. These matters always address themselves to the sound discretion of the court. It is apparent that the amended and supplemental petition filed in this case did not change the issue, nor did it cause any delay, nor do we see wherein' it worked any hardship upon the defendant. The ruling of the trial court, therefore, in allowing the filing of the supplemental petition, was not erroneous. The testimony taken in support of the amendment fixes the value of the property involved as being in excess of $100, which brings the case within the jurisdiction of this court, and the plea to the jurisdiction is therefore overruled.

MERITS

Defendant’s answer is a general denial; avers possession of the property to be in defendants; and denies specially having in any manner disturbed plaintiff. The case therefore presents an issue for determination solely as to whether or not plaintiff had possession of. the property within the meaning of the Code, as forming the basis of a possessory action, and, if so, whether plaintiff was disturbed, either in law or in fact. Code of Practice, art. 53.

Plaintiff testified that immediately after he purchased the property in 1910 he went out to where it was, and got two negroes to point out the lines to him. He says he had no opportunity to rent it immediately, but did rent it in 1917 or 1916 to John Harris; then rented it to Lew Harris;, then two years later to William Wattree; the next year to Jim Wattree; then skipped one year and rented it to John Harris and Lev Richardson.. By reference to a date on an unsigned note plaintiff had, he fixed the year as being in 1925 when he rented it to Harris and Richardson. He says he rented it on February 10, 1926, to Shelley Johnson, for that year, taking Johnson’s note for $35 for rent, which note he has. tiled in evidence. He further testifies that Shelley Johnson was on the place preparing to cultivate same, when the alleged disturbance -took place.

Plaintiff called several witnesses, all but one being Colored people who had worked the land. It is shown by their testimony as well as by that of plaintiff that the land was cultivated by some one of them at various times, but does not show a continuous cultivation from year to year, some years being skipped, during which it was cultivated by no one. The testimony shows that John Harris and Lev Richardson rented the place from plaintiff in 1925, and actually worked, same that year. The testimony shows that Lew Harris rented it from defendants in 1923, but that the plaintiff, upon learning that Harris had rented it from Mr. Stewart, went to Harris, and told him that the land was plaintiff’s property, and that Harris would have to pay rent to plaintiff. Harris worked the land that year and paid the rent to Mr. Glass at the end of the year; Mr. Stewart not protesting against his doing so. In the year 1924 Harris says he rented it from Mr. Glass direct, and paid the rent to him. Mr. Stewart made no protest whatever against Harris renting it from Mr. Glass- and paying him the rent for that year.

On February 10, 1926, Shelley Johnson applied to plaintiff to rent the land for that year; plaintiff rented it to him and took his note for $35 to cover the rent. It was some time subsequent to February 10, 1926, when one of the Mr. Stewarts saw Johnson and told him he had better see his brother, the other Mr. Stewart, about renting the place, because the place belonged to them. Johnson, it seems, called to see the other Mr. Stewart, did not find him at home, and left. In a few days thereafter, this- Mr. Stewart went out to where Johnson was at work on a building for a Mr. Fogle. Johnson says Mr. Stewart told him the land belonged to him (Stewart), and that he (Johnson) should not work it, unless he rented it from Mr. Stewart. Johnson says he then decided to let the land alone. As a result, Johnson abandoned further steps toward cultivating the land. Johnson testifies that he had not gone on the place to cultivate it, but that he had purchased some farming implements preparatory to cultivate thq land, and was about ready to begin the actual cultivation when Mr. Stewart came to him and told him what he did.

Mr. Stewart testified that he told Johnson the place belonged to them (meaning the two Stewarts), and, if Johnson worked it, he "must pay them the rent. Mr. Stewart then says that Johnson told him he was not going to do anything, and said he was going to get his note back from Mr. Glass., Johnson never did go upon the place nor do' anything towards working it after the conversation with Mr. Stewart.

Johnson testified he intended to work it, and would have worked it, had not Mr. Stewart told him what he*did.

The testimony on behalf of defendants discloses that they acquired the property at tax sale in 1896, in the name of the estate of Mary Jones. They did very little toward taking actual possession under their deed. There is. no record of any assessments to them filed in evidence showing that they ever paid taxes on the land. They never did rent it until about 1923, when they rented it to Lew Harris, with the results as above stated.

Mr. Stewart says he gave Henry Brown permission to cut and sell some fire wood from the land at times, also to plant a melon patch thereon in 1924, or 1925, but neither charged nor collected any rent or other compensation from him. Defendants- sold the merchantable pine timber on the land in 1924 for $400 cash, giving five years in which to cut and remove it. The testimony does not show there has been any effort to cut and remove the timber, and, until that is done, the mere fact of selling the timber would not amount to a taking of actual corporeal possession Of the property.

Neither did the fact that defendants visited and walked over the land and made some effort to sell it constitute a taking of actual corporeal possession of it. This only indicated that they claimed to own it, but nothing more. There was only one occasion when defendants undertook to take actual physical possession of the property which would constitute a detention, previous to 1926. That was the occasion when they rented it to Lew Harris.

During all the years in which both plaintiff and defendants claimed ownership of this property, plaintiff was by ffir the most active in taking actual corporeal possession, in that he rented it and collected rents from it during a number of years. He paid taxes on it a greater portion of the time, and on each occasion defendants attempted to take possession they were met by vigorous protests from plaintiff.

Article 3433 of the Civil Code specially provides that the, proprietor of a house or other tenement possesses it by his tenant. Plaintiff has definitely proved his actual possession of the property in this manner, and that his possession 'began in 1916 or 1917, and continued thereafter down to the moment of the disturbance. It is true he did not have a tenant actually occupying the premises at all times. But this was not necessary under the provisions of the Civil Code and the well-settled jurisprudence thereunder.

Article 3442 of the Civil Code provides that:

“When a person has once acquired possession of a thing by the corporal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.” Handlin v. Weston Lbr. Co., 47 La. Ann. 404, 16 So. 955.

Article 3443 provides that:

“This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact.”

From the evidence, plaintiff never at any time showed any intention to abandon his possession taken of the property in 1916 or 1917. On the contrary, his intention was a continuing one. The fact that defendants gave way to plaintiff the year Lew Harris worked the land, permitted plaintiff to collect the rent, and permitted Harris to rent direct from plaintiff the following year, indicated an abandonment by defendants of any intention they may have previously had of taking or holding possession.

It is clear from, the foregoing, and from the evidence in this case, that plaintiff’s possession of the forty acres of land in dispute was that of a continuing actual corporeal possession; that it was such a possession as to entitle him to bring a possessory action, if disturbed, under article 49 of the Code of Practice.

It remains to determine whether or not defendants did in fact or in law disturb plaintiff in his possession of this property. Article 50 of the Code of Practice provides:

“The disturbance which gives rise to the possessory action may be of two kinds: disturbance in fact, or disturbance in ia>"

Article 51 provides:

“Disturbance in fact occurs when one, by any act, prevents the possessor of a real estate, or of a right growing from such an estate, from enjoying the same quietly, or throws any obstacle in the way of that enjoyment, or evicts him through violence, or otherwise.”

We think the evidence clearly shows that defendants’ acts resulted in the failure of plaintiff’s tenant to cultivate the land, thereby depriving plaintiff of the benefits which he would have received therefrom. They caused the tenant to discontinue the leasehold and to desist from further preparations or efforts to work the land. It might be that, had the tenant been a white man, he would not have been deterred, but would have continued on and worked the place. Johnson being a colored man, however, he was more easily influenced by Mr. Stewart. This- Mr. Stewart evidently knew at the time. Those acts no doubt constituted obstacles thrown in the way of plaintiff, which prevented plaintiff from holding and enjoying the possession of the premises, which he at the time was enjoying peaceably, quietly, and undisturbed, and had been for more than one year preceding. We therefore conclude that plaintiff had been in quiet and undisturbed possession of the land for more than one year prior to the filing of this suit, and that the acts of defendants constituted a disturbance in fact of plaintiff in that possession.

