author: PORTER, J. ODOM, J.

text:
    No. 2056.
    Second Circuit Appeal
    SIM S. DORKINS v. ALEXANDER MONTGOMERY.
    (May 28, 1924, Opinion and Decree)
    (June 30, 1925, Opinion and Decree on Rehearing.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 252.
    Parol evidence is not admissible to prove the salé of real estate but it is admissible to show an error or ambiguity in description of plaintiff’s deed and to show that plaintiff is claiming land which he does not own.

      ON A REHEARING.
    2. Louisiana Digest — Surveys and Surveyors — Par. 16, 17, 18.
    Where the evidence in a boundary suit shows that plaintiff and defendant are not adjacent land owners, the plaintiff cannot maintain his action to establish a boundary.
    (Civil Code, Art. 823 et seq. Editor’s note.) .
    - 3. Louisiana Digest — Landlord and Tenant —Par. 17.
    One need not pay rental for land and buildings which he owns.
    Appeal from Ninth Judicial District Court of Louisiana, Parish of East Carroll. Hon. F. X. Ransdell, Judge.
    There. was judgment “dismissing” the prayer of the plaintiff and condemning the defendant to pay the plaintiff $200.00 for the excess of land held by him, and decreeing that the boundary as fixed by the common vendor, C. C. Lewis, and surveyed by the surveyor, to be the proper and true boundary.
    Judgment affirmed.
    On a rehearing plaintiff’s demands were dismissed in full.
    C. S. Wyly, of Lake Providence, attorney for plaintiff, appellant.
    Jeff B. Snyder, of Tallulah, attorney for defendant, appellee.
   PORTER, J.

This is a suit to fix the boundaries between two contiguous tracts of land owned by the plaintiff and the defendant, and the petition contains the usual and necessary allegations in such suits, with the additional allegation that the defendant has trespassed on and used since plaintiff’s purchase of the land, at least six acres of plaintiff’s land and two cabins, the rental value of which is, altogether, $150.00 per year.

The prayer is for the appointment of a surveyor to fix the limits between the two tracts of land, and for judgment against the defendant for the rental value of the six acres of land and the cabins, as above stated.

The defendant answered and admitted a number of the allegations in plaintiff’s petition, as modified by paragraphs 7, 8, 9, 10 and 11 of the answer. He denied the allegation in the petition to the effect that no boundary had been fixed between the two tracts of land, and averred that, on the contrary, the said line separating the two tracts had been fixed, agreed upon, determined and marked as fully set forth in paragraphs to follow. He denied that he had encroached upon defendant’s land, or that he owed him anything for rent for land or cabins.

The paragraphs in the answer which present the issues upon which the case was tried and decided in the lower court are as follows:

7.
“Further answering, respondent says and avers that about the 18th day of January, 1915, respondent entered into negotiations with C. C. Lewis, then the owner of all the land now owned by respondent, as well as the land owned by plaintiff, to purchase from said Lewis a- tract of land of about forty acres, more or less; ' that in the company with said C. C. Lewis, the owner, and with F. D. Bull, a competent land surveyor, and the parish engineer of East Carroll parish, your respondent did visit the land now owned and occupied by respondent; that said Lewis pointed out to respondent and to said Surveyor Bull a certain telegraph post along the line of M. H. & L. R. R. Company, and said: ‘The south line of the forty acres I propose to sell you is about on an east and west line drawn through the center of this telegraph post; I know toy north boundary and have ascertained the boundary of the quarter section I propose to sell you by counting the telegraph posts and taking the distance' as shown by them from my north boundary; but it may be, and probably is, that this distance is not precisely accurate; there fore, it will be understood between us that while my deed to you will convey to you the northeast quarter of the northwest quarter of Section 71 T. 20, R. 13, yet this east and west line drawn through the center of this telegraph post shall be your southern boundary; it may run a few acres over, or a few acres under the forty acres for which you are to pay me, and whenever a survey is made, if there is an overplus, you are to pay me for it at the same rate per acre for which I am selling this to you, and if the survey shows less than forty acres north of this telegraph post line, then I will refund to you at the same price per acre for the decreased quantity.’
“Respondent shows that he accepted, agreed upon, determined, and fixed with said C. C. Lewis said southern boundary of said forty-acre tract as above set forth,
8.
“Respondent further shows that later on, to-wit, in the latter part of the month of October, 1917, in the meantime, some three years, he and his said vendor, C. C. Lewis, having scrupulously observed and lived up to the boundary fixed as above set forth), plaintiff herein, Sim S. Dorkins, applied to said Lewis to purchase sixty acres of land just below and adjoining respondent’s purchase; that said Lewis refused to sell to said plaintiff and plaintiff applied to respondent to induce and persuade said Lewis to sell to him; that respondent wrote to said Lewis, urging him to sell the land to plaintiff, and really made the trade between plaintiff and said Lewis; that at the time said trade was consummated, said Lewis informed said plaintiff of the determining and fixing of the limits of the respondent’s lower line and stated to him the agreement between respondent and said Lewis; that is to say, that if his survey showed more than forty acres in respondent’s tract, with the south line fixed as above set forth, respondent would pay for the excess, and if it showed less, the price for the diminished portion would be returned to respondent, and said Sim S. Dorkins, plaintiff herein, agreed with and assured said Lewis and respondent that he would accept, and he did accept, the fixing and determining of respondent’s south line based on said telegraph post, and promised and obligated himself that if a survey showed that the land described in the deed to said Lewis to respondent did not quite come down to said telegraph post, that he, said Dorkins, would, upon that fact being determined to convey to respondent the necessary land to perfect and carry out the agreement between respondent and said Lewis, as ratified by said plaintiff. Avers that said ratification and obligation was made a condition of the sale by Lewis to plaintiff.
9.
“Respondent avers and shows that he and plaintiff herein abided by and considered as fixed and determined said boundary between them until about July, 1918, when respondent caused Surveyor F. D. Bull to run the lines of his property, and when said Dorkins, from information received from him by said surveyor, discovered that the lines as run by said Bull ran so far north' of said telegraph post as to leave out of the northeast quarter of the northwest quarter of said Section 71, respondent’s house and another cabin, he, said plaintiff for the first time, attempted to violate said agreement fixing said boundary between them, and seeking to take an unfair advantage of respondent, instigated this suit.
10.
“Respondent further shows that one of the cabins claimed by plaintiff was a cabin situated on land south of the said telegraph post line and on land which is now owned and occupied by said plaintiff, and which said cabin was included in the sale and .delivered to respondent by said Lewis as. an inducement to make the purchase from said Lewis, and was by said Lewis’ directions moved by respondent’ from the land then owned by C.. C. Lewis to the. land sold by said Lewis to respondent.
11.
“Respondent further avers and shows that ’ when informed of plaintiff’s claims and threats, he has endeavored in every possible manner to have plaintiff carry out his agreement that he and respondent and said Lewis had made at the time of said plaintiff’s purchase from said. Lewis; that he offered to pay said plain'tiff $50.00 per acre, his purchase price from said Lewis, for said excess six acres, which offer said plaintiff refused; that another purchaser Irom Lewis named Cooper, who owned land just south of and adjacent to and contiguous to Dorkins’ tract, acting for and in behalf of respondent, has offered to deed to said plaintiff six acres of his land just south of and adjoining said Dorkins’ land, and of equal value thereto, but that said Dorkins has rejected said offer also, and is, in violation of the fixing and determining of boundaries between said Lewis, said plaintiff and himself, endeavoring, because of the situation of the houses on said land, to vex, harass and annoy respondent in the hope that he can compel respondent to pay him a large sum of money under fear of losing his home and his improvements.
12.
“Respondent avers and shows that, acting upon said agreement fixing said boundary, and the acquiescence of all parties thereto, he has been in open, notorious undisturbed and peaceful possession of the land claimed "herein by plaintiff, for more than three years prior to the institution of this suit; that the houses on said land claimed by plaintiff constitute his residence and his home, and that he has worked and cultivated the land (six acres) claimed by plaintiff herein, without let or hindrance or adverse claim from anyone for said period of time, plaintiff residing on his own land, close neighbor to respondent, and never asserting any claim to said six acres until the institution of this suit.
“Defendant prays that plaintiff’s demand be rejected in toto; that no survey be ordered by the court to fix said limits, because they have been fixed, and boundary lines established in January, 1915, by defendant and said Lewis, his vendor, and said establishment and fixing of boundary was ratified, confirmed and agreed to in all its details by plaintiff in October, 1917; further prays for judgment recognizing said boundary lines as fixed and established as above set forth to be the true boundary between respondent and plaintiff, and that plaintiff be compelled to receive from respondent the sum of $50.00 per acre for the six acres embraced between the south line of the northeast quarter of the northwest quarter of Sec. 71, T. 20, N. R. 13 E„ and the east and west line drawn through said telegraph post, all as shown on the plat and survey of said land as made by P. D. Bull, surveyor, which is attached and made part of plaintiff’s answer.”