For the reasons above set forth, the judgment of the lower court is hereby reversed. There is now, therefore, judgment in favor of plaintiff, Alberta Glass, and against defendants, E. L. and D. W. Stewart, as prayed for, decreeing plaintiff to be in the possession of the southwest quarter of northwest quarter, section 13, township 19, range 9 west, Webster parish, La., known as the Mary Jones Place.

It is further ordered and decreed that writ of injunction issue as prayed by plaintiff, permanently enjoining and restraining defendants from further trespassing on said property, or from interfering in any way with plaintiff and his tenants in their possession and occupancy of same.

It is further ordered that defendants pay costs in both courts.


author: DREW, J.

text:
    No. 3902
    Second Circuit
    EVANS v. BIG CHAIN STORES, INC., and TRAVELERS’ INS. CO. (RHODA EVANS, Intervener)
    (February 26, 1931. Opinion and Decree.)
    (April 19, 1931. Rehearing Refused.)
    (May 25, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Foster, Hall, Barret & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellees.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for intervener, appellee.
   DREW, J.

This is a suit under the Workmen’s Compensation Laws. The contest is between the widow of deceased employee and his mother. The plaintiff, who is the widow, sued for compensation. The mother of the employee, Rhoda Evans, intervened, setting up an adverse claim. Roosevelt Evans, husband of the plaintiff and son of the intervener, was an employee of the Big Chain Stores, Incorporated, and it is agreed by all parties to the suit that Roosevelt Evans was injured on May 11, 1929, while working in the scope and course of his employment, and that he died as a result of his injuries. In the agreed statement of facts dictated into the record, it is stated that the business of. the .employer and the work of the employee placed deceased within the protection of the Workmen’s Compensation Act (Act No. 20 of 1914 as amended). It is also agreed that' the employee was earning the sum' of $17 per week.

Plaintiff sued for the sum of $1,656, payable at the rate of $5.52 per week for a period of three hundred weeks from the 21st day of May, 1929, with interest on said weekly payments. Plaintiff' alleged that, at the time of the injury. and death of her husband, he was providing a home for her, was frequently with the plaintiff at said home, and that she and her hus^ band were living on affectionate terms as man and wife, and, therefore, that the plaintiff was living with her husband at the time of his injury and death within the meaning of the Workmen’s Compensation Laws of the State of Louisiana. • In the alternative, plaintiff alleged that, if the court should hold that she was not living with her husband within the meaning of the compensation laws of this state; that she was actually and wholly dependent upon him for support at the time of his injury and death; that he provided a home for her, paid all her living expenses, particularly her room rent, .meals, washing, and other necessities; that she was ill, and had no other means of support at the time of the injury and death of her husband except the earnings of her husband-.

The intervener, Rhoda Evans, denied the allegations Of plaintiff’s petition on the question of dependency, and denied that plaintiff was living with her husband as man and wife, as contemplated by the compensation laws of Louisiana, and alleged that plaintiff and deceased had not lived together as man and wife since 1923; further alleging that the deceased lived with intervener, his' mother, and was her main support, and that she was entirely dependent upon his earnings for her maim tenance and 'support.

The defendant made no defense in the case, and admits liability to either plaintiff or intervener. They deposited in court the amount of compensation due at the time of the trial, together with court costs up to that time, and, in fact, confessed judgment, in the amount prayed for, expressing a willingness to make payment to either party to whom the court says compensation is due.

Plaintiff filed as to intervener an exception of prematurity and of no cause and right of action, based on the ground that intervener does not allege, demand and refusal of payment of compensation. The exceptions were overruled by the lower court, and properly so under the admission of defendant. If the exception had been sustained, it would not in any way affect the decision as to plaintiff. Plaintiff relies on the decision of this court in the case of Harris v. Louisiana Oil Refining Corporation, 13 La. App. 416, 127 So. 40, as being decisive of this case, and her contentions are correct, if we find the facts to be as alleged and claimed by plaintiff. However, if we. find the facts to be as contended by intervener, the decision in the Harris case will not be applicable. Therefore, in the last analysis, the decision in this case rests, solely on a question of fact.

The lower court found for intervener on a question of fact, and we cannot say the decision of the lower court is manifestly erroneous. To the contrary, a careful analysis of the testimony in the record brings us to the conclusion that the facts are with the intervener. The lower court saw and heard the witnesses testify, and therefore could better judge their credibility than we can. We can only look to the reasonableness of the testimony as disclosed in the record, and, when this test is applied, it is certain that the testimony of intervener and her witnesses is moré reasonable than that of plaintiff and her witnesses. There is much conflicting testimony in the case; however, the following facts are undisputed:

(1) That plaintiff and deceased were married on May 15, 1923, and lived together in the home of intervener until December 29, 1923, when plaintiff left deceased’s home and has never returned there to live with him, although he continued to live with his mother, intervener, until his death on May 21, 1929.

(2) That the employer, defendant herein, or its agents, did not know that deceased was married, and that deceased left instructions with his employer to deliver his salary to his ■ mother whenever she called for it, - and that his salary was paid to her on different occasions by his employer during the four years preceding his death.

(3) That his salary was $17 per week, and that he received his pay every Tuesday evening.

,(4) That defendant paid compensation to intervener up to the time of the filing of suit by plaintiff or until they learned that suit was to be filed.

(5) That intervener did not know of the marriage of plaintiff and, deceased until after the ceremony had been performed and deceased had brought her to intervener’s home to live.

(6) That the grandparents of plaintiff, with whom she was living at the time of her marriage forced the deceased to marry plaintiff.

Plaintiff contends that, after she left the home of intervener and deceased, she never again returned there for any purpose. She is, however, successfully contradicted in this statement, and it is proven that she went there at least once, if not several times, and that she attempted to get deceased to take her back and he refused. She contends that during the more than five years after she left intervener’s home that deceased maintained her at a rooming house, paid her rent, board, washing, bought her clothes, shoes, and fruit, gave her spending money and paid for several trips that she took during the time; that she did no work to earn a living for herself; that deceased paid these bills of hers every Saturday night after he had drawn his weekly pay; that he visited her frequently, and spent two to four nights a week with her. She is corroborated partially by the woman with whom she roomed, her son, and a girl who occasionally worked in ■ the restaurant for her landlady.

If deceased had furnished to plaintiff all she claims he did, then it is certain that he would have had left very little out of his wages to maintain himself with, pay room rent and board, and buy his wearing apparel. -But plaintiff is successfully contradicted by the intervener and her son, also the president and the bookkeeper of the concern by whom deceased was employed, as well as. by the woman with whom plaintiff roomed after the death of hér husband. Deceased was paid each week on Tuesday evening, sometimes his mother drawing the salary, most of the time he collecting it himself, and it is unusually strange that he should wait until late Saturday night to pay his wife’s bills. It is also unusual that he should have been living with plaintiff as his wife and she not know when his pay day was. She undoubtedly did not know, as she testified he was paid each Saturday night.

Deceased was intervener’s oldest son. He lived with her until his death. He was her principal means of support. He authorized her to draw his. wages, which she sometimes did, and, when he drew bis wages, he turned it over to his mother, who paid for him the bills he had made for clothes, etc., and gave to him for spending money $1.50 or $2 per week. The record shows that, after plaintiff left her husband, he, on several occasions, told others that she had left him for some one else, and that he would never take her back. He refused to take her bacK when she requested him to, that they had lived separate and apart for more than five years, and that plaintiff had told the woman she roomed with after her husband’s death that he had not contributed to her support since she left him, and that a man by the name of Max Sims had supported her. The circumstances and the evidence in -the record are corroborative of the testimony of intervener and opposed to the contentions of plaintiff that deceased supported her and lived with her as man and wife.

We are convinced that the deceased did nothing toward the support of plaintiff after she left him, and that he did not maintain relations of man and wife with ]j.er after that separation; that he was the main support of his mother; the principal part of his wages being used for that purpose. The lower court so found, and the judgment is correct.

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


author: McGREGOR, J.

text:
    No. 3661
    Second Circuit
    S. G. DREYFUS CO. v. WILLIAMS
    (May 20, 1931. Opinion and Decree.)
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellee.
    C. O. Brown, of Arcadia, attorney for defendant, appellant.
   McGREGOR, J.

This is a suit on open account. The answer of the defendant is simply a general denial • of the indebtedness without any special defense of any kind. In fact, the defense appears to be purely perfunctory. The case was set for trial on different occasions and for one reason or another was continued. Finally it was .definitely agreed by counsel on both sides that it be tried during the week in which it was actually tried. The exact date was inadvertently left off the minutes. Becausé of the uncertainty of the day on which it had been -agreed that it should be tried, on June 25, 1929, the plaintiff had the case set for trial for the following day, June 26, 1929. Counsel for defendant was not present in court on June 25, so when it was called for trial on June 26 he was taken by surprise and asked orally for another continuance, which was refused. The trial of the case was then proceeded with in the absence of the defendant, and judgment in favor qf the plaintiff was rendered, read and signed. The defendant has appealed and the plaintiff has answered the • appeal and asks for damages for frivolous appeal.

No motion for new trial was filed. If the defendant had a serious defense he should have set it up in his answer. Also, if this defense was genuine and he had filed a written motion for a new trial, the judge of the lower court would have granted it in order to give him an opportunity to present it. Counsel should have been present in court, particularly since it is conceded that the case was to be tried during that week and that the exact date had been overlooked by all the parties as well as by the court. Under these circumstances counsel should have been diligent to see that the date was determined on the first day of the court’s sitting that week. Under the circumstances the judgment appears correct and with the record in the shape that it is defendant could have no hope of reversing it. The appeal is therefore frivolous and' damages should be awarded.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is affirmed. It is further ordered that there be judgment in favor of the plaintiff against the 'defendant for 10 per cest of the amount of the judgment as damages for frivolous appeal, and that the defendant pay all the costs of both courts.


text:
    No. 3974
    Second Circuit
    BUTLER v. BOLINGER ET AL.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)

      Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    Wallace & Hardeman, of Benton, attorneys for defendant, appellee.
   DREW, J.

John L. Butler, plaintiff herein, and his wife, Rebecca Ford Butler, married many years ago in Bossier parish, La., and while living together as man and wife, acquired 40 acres of land located in Bossier parish, La., which .property is admitted to be community property. After the acquisition of this property, John L. Butler and his wife moved to the state of California, where they established their matrimonial domicile. John L. Butler instituted suit for divorce against his wife at their domicile in Los Angeles county, California, and on the 3d day of January, 1930, the following judgment was rendered therein:

“In the Superior Court of the State of California in and for the County of Los Angeles
“John L. Butler, Plaintiff, vs. Rebecca F. Butler, Defendant, No. D 72700 Dept. 46.
“Interlocutory Judgment of Divorce.
“This cause came on to be heard the 2d day of January, 1930, in Dept. 46, Charles De Le Fond appearing as attorney for plaintiff. The defendant, Rebecca A. Butler, was not present, but was represented by attorneys, John J. Craig and Harold R. Smith, and evidence having been introduced to Court now makes its findings of fact and decision as follows:
“The allegations contained in the first cause of the complaint are true and that a judgment dissolving the marriage between plaintiff and defendant ought to be granted.
“It is adjudged, that plaintiff is entitled to a divorce from defendant and when one year shall have expired after the entry of this interlocutory judgment, a final judgment dissolving the marriage between plaintiff and defendant be entered, and at that time the Court shall grant such other and further relief as may be necessary to a complete disposition of this action.
“It is further ordered that the custody and control of the two minor children of the parties shall be awarded to plaintiff.
“It is further ordered that the community property of the parties hereto consisting of the following described property, to-wit:
“(a) An equity of approximately $1,000.00 (One Thousand Dollars) in Lot 240 of Mettler Tract, recorded in Book 6, page 50 of Maps, Records of Los Angeles County.
“(b) An equity of $500.00 (Five Hundred) Dollars in Lots 11 and 12, Block 47 of the Pasadena Villa Tract, as per map recorded in Book 3, pages 5 to 8 of Maps.
“(c) Household furniture of the probable value of $700.00 (Seven Hundred) Dollars.
“It is awarded and decreed to the plaintiff.
“Done in open Court this 3d day of January, 1930.
“Douglas L. Edmonds, Judge.
Notice—Caution.
“This is not a judgment of divorce. The parties are still husband and wife, and will be such until a final judgment of divorce is entered after one year from the entry of this interlocutory judgment. The ■final judgment will not be entered unless requested by one of the parties.
“Filed Jan. 3, 1930.
“Typed by E. M. Spencer.
“Entered Jan. 4, 1930.
“L. B. Hamilton, County Clerk,
“By H. Christenson, Deputy.”

After the granting of this decree, the wife, Rebecca Butler, came back to Bossier parish, La., and sold an undivided one-half interest in the above-mentioned forty acres of land to M. R. Bolinger, defendant in this suit, and to the deed there was attached a certified copy of the decree above recited, and both the deed and de: cree were recorded in the conveyance records of Bossier parish, La. Thereafter M. L. Bolinger filed suit against John L. Butler, praying for a partition of this property by licitation, and, after making substituted service on Butler, there being no defense made by the curator 'ad hoc appointed to represent him, judgment was rendered against Butler by default, ordering that the 40 acres of land be sold at public auction for the purpose of partition.

The property was advertised for sale when Butler learned of the matter, and he promptly filed suit to enjoin the sale of the property and to have the judgment in the partition suit set aside as null and void, and asked that the sale by his wife to Bolinger be canceled and erased from the records for the following reasons:

(1) That this land was community property, and, there never having been any dissolution of the community, his wife Rebecca Ford Butler, could not validly dispose of any interest in said land;

(2) That as Rebecca Ford Butler, wife of plaintiff, had not a right to dispose of this property, Bolinger acquired no title therein under his deed from Rebecca Butler, and therefore, having acquired no title, Bolinger had no right to a partition suit or a judgment decreeing that the property be sold to partition it; and

(3) That the district court of Bossier parish had no jurisdiction of Butler, the plaintiff, and no seizure was ever made of the lands which could give the court jurisdiction.

Defendant Bolinger, in answer, admitted that the 40 acres of land was community property between John L. Butler and his wife, Rebecca Ford Butler, and further that Butler and his wife had moved to California many years ago, where John L. Butler lives at present, and where he has lived for many years past. Defendant set up as a defense to this suit that the community which formerly existed between Butler and his said wife was dissolved at the time of the sale from Rebecca Butler to Bolinger by virtue of the decree of the California court heretofore recited, and therefore the sale by the wife to Bolinger was good.

This is the sole defense made by the defendant, and the case must stand pr fall on this issue. The case was tried in the lower court, a preliminary writ of injunction was. granted, and, on the merits, judgment was rendered recalling the preliminary writ of injunction, rejecting the demands of plaintiff and ordering, the sheriff of Bossier parish, La., to proceed with the sale of the property under the judgment in the partition suit. From this judgment plaintiff has appealed

Under the laws of California, the courts of that state have construed similar decrees very much as we do a separation a mensa et thoro. If, during the year after the decree is entered, the husband and wife become reconciled by cohabitation or otherwise, the California courts refuse to grant a final decree. Olson v. Sup. Ct., 175 Cal. 250, 165 P. 706, 1 A. L. R. 1589; O'Connell v. Sup. Ct., 74 Cal. Aipp. 350, 240 P. 294.

The decree rendered in this case does not even purport to dissolve the marriage but contemplates .and provides for a final judgment to accomplish that result after the lapse of one year. One of the important purposes of the law postponing an absolute severance of the marriage bond, according to the case of Olson v. Sup. Ct., supra, is to give the spouses an opportunity to become reconciled; reconciliation being always favored by the law. See, also, Barron v. Barron, 7 Cal. Unrep. 345, 96 P. 273; Grannis v. Sup. Ct., 146 Cal. 245, 79 P. 891, 106 Am. St. Rep. 23.