There was judgment “dismissing” the prayer of the plaintiff and condemning the defendant to pay the plaintiff $200.00 for the excess of land held by him, and decreeing that the boundary as fixed by the common vendor, C. C. Lewis, and surveyed by the surveyor, to be the proper and true boundary. It is conceded that the amount just above mentioned should have been $300.00, instead of $200.00. Prom this judgment the plaintiff has appealed.

OPINION

Plaintiff’s counsel registered timely objections to any parol testimony for the purpose of contradicting or enlarging the recitals . in the deed under which defendant holds. These objections were overruled, and an order was made making the objections general.

The correctness, vel non, of this ruling is the sole issue in the case as. presented to this court, since it cannot be doubted that, if the said testimony is admissible it fully sustains defendant’s contention that it was the intenion of both vendor and himself, at the time the deed was prepared, that his purchase should include all of the land between the northern boundary of the upper quarter and the telegraph post, pointed out by his and the plaintiff’s vendor.

If there is a patent or latent ambiguity in the deed, parol testimony is admissible to explain it and to enforce the true intention of the parties.

In Ker et al. vs. Evershed, 41 La. Ann. 15, 6 South. 566, it was said:

“Courts of equity, however, have established a special branch of jurisdiction under which, when it is made clearly to appear that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed or intended to embody therein, such mistake may be corrected, and the writing may be reformed to express the real intention of the parties.”

This doctrine has been too firmly established to admit of any question now. The leading case in point is that of Plangue vs. Guesnon, 15 La. 311, which has been many' times cited affirmatively from the Succession of Goodrich, 6 R. 109, down to Sims vs. Jeter, 129 La. 266, 55 South. 877.

Mr. Lewis, the common vendor of the plaintiff and the defendant, originally owned the east half of the east half of Section 71, in Township 20, Range 13— one hundred and sixty acres in all. On the 18th of January, 1915, he "sold to the defendant the upper, or northern, forty, and on the 29th of October, 1917, he sold to the plaintiff the forty and a half lying south of, and adjoining, the defendant’s tract. At the time of the sale to the defendant, there were two or three cabins near, but over the southern quarter section line of defendant’s land. The description in the deeds to defendant and to plaintiff — both of which are authentic in form — are as follows:

Defendant’s land is described as: “The Northeast Quarter (NE%) of the Northwest Quarter (NW%) of Section Seventy-one (71) in Township Twenty (20) North, Range Thirteen (13) East, in the District of Lands North of Red River, Louisiana, containing Forty (40) acres, more or less, with all the buildings and improvements thereon.”

Dorkins’ title describes the land purchased by him as follows: “All and singular the following described property with the improvements thereon, * * * and designated as being the South East Quarter of the Northwest Quarter of Section Seventy-One, and the North half of the Northeast Quarter of said Section Seventy-One, containing in the aggregate, Sixty acres of land, more or less, in Township Twenty North, Range Thirteen East.” Italics ours.

The significance of the fact that in defendant’s deed the buildings and improvements are specifically mentioned, (and, as we gather from the testimony, there were no buildings on defendant’s tract north of the south quarter section line) cannot be ignored, and it certainly indicates a purpose on the part of the vendor to sell enough land to take in the buildings. And the mention of the buildings in defendant’s deed becomes more significant in view of the fact that in the description in the plaintiff’s deed, executed before the same official, there is no mention of buildings.

We, therefore, think that the deed under which defendant holds is ambiguous to say the least of it, and for that reason the ruling of the trial judge admitting parol testimony to explain it is affirmed.

If we could adopt the. theory of plaintiff’s able counsel, that defendant’s deed is the transfer of a definite quantity of land, and is free from all uncertainty, the authorities which he cites and discusses in his able brief would be binding upon the court, but for the reasons stated, we think the case is within the doctrine of the Planque-Guesnon case, cited above.