The Supreme Court of this state,' in Mack v. Handy, 39 La. Ann. 491, 2 So. 181, said the evident object of the separation of husband and wife from bed and board was to afford the offending party ample time and opportunity for reformation, and the party complaining to understand the situation and determine the propriety of making a reconciliation. The purpose of the law in Louisiana in rendering judgments of separation from bed and board and the law in California in rendering the decree as rendered between plaintiff, Butler, and his wife, is seen to be the same. The California decree did not dissolve. the bonds of matrimony between Butler and his wife; neither does a judgment of separation 'from bed and board in Louisiana dissolve the bonds of matrimony. It seems certain, though, that the decree rendered by the California court was full authority for Butler and his wife to live separate and apart, as a judgment in Louisiana for separation from bed and board would be. If they did not live separate and apart, they could not secure a final divorce. Reconciliation would do' away with the decree of the California court. However, there is this difference: A judgment of separation a mensa et thoro in Louisiana dissolves the community of acquets and gains, and in California a decree as rendered in the Butler case does not necessarily dissolve the community. Brown v. Brown, 170 Cal. 1, 147 P. 1168; Est. of Dargie, 162 Cal. 51, 121 P. 320; De Godey v. Godey, 39 Cal. 162.

However, the community can he dissolved in California by consent of the husband and wife. Gould v. Sup. Ct., 47 Cal. App. 197, 191 P. 56, 57. In that case, the court said:

“The interlocutory decree constituted a contract between the parties, both because the provisions for division of the community property were hy consent and because ‘a judgment is a contract, in the highest sense of the term. Wallace v. Eldredge, 27 Cal. 498; Stuart v. Lander, 16 Cal. 372, 76 Am. Dec. 538; Bean v. Loryea, 81 Cal. 151, 22 P. 513; Dore v. Thornburgh, 90 Cal. 64, 27 P. 30, 25 Am. St. Rep. 100; Weaver v. San Francisco, 146 Cal. 728, 81 P. 119. The interlocutory decree, so far as it determined the rights of the parties, is a contract between them, temporary and provisional in its nature; but it settled the rights of the parties for the time being, ‘and until some action, proceeding, or motion is begun to change the status, and some order is made thereon which has that effect, or until they become reconciled and resume marital relations, in which event their mutual obligations are, for the time being, at least, restored.’ London Guaranty & Accident Co. v. Ind. Accident Commission, supra (181 Cal. 460, 184 P. 864); Olson v. Superior Court, 175 Cal. 250, 165 P. 706, 1 A. L. R. 1589.”

The decree entered in the Butler case and the bone of contention in this case is even stronger than a judgment of separation from bed and board in Louisiana. After such a decree is rendered in California, Under the provisions of section 132 .of the California Civil Code, the marital status is not affected further than that it establishes conclusively the right to divorce upon the expiration of the statutory period of one year, unless the decree is set aside on appeal or in some other manner expressly provided by statute. In re Seiler’s Est., 164 Cal. 181, 128 Pa. 334; Ann. Cas. 1914B, 1093; Gould v. Sup. Ct. 47 Cal. App. 197, 191 P. 56; Pereira v. Pereira, 156 Cal. 1, 103 P. 488, 23 L. R. A. (N. S.) 880, 134 Am. St. Rep. 107; Est. of Walker, 169 Cal. 400, 146 P. 868; London Guar. & Accident Co. v. Ind. Accident Com., 181 Cal. 460, 184 P. 864, or by reconciliation, which must be alleged and proved. In Louisiana, one year after separation from bed and board, it is incumbent upon the plaintiff to allege and prove that there has been no reconciliation; the same right to defendant after the lapse of two years.

Such a decree as rendered in the ease of Butler and his wife in California is in effect the same as a separation from bed and board in Louisiana.

In Garnett v. Garnett, 114 Mass. 379, 19 Am. Rep. 369, the court, in construing a divorce nisi, which is similar to the decree rendered in California, said:

“A divorce nisi under the St. of 1870, c. 404, is substantially equivalent to a divorce from bed and board and does not dissolve the marriage”—citing Edgerly v. Edgerly, 112 Mass. 53; Graves v. Graves, 108 Mass. 314.

It would not ordinai'ily dissolve the community in California, and the question for our determination is, did it dissolve the community in so far as immovable property that is located in Louisiana?

' Under the full faith and credit clause of the Constitution of the United States (Const. U. S. art. 4, sec. 1), judgments of other states must be given the same effect as are given them in the state where rendered, but only so far as the personal status of the parties is concerned. The decree of California authorized the living apart of John L. Butler and his wife, and we must give the judgment that effect,, and it would be a bar to an action for separation from bed and board in this state, but the effect it has on immovable community property located in Louisiana will have to be governed by the laws of Louisiana. The California court had no jurisdiction over the Louisiana immovables. To hold otherwise would be to hold that it was an action in rem without jurisdiction over the res. Fall v. Eastin, 215 U. S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853.

Real estate is governed by the law of its situs, and a decree of another state does not operate directly upon the property nor affect the title. Canpenter v. Strange, 141 U. S. 87, 11 S. Ct. 960, 35 L. Ed. 640; Hart v. Sansom, 110 U. S. 151, 3 S. Ct. 596, 28 L. Ed. 101; Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181.

The validity of a judgment of another state where it operates on property within that state will not be inquired into by the courts of this state, but its extraterritorial effect on rights to immovables in this state will not -be tolerated. The effect of the California decree was to legally authorize Butler and his wife to live separate and apart, and such a decree in this state is to dissolve the community. After ■ the dissolution, husband and wife are tenants in common or joint owners of the property located in Louisiana, and the wife has the legal right to sell her undivided one-half of the property, as was done in this case.

The decree in question awards all the community property located in California to the plaintiff, Butler (a right the court of California had), and, although the decisions of the California courts are to the effect that the proper time to make this award is on ■ final judgment for divorce, still, under some circumstances heretofore enumerated, the court has that power at the time of rendering the first decree. The record and pleadings in the case in which the decree was rendered are not before us, and we are without right to question the correctness of the decree. Butler and his wife were both before the court, and may have asked for the division of the community to be made, a right they apparently have under the laws of California. Be that as it may, the decree is in evidence, and on its face shows that the community was dissolved by the decree of the court, and a judgment is a contract in the highest sense of the term.

To give full effect to the decree itseli, as we are required to do, we would have to hold that the community has been dissolved without regard to the laws of our state, which dissolves the community whenever the husband and wife are authorized by the court to live separate and apart. To decide this question is to decide the case. The deed from Rebecca Ford Butler to M. R. Bolinger of her one-half interest in and to the S. W. of N. E. % of section 18, township 22, range 13 west, Bossier parish, La., was a legal and valid transfer of her one-half interest therein; but the partition proceedings between M. R. Bolinger and John L. Butler were in accordance with the law.

The judgment of the lower court is correct; it is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs.


text:
    No. 3573
    Second Circuit
    COLEMAN v. CURRIE, SHERIFF, ET AL.
    (May 20, 1931. Opinion and Decree.)
    Goff & Goff, of Arcadia, attorneys for plaintiff, appellant.
    ' J. Rush Wimberly, of Arcadia, attorney for defendants, appellees.
   McGREGOR, J.

j. O. Caskey obtained judgment against W. L. Coleman, one of the defendants in suit entitled “J. 0\ Caskey vs. E. H. Crawley et als, No. 6987, Second Judicial District Court, Bienville Parish, Louisiana.” The plaintiff caused execution to issue and seized one hundred forty-five acres of land belonging to the defendant in execution, W. Lee Coleman, and had caused same to be advertised for sale on Saturday, January 12, 1929, as shown by the allegations of plaintiff’s petition and a copy, of the advertisement attached to the petition.

The plaintiff, W. Lee Coleman, defendant in the execution, after demanding the release of his property as his homestead, filed this suit, alleging that he was the owner of the property; that same was advertised for sale; that the property, was exempt from seizure and sale as his homestead. He alleges that said property is occupied by him and his family as a homestead; that he is the head of a family, having a wife and children dependent upon him for support and that they own no property in their own right. He obtained & temporary restraining order, upon giving bond in the amount fixed by the court and a rule nisi issued directing the defendants to show cause on Thursday, January Í7, 1929, at 10 o’clock a. m., why a preliminary writ of injunction should not issue as prayed for.

On January 17, 1929, the day fixed for the hearing of the rule, the defendant had' made no appearance and nothing was done in the case. The restraining order formerly obtained was not extended and it, therefore, automatically lapsed and exJ pired under the law as stated in section 2 of Act No. 29 of 1924.

“* * * the Court may, in its discretion, issue a temporary restraining order against the defendant, upon the applicant furnishing bond (unless bond be not required by existing applicable laws) in such amount as the court may fix, with surety or sureties, and conditioned as provided by existing' applicable laws in respect of bonds in case of writs of injunction. Every such temporary restraining order shall be endorsed with the date and hour of issuance; shall forthwith be filed in the clerk’s office and entered of record; shall be effective against the party restrained, officers, agents, employees and attorneys only from time of service or of actual knowledge of the issuance thereof; shall state why the order was granted without notice; shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained; and shall by its terms expire within such time after entry, not to exceed ten days, as the court may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extensions shall "be entered of record.” (Boldface type ours.)

On February 1, 1929, fifteen days after the date set for the trial of the rule and the expiration of the restraining order, the attorney for the defendant in rule “without in any way answering,” filed a motion “to dissolve the writ of injunction herein sued out and the restraining order.” (Boldface type ours.) In this so-called motion to dissolve there was a reconventional demand for damages for the wrongful issuance of the restraining order. On February 26, 1929, the case was set for trial on March 5, 1929. On this day, that is March 5, the plaintiff did not appear. He was absent in a distant parish and his attorney, though he had endeavored to notify him by mail, did not know whether he had received notice of the setting or not. Consequently he, the attorney for the plaintiff, filed a motion to continue the case to give him an opportunity to get in touch with his client. This motion was overruled and plaintiff’s attorney then offered to enter a nonsuit, but counsel for defendant objected on the ground that he had a right to prove his reconventional demand, which was contained in his so-called motion to dissolve the restraining order and the writ of injunction. The nonsuit was entered, but the court permitted the defendant to prove her reconventional demand and judgment was rendered in her favor. It is from this judgment that the plaintiff is prosecuting this appeal.

It is' elementary that. no damages can be awarded on account of the wrongful issuance of any conservatory writ unless the writ is dissolved on a motion tried separately from the merits. It is a question as to whether a temporary restraining order can be characterized as a conservatory writ, the dissolution of which by motion would entitle the defendant to damages. But be that as it may, it is certainly true that if damages can be awarded for the dissolution of the temporary restraining order, this dissolution must take place while the restraining order is in effect. Under the express terms of Act No. 29 of 1924, in section 2, there is the following provision:

“Upon two days’ notice to the party obtaining such temporary restraining order, the opposite party, or any other party in interest, may, at any time, appear and move for the dissolution or the modification of such order, and in that event the court shall proceed to hear and determine the motion- as expeditiously as the ends of justice may require.”

When, on February 26, 1929, the case was set for trial, it was the rule to show cause why a preliminary injunction should not issue, and not the motion to dissolve filed by defendant on February 1, 1929. That so-called motion to dissolve was meaningless for the reason that at the time that it was filed the temporary restraining order which it sought to dissolve had already expired fifteen days prior thereto and the writ of injunction which it sought to dissolve had never- in fact been issued. It prayed for the dissolution, first, of something that had expired and, second, of something that had not come .into existence. Therefore, there was nothing to dissolve. Since there was nothing to dissolve, the defendant, of course, could not ask for or receive any damages in a motion to dissolve. On March 5, 1929, the only thing before the court was the question as to whether the preliminary injunction should issue. The defendant had not answered. The motion to dissolve, which specially disclaimed being an answer in any manner, filed by her on February 1, 1929, had no force. The only action that the court could legally take on March 5, 1929, was either to grant a preliminary injunction by default to the plaintiff against the defendant because of her failure to file an answer to the rule or to grant the application to enter a nonsuit No judgment for damages should have been allowed on the trial of a motion filed to dissolve something which by its own terms and the law had lapsed nearly two months before.

For the reasons assigned the judgment appealed from is hereby annulled and reversed, and the demand of the defendant for damages on account of the restraining order is rejected; the cost of the appeal to be paid by the defendant and appellee.


text:
    No. 3004
    Second Circuit (Second Division)
    WATSON v. BRES
    (April 9, 1931. Opinion and Decree.)

      (No Syllabus)

    B. H. Lichenstein, of Shreveport, attorney for plaintiff, appellant.
    Hunter & Morgan, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

Plaintiff appealed from a judgment of the lower court rejecting his demands against defendant in a suit on a promissory note. Neither appellant nor appellee have made any appearance in this court, and we assume the appeal has been abandoned. However, we have carefully read the record in the case, and it discloses no error in the judgment of the lower court.

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


author: STEPHENS, J.

text:
    No. 2960
    Second Circuit
    YOUNG, SR., v. WILLIAMSON
    (April 9, 1931. Opinion and Decree.)
    (May 7, 1931. Rehearing Refused.)
    Gunter & McClung, of Natchitoches, attorneys for plaintiff, appellee.
    E. S. Prudhomme, of Natchitoches, attorney for defendant, appellant.
   STEPHENS, J.

This is a suit for the sum of $199.49 alleged to be due plaintiff by defendant as a result of their hay farming operations for the year 1925.

The plaintiff alleges that he and defendant entered into a verbal agreement to share equally profits and losses in making ■ a hay crop during the year 1925 on a plantation leased by them jointly from the Bank of Winnfield. The plaintiff was to advance the money for supplies, labor, etc., and the' defendant was to superintend the farming and store the product of their joint enterprise.

The plaintiff alleges, and submits an itemized attested account in support thereof, that in accordance with his agreement he expended for rent, labor, and other necessities incident to the farming operations, the sum of $248.58, and, in addition to the obligation imposed upon him by the agreement, he advanced cash to the defendant individually to the extent of $75.20. The latter sum, plus one-half of the sum of $248.58, is the amount herein demanded by plaintiff.

Defendant answered alleging that the plaintiff was indebted to him in the sum of $199.75, which said amount, it is averred, more than compensated and set off the claim of plaintiff.

The district judge rendered judgment in favor of plaintiff for the amount sued for, and rejected the claim of defendant, and, .from this judgment, the defendant prosecutes this, appeal.

The plea of compensation and set-off admits the correctness of plaintiff’s ac'count, but- the legal effect of said plea need not be relied on, as the defendant in his testimony on the trial of the case made the •same admission. We are therefore only concerned with the. defendant’^ claim in compensation and set-off. It is itemized in defendant’s answer as follows:

8yz tons of hay at $17.50 per ton—$148.75
Paid labor for cutting, hauling and delivering hay ...................................... 25.00
Due defendant for account of one tenant moved by plaintiff________________ 26.00
$199.75

The first item of defendant’s claim is for hay alleged to have been delivered to plaintiff in excess of the amount to which plaintiff was entitled. The evidence shows that the partnership venture produced 895 bales of hay, and that the plaintiff received only 392 bales. There is no evidence of sufficient probative value to serve as a basis for judgment.that plaintiff received more than 392 bales. It is shown that the hay was stored by defendant, and that plaintiff and defendant both had access to. it; but we cannot conclude from that fact, in the absence of other evidence, that the .plaintiff received more hay than the amount he stated that he received and sold. It is a significant fact to note in this connection that the defendant, though often urged to pay plaintiff’s account, never intimated before suit was filed that the plaintiff had received hay in quantities greatly in excess, of half the crop.

It developed on the trial of the case that the item of $25 was for labor performed by the defendant. From the evidence in the case, we are not convinced that it was contemplated by the parties that their individual effort would be compensated other than by the profits, if any, derived, from' the farming operations. We think the claim is an afterthought of the defendant. It was never mentioned until after the suit was filed.

»As to the third item for $26, the testimony of the plaintiff is that he owed one John Parker the said amount, which was partly offset by the sum of $23 which John Parker owed him. He further stated that defendant was not known in the transaction. Parker, defendant’s witness, and by whose testimony defendant is bound, fully corroborates the plaintiff.

- The plea of compensation and set-off is not sustained by the evidence.

We are of the opinion that the case has been correctly disposed of by the district court, and the judgment of that court is affirmed.


text:
    No. 3963
    Second Circuit
    THE FIRST NATL. BANK IN GIBSLAND v. KNIGHTON BROS. ET AL.
    (May 20, 1931. Opinion and Decree.)

      Goff & Goff, Of Arcadia, attorneys for plaintiff, appellant.
    R. L. Williams, of Arcadia, attorney for defendants, appellees.
   DREW, J.

Plaintiff sued Knighton Bros., a commercial partnership, alleged to be doing business in Gibsland, Bienville parish, La., and C. R. Knighton and J. G. Knighton, as individual members of said partnership, for $1,000 which is represented by a promissory note signed by Knight-on Bros. It prayed for service and citation upon the partnership and the individual members, and for judgment in solido against all three defendants.

Defendants filed an exception of misjoinder and no right or cause of action, which exception was sustained and plaintiff’s suit dismissed.- Plaintiff appealed to this court from the judgment of the lower court.

The only, appearance made in this court by defendants was to file the following plea:

“Now comes Knighton Bros., J. G. Knighton and C. R. Knighton, all defendants and appellees in the above entitled and numbered cause, and with respect show the Court:
“1. That since the filing of the appeal herein, your defendants have been adjudged bankrupts in the Bankrupt Court of the United States for the Western District of Louisiana.
“2. That all the property owned by them has been sold by the trustee in Bankruptcy.
“3. That your appearers have filed petition in the said Bankrupt Court praying to be discharged from bankruptcy.
“4. That your appearers do not and cannot file any brief or cause any argument herein.
“Wherefore, they pray to be discharged from the effect of any appeal herein. Pray for cost, all orders and decrees necessary and for general relief.”

There is nothing attached to the plea to justify this court in acting on it, a mere statement by defendants. Under said plea, we might be justified in remanding the case for evidence to be introduced' thereon, had the merits of the case been passed on below; but, since the suit was dismissed on an exception of misjoinder and no cause or right of action, which judgment We think erroneous, We will dispose of the exception and remand the casé to be tried on the merits, at which time the plea may arise.

We are informed by appellant in argument and in brief that the exception is based upon the ground that, during the existence of the partnership (commercial), suit cannot be maintained against the individual members of that partnership on a firm obligation, and that a suit against the partnership and the individual members thereof, in which judgment is sought in solido without alleging the partnership has been dissolved, is subject to the exception of misjoinder and no right or cause of action.

The cases relied upon below by appellees are E. B. Hayes Machinery Co. v. Eastham et al., 147 La. 347, 84 So. 898, and American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307. These two decisions, we think, are sufficient authority other than the Revised Civil Code for overruling the exception. In the E. B. Hayes Machinery Company case, the syllabus correctly sets forth its holding:

“Under the civil law, a partnership is a legal entity, separate and distinct from the persons who compose it, and may have its own creditors and debtors to the same extent as the individual partners, and, so long as the firm is not dissolved, it alone can sue on the firm’s claims, and, though all its members join, such a suit cannot be maintained in the absence of the firm as a party plaintiff, and though, under Rev. Civ. Code, art. 2872, commercial partners are bound in solido for firm debts, a liability does not become enforceable against the individual partners until the firm has been dissolved, and, so long as it continues, they must be sued through and with it.
"Under Code of Practice, art. 185, par. 2. if an alleged partnership was domiciled in a particular parish, or if it had a business there, though domiciled elsewhere, it and its members might have been sued jointly in such parish, or, if it was established in more than one, might have been sued in the parish where the obligation was entered into.”

And in the body of the opinion the court said:

“It is true article 2872, R. C. C., provides: ‘Commercial partners are bound in solido for the debts of the partnership-.’
“However, that liability does not become enforceable against the individuals who comnose the partnership, separate and apart from the firm, until it has been dissolved. So long as it continues, they must be sued through and with' it. Key v. Box, 14 La. Ann. 497.”

And in paragraph 4 of said opinion the court said:

“If the alleged partnership Was domiciled in Caddo parish, or if it had had a business there, though domiciled elsewhere, it and the present defendants might have been sued jointly there. But it [the partnership] is not only not made a party defendant, and not shown to have had any business in that parish, but is affirmatively alleged to be ‘doing business’ in the State of Texas.”

In this case the court held that you could hot sue individual members of a going concern (partnership) without making the partnership a party to the e.uit.

In the American Photo Player Company case, the court held that you could not sue the individual members of a partnership that had not been dissolved without making the partnership a party to the suit. Article 2872, Rev. Civ. Code, provides that “commercial partners are bound in solido for the debts of the partnership,” and a commercial partnership and its individual members may be sued in solido in one and the same action.

The judgment of the lower court sustaining the exception is erroneous, and it is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the case is remanded to the lower court for trial on the merits.


text:
    No. 4009
    Second Circuit
    CRUZE v. HARVEY & JONES
    (May 20, 1931. Opinion and Decree.)

      J. R. _ Dawkins, of Fa,rmerville, attorney for plaintiff, appellee.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   McGREGOR, J.

This is a suit for $150, the alleged vaue of a mule belonging to the plaintiff. J. M. Cruze, the plaintiff, owned a farm on the highway running from Farmerville to Bernice, La., in Union parish. The defendant, a partnership, had the contract under the Louisiana highway commission to construct a certain portion of this road through the farm of the plaintiff, who had executed the necessary deed for the right of way through his farm. This new portion of road passed through the fenced pasture of plaintiff, in which, among other animals, he kept three mules. When the defendant was ready ■ to' begin work on the construction of this part of the road, it was necessary to cut this pasture fence in different places so- as to provide openings to go in and out of the premises with trucks' and other road machinery. Theretofore it had been customary under such circumstances to build a kind of “lane” along the right of way to prevent stock from escaping, but it does not appear that the contractor in this, instance pursued this course. One of the defendant contractors testified that the building of this “lane” fence on both sides of the new road was let to the plaintiff and thet the delay in building it was due to his fault. This contention seems to be fairly 'well established by the testimony. But even, though the delay in the building of the new fence along each side of the road may have been due to the fault of the plaintiff, he claims, that until this fence was finished it was the duty of the defendant to keep closed the gaps made by it in the fence so as to prevent stock from getting out and running at large. Very soon after the fence had been cut, three mules of the plaintiff escaped out of the pasture and the'gaps were closed soon thereafter. As • soon as the mules got out, they went to the home of plaintiff’s son near by. This son and his wife and one of his sons endeavored to catch the mules and succeeded in getting one of them into the lot. The other two ran off and, as it was late in the evening, no further effort was made to capture them and to bring them back home until the next day. The plaintiff and one or two young men continued to look for the mules for three days. One of them was found alive and the other was found dead in an old abandoned, unprotected well. Subsequently the plaintiff brought this suit against the defendant, claiming that it, through its. agents and employees, negligently cut and left open gaps in the fence through which the said mule escaped, and that this act of negligence was the proximate cause of the death-of the said mule.

Before answering, the defendant filed a plea to the jurisdiction ratione personae, which was overruled. Next an exception of no cause or right of action was filed, and this also was overruled. An answer was then filed, in which the defendant denied all negligence and alleged that it was necessary to cut plaintiff’s fence and to leave the gaps open in order to carry on the work of building the road. It is further alleged that the plaintiff could and should have confined the mules in another inclosure that was on his farm, and that if the court should hold it was negligent to cut and leave open the gaps as it did, it was contributory negligence on the part of the plaintiff not to take the necessary precautions to keep his stock from escaping through the said gaps. On the issues as joined the case was tried, and judgment was • rendered in favor of the plaintiff against. the (defendant partnership for $137.50, the amount plaintiff gave for the mule when he first bought, it. The exceptions filed by defendant were properly overruled.

:. There are two questions to be 'determined in deciding this case, viz.: (1) Were the defendant’s, agents and employees guilty of negligence because of the mule in question escaping from plaintiff’s pasture? And (2) if so, was this negligence the proximate cause of the death of the mule?

It is admitted that the defendant’s agents and' employees cut the gaps in the fence and that the mule escaped through one of them. Care should have been taken to prevent this, and if it was impossible to close these gaps each time any one passed through, then it was the duty. of the defendant to post guards and to keep stock from entering or leaving the pasture. The fact that the mule escaped is proof of the negligence of the defendant in this respect. It is true that the plaintiff should have taken steps to protect his stock if he saw the danger they were being exposed to on account of this negligence, and his failure to do so under circumstances similar to these would ' be contributory negligence. But in this case it is not shown by the evidence that plaintiff knew of the actual cutting of the fence before the mule had escaped. Therefore, we hold that the ■ mule escaped from the pasture because of the negligence of the agents and employees of the defendant without any contributory negligence on che part of the plaintiff.

'It remains, therefore, to determine whether the negligence of the agents and employees of the defendant, was the proximate cause of the death of the mule. “Proximate cause” has been defined as:

“That which immediately precedes and produces the effect, as distinguished from a remote, mediate, or prédisposing causé; that from which the • fact might be ex pected to follow without the concurrence of-any .unusual 'circumstance; that without which the accident would not have happened, and from which the injury or a like injury might reasonably have been anticipated; the efficient cause—the one that necessarily sets the other causes in operation; that which stands next in causation to the effect—not necessarily in time or space, but in causal, relation; the nearest independent cause which is adequate to produce and does bring about an accident; a continuous succession of events without an intermediate cause, so linked that they become a natural whole, unbroken by any new cause or undisturbed by any independent cause; and that which sets in motion the dominating agency that necessarily proceeds through other causes as mere instruments or vehicles in the natural line of causation to the result in controversy. ‘Proximate cause,’ it has been said, is one in which is. involved the idea of necessity, and one from which the effect must follow, while ‘remote cause,’ although necessary for the existence of the effget, is one the existence of which does not necessarily imply the existence of the effect, A comprehensive definition, and one which is, perhaps, most often stated, is that proximate cause is any cause which in natural and continuing sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.” 45 Corpus Juris, Negligence, sec. 477.

Applying this definition of “proximate cause” to the death of the mule in this case, it cannot be said that the cutting and leaving open of the gap through which the mule escaped immediately preceded and produced the death, nor can . it be said that it might have been reasonably anticipated that this, mule, after escaping through this gap, would fall into an abandoned, unprotected, open well two miles away, about which the defendant had no knowledge. The cutting of the gap and leaving it open was not the efficient cause, and there was no causal relation between the act of negligence and the injury. The most that can be said is that it was the “remote cause” of the injury, and, indeed, it was very remote.

“Although a defendant may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless such negligence was the proximate, rather than the remote, cause of the injury,” 45 Corpus Juris, Negligence, sec. 478.
“ ‘Proximate’ means, derivatively, ‘next’ or ‘nearest.’ In the law of negligence it means next in relation of cause and effect —the immediate efficient cause in direct chain of causation. ‘Proximate’ and ‘remote’ are the commonly used legal terms to distinguish between actionable and non-actionable negligence as the cause of injury.” Godfrey v. Vinson, 215 Ala. 166, 110 So. 13, 16.
“The nearest independent cause which is adequate to, and does, produce the result, is the proximate cause of the accident, and supersedes all remote causes.” Yeates v. Ill. Cent. Ry. Co., 241 Ill. 205, 89 N. E. 338.

The nearest independent cause which . produced the death of this mule was the open, unprotected well, and this supersedes all other remote causes, among which may have been the open gap through which the mule escaped.

“To constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act. It is the cause which, unbroken by any intervening independent agency, naturally produces a given result. In other words, the negligence must be such that by the usual course of events it would result in injury unless independent moral agencies intervene in the particular injury. The proximate consequences of a negligent act must be within the range of probability as viewed by ordinary men, and consequences which are only possible cannot be regarded as either probable or natural.” 45 Corpus Juris, Negligence, sec. 482.

The falling of this mule backwards into the well two miles away was not within the range of probability as viewed by ordinary men. It was most unexpected, very rare, and unusual.

There are hundreds of cases and authorities on the subject of “proximate cause,” and it would be useless to cite them; but one of the most applicable we have been able to find is the case of Drum v. Miller, 135 N. C. 204, 211, 47 S. E. 421, 423, 65 L.R.A. 890, 102 Am. St. Rep. 528. In the course of its opinion the court said:

“For the purpose, therefore, of civil .liability, in the law of torts, those consequences and those only, are deemed immediate and proximate or natural and probable, which a person of average competence and knowledge, being in the like case of a person whose conduct is in question, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This, is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was immediate or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.”

Could it be said that if plaintiff’s mule had wandered into the city of Monroe and been killed by congested traffic on De Siard street, the defendant would be liable for damages for its death? We think not. By the same process of reasoning we conclude that defendant cannot be held in damages for the death of the mule caused , by its falling in some unknown manner into an open, unprotected well two miles away.

For the reasons assigned the judgment appealed from is annulled and reversed, and the plaintiff’s demand is rejected;, the costs of both courts to be paid by the plaintiff.


author: WEBB, J.

text:
    No. 3821
    Second Circuit
    STEWART v. STEWART ET AL.
    (May 20, 1931. Opinion and Decree.)
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendant, appellant.
    P, E. Brown and C. O. Brown, of Arcadia, attorneys, for interveners, appellees.
   WEBB, J.

In this action plaintiff, J. D. Stewart, of Bienville parish, L'a., alleged that he and his brothers, Ephram Stewart, deceased, and King S. Stewart/ of Houston, | Tex., inherited from their father, W. W. Stewart, a certain, tract of land containing 150 acres and an undivided interest in another tract, containing 30 acres of land, all lying in the parish of Bienville; that he and his brothers have been recognized as the sole heirs of their father and placed in possession of said property; and that Ephram Stewart had sold his interest in the property to J. O. Stewart, of same parish and state.

Plaintiff further alleged that he had paid taxes assessed against the property amounting to several hundred dollars; and that he desired to obtain a partition of the property, which he alleged was not divisible in kind; and he prayed that an attorney at law be appointed to represent King S. Stewart, and for service of process, on said attorney at law and J. O. Stewart, and, after due proceedings had, for judgment against defendants ordering the sai.d property partitioned by licitation and for judgment ordering the amount of taxes paid by him deducted from the proceeds of the sale, and the balance, after payment of costs, to be distributed to the respective co-owners, etc.

Service of process was had and,' pending the cause being placed at issue, an intervention was filed by Dora Stewart and Mary Stewart Muldrew, sole heirs of Ephram Stewart, attacking the sale made by their father to J. O. Stewart on the ground that Ephram Stewart had signed the deed to the property in error, and on the further ground of lesion beyond moiety, and they prayed that the sale be avoided and set aside, and in event of the property being partitioned, that, their share be paid to them.

; J..-0. Stewart excepted to the intervention on the grounds that there was a nonjoinder • of 'parties and a misjoinder of causes of action, which was overruled; and he answered the action for partition and the intervention denying the allegations, of plaintiff and interveners, with the exception that he admitted that Ephram Stewart was an heir of W. W. Stewart, and that he had purchased the interest of Ephram Stewart, as alleged by plaintiff, and he also pleaded the prescription of three years against the' demand for taxes alleged to have been paid by plaintiff.

A default was entered against King S.' Stewart, and trial was had and the cause submitted. Prior to a decision being rendered, plaintiff, J. D. Stewart, died, and his heirs were substituted as parties plaintiff; and following, judgment was rendered in favor of the interveners, Dora Stewart and Mary Stewart Muldrew, avoiding and annulling the sale fro’m Ephram Stewart to J. O. Stewart; and ordering interveners to pay J. O. Stewart $50, the consideration of the sale, and J. O. Stewart to pay all costs of the intervention; and in favor of the plaintiffs, heirg of J. D. Stewart, and against King S. Stewart, Dora Stewart, and Mary Stewart Muldrew, ordering the property sold or partitioned by licitation and the proceeds of the sale, after payment of the taxes paid by J. D. Stewart' and all costs of suit, distributed equally between plaintiffs, heirs of J. D. Stewart, King S. Stewart, Dora Stewart, and Mary-Stewart Muldrew; from which judgment J. O. Stewart alone appeals.

In presenting the cause here, counsel representing the parties said that the only questions to be considered are, first, whether or not the judgment avoiding and annulling the sale from Ephram Stewart to J. O. Stewart was correct, and in event it should be held that the judgment was not. correct, .whether or not the amount awarded plaintiff for taxes paid should be deducted from-the proceeds of the sale; and counsel have devoted their discussion'solely to these questions.

The decree avoiding the sale was based on the demand that there was lesion beyond moiety, and the sole question involved is. purely a. question of fact relative to the value of the land at the time of the sale. From our review of the evidence, we find it conclusively established that the price paid for the property was less than one-half of its value at the time of the sale, and that there was lesion beyond moiety (article 1860 et seq., C. C.), and therefore the' judgment avoiding the sale was correct.

Under the statement of counsel above referred to, it is unnecessary to consider the question relative to the deduction of taxes paid by plaintiffs from the proceeds of the sale, as we understand it is conceded that the judgment is correct in that respect. The judgment appealed from is therefore affirmed at appellant’s cost.


text:
    No. 3625
    Second Circuit
    CASKEY v. CRAWLEY ET AL.
    (May 20, 1931. Opinion and Decree.)

      J. R. Wimberly, of Arcadia, attorney for plaintiff, appellant.
    Goff and & Goff, of Arcadia, attorneys for defendants, appellees.
   DREW, J.

Plaintiff sued on a promissory note for the sum of $1,409.13, with 8 per cent interest thereon from October 15, 1923, and 10 per cent as attorney’s fees. He attached the note to the petition and made it a part thereof. He sued E. H. Crawley and W. D. Goff, and specially reserved his rights against J. E. Currie. He alleged the note to be past due and unpaid and amicable demand.

The note attached to the petition is made payable to plaintiff, and is signed, as maker, by E. H. Crawley, and is indorsed, first, by J. E. Currie, then by W. D. Goff.

Defendant Goff excepted to the petition, for the reason that it disclosed no legal right or cause of action against him. in that it is not alleged in what capacity he is bound on the alleged obligation, and it is not alleged that J. E. Currie, one of the solidary obligors, is indebted unto plaintiff in any amount, which operates as a release, under the law, of the said- Currie, one of the solidary obligors, and a release of him operates as a release of all other obligors signing said note in the same capacity.

The exception was not passed on below, and defendant Goff neither appealed from the judgment of the lower court nor has he answered the appeal here of plaintiff. Therefore the exception is not before us for consideration.

Defendant Goff answered, denying that he was indebted unto plaintiff or that amicable demand had been made. He alleged that he signed the note as accommodation indorser, after J. E. Currie had signed, and that he would not have signed the note as indorser if J. E. Currie had not indorsed it before he did; that plaintiff has not sued the said Currie, one of the indorsers, nor alleged that he owes the debt, and that he (Goff) is released because of the tacit release of the other indorser, Currie.

He further alleged that service had not been made on the maker of said note, and, because of failure to make said service, that it is a tacit release of plaintiff’s rights, against the maker, thereby depriving defendant of rights which he would have should he finally be forced to nay the note, and that, because of the release of the principal, as defendant set out, and one of the indorsers, he (Goff) is also released under the law.

At this stage of the case plaintiff died, and his wife, who had qualified as^adminiStratrix of his succession, was substituted as plaintiff. Defendant Crawley filed an amended answer, and defendant Goff filed the following plea of estoppel:

‘‘Now into Court comes W. D. Goff, made defendant in the above styled cause, for the purpose of filing this plea of estoppel, and with respect shows:
“That he refused to sign the note sued on in this cause until after same was signed by J. E. Currie; that J. O. Caskey and E. H. Crawley secured the signature of J. E. Currie and that the said J. O. Caskey promised the said J. E. Currie that he would never have to pay said note, and obtained his- signature with the view of inducing your defendant to sign same, and his acts operate as a fraud upon this defendant and he and his succession are estopped from changing their position to the prejudice of this defendant, and after agreeing not to hold the endorser, J. B. Currie, or make him pay said note, your defendant, a subsequent endorser is also discharged and released from said obligation.
“Wherefore, defendant adopting the prayer of his original answer further prays that this plea of estoppel be sustained; that the exception of no cause of action heretofore filed be sustained, and that the demands of plaintiff be rejected as to him, and for all orders, and decrees necessary in the premises and for general relief.”

On these issues the case was tried, resulting in judgment for plaintiff against defendant Crawley, as prayed for, and rejecting the demands of plaintiff against defendant Goff. From this judgment plaintiff appealed. Defendant Crawley has not appealed; therefore the judgment as to him is not before us.

There is no merit in the contention of appellee that the principal or maker of the note was. not cited. The record shows citation on the principal, Crawley, and he appeared and answered the suit. The other contention of appellee that, because the indorser, Currie, was not sued, he is released, we think wholly untenable. The obligation of each indorser is to pay the note on proper notice if dishonored at maturity, with the option in the payee to sue whomsoever he sees fit for the full amount; but with the right to have it paid only once and with full protection to the indorsers as between themselves, according to the nature of their agreement, or as provided by law, Rev. Civ. Code, art. 2094; Farmers’ & Merchants’ Bank v. Davies, 144 La. 532, 80 So. 713; and, in the absence of restrictions, all prior indorsers are liable to the one who pays. The note contains the following stipulation:

“All signers of this note are principals, and each of us as well as. all endorsers hereon waive presentation of payment and notice of non-payment, protest, and diligence in bringing suit against any party hereto, and I, we, and each of us consent that the payee herein or owner or holder of this note may at any time extend the time of payment.”

There is, therefore, no question of failure of proper notice when dishonored at maturity, ‘and the question is not raised. The note was past due at the time of the filing of the suit, and the indorser Goff was obligated to pay it. He and the other indorsers were jointly and severally liable' for the payment of the note on the face of the note, subject, however, to what defenses they or either of them might have and advance.

Therefore the failure of plaintiff to sue Currie, the prior indorser, does not release’appellee, also an indorser. His rights against the prior indorser are fully protected by law. It is admitted by appellee that he signed the note as accommodation indorser, and that it has not been paid.

The plea of estoppel was not passed on by the lower court, and appellee has not answered the appeal; therefore the plea is not before us for consideration.

On trial of the case, appellee offered proof to- show that he was an accommodation indorser to both the maker and the payee, and that, at the time he indorsed the note, the. payee, plaintiff herein, told him that he would never require him to pay it, and that he was. going. to use the note at the bank, but would protect him against having to pay it against third persons.

• This line of testimony was objected to, for the reason that there is no allegation by defendant Goff in the answer on which to base the proof. The objection was overruled and the proof allowed.

Under the general denial of liability on the note and the affirmative allegation that he was' an accommodation indorser, we think the evidence was admissible. Byrne v. Hibernia Nat. Bank, 31 La. Ann. 81; Ducros v. Jacobs, 10 Rob. 453; Bonnabel v. Bouligny, 1 Rob. 292; Duplantier v. Newcomb, 2 La. Ann. 279.

The great preponderance of the testimony is that appellee indorsed the note at the request of the payee and maker, with the distinct understanding from the payee that he (the appellee) would never be called upon to pay it; that the appellee was an accommodation indorser for the payee; that the note was used by the payee at the bank; and, when it became due, that the payee paid the bank and again took possession of the note, later filing the present suit. An accommodation indorser, for the payee, while liable to any third person who acquires the note, is not liable to the payee who is the owner and holder of the note.

The judgment of the lower court is correct; and it is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.