The judgment must be amended as to the sum awarded the plaintiff. We understand that this is conceded hy counsel for the defendant. And as it is shown that the plaintiff has paid his vendor, Lewis, for 60 acres of land, in cash and mortgage notes negotiable by delivery, we think that his rights as against Lewis to sue for the deficiency, m case he fails to collect the amount from the defendant, ought to be resérved.

It is, therefore, ordered and decreed that the judgment appealed from be amended by increasing the sum awarded the plaintiff against the defendant, from $200.00 to $300.00, and by reserving whatever rights the plaintiff may have against his vendor, Lewis, for the deficiency in the quantity of land sold him, and that as thus amended, the said judgment be, and it is hereby affirmed. Defendant to pay costs of the lower court and plaintiff the costs of this appeal.

Crow, Judge, absent, takes no part.

ON REHEARING.

ODOM, J.

The facts in this case were stated in our former opinion.

Defendant, in answer, sets up in substance, at least, that there is an error in the description of the land sold to plaintiff; that while the description in the deed from Lewis to Dorkins conveys the Southeast quarter of Northwest quarter of Section 71, this description is erroneous, as it was the intention of Lewis to jsell and of Dorkins to purchase only so much of the Southeast quarter of Northwest, quarter of said Section as extended to an east and west line running through a certain telegraph pole, and that, therefore, the plaintiff does not own the land he claims to own and has no right to have a boundary fixed according to an erroneous description.

On the trial of the case the defendant offered to show by parol testimony that plaintiff’s deed contain an erroneous description. Evidence to prove this wrong description was admitted over plaintiff’s objection. The lower court held and we hold that parol evidence is admissible to prove a wrong description in a deed.

In the case of Fleming & Baldwin vs. Watson, 26 La. Ann. 547, the court said:

“It was further objected that parol evidence should not have been received to prove an error in the description of the lands sold to Fleming & Baldwin. If that be true, it would be unfortunate indeed, for there could hardly be any other mode to prove a wrong description.”
“This is not an attempt to prove by parol a sale of immovable property, nor to contradict a valid existing instrument, but to show that by accident or negligence the instrument in question has not been made the actual depository of the intention and meaning of the contracting parties. Ex necessitate rei, parol evidence should be received. It is on this ground that testimony is let in to prove fraud in every kind of transaction. Cases of error are sometimes kindred to those of fraud and should be governed by the same rules. Is it not an actual fraud to claim an undue benefit and advantage from a mere mistake, contrary to the real intention of the parties to the contract?”

In Planque vs. Guesnon, 15 La. 311, it was held that parol evidence was admissible to show that the description of a lot in a deed was made through error and that the lot actually sold was a different one from that described in the deed.

See: Sims vs. Jeter, 129 La. 266, 55 South. 877.

According to the pleadings in this case, the plaintiff, Dorkins, is claiming that which he knows he does not own, and to that except his attempt to perpetrate a fraud is fully set forth in defendant’s answer.

We think parol evidence was. admissible to show the error in the description in plaintiff’s deed under the circumstances of this case.

We do not hold that parol evidence is admissible to prove the sale of real estate but we hold that in this case it was admissible under the pleadings to show that there was error in the description in plaintiff’s deed and to show that he is now claiming land which in fact he does not own.

According to the pleadings and the evi dence,- Dorkins, the plaintiff, owned only so much of the Southwest quarter of the Northwest quarter of Section 71 as extends up to an east and west line running through! a certain telephone pole mentioned in the deeds.

■ According to the pleadings and according to the testimony for Dorkins to set up claim to any land north of said line is to perpetrate a fraud. The six acres of land between the south line of the NE% of NW% of Section 71 and the north boundary line of plaintiff’s land is owned by Lewis, who of course may make such settlement with Montgomery as he sees fit. Plaintiff and defendant are, therefore, not adjacent proprietors and plaintiff cannot maintain his action to establish boundary.

The judgment of the lower court rejecting plaintiff’s demand for the fixing and establishing of the boundary line and our former judgment affirming the same, we think, are correct.

We think, however, that it was error to hold that the defendant should pay plaintiff for the land in dispute for, in so holding, we held that defendant owned the land.

For the reasons assigned, it is now ordered, adjudged and decreed that the judgment of the district court rejecting plaintiff’s demand and dismissing -his suit, be affirmed, and that our former judgment affirming that judgment to that-extent be, and the same is hereby reinstated; and it is further ordered that, in all other respects, the judgment of the district court and our former judgment be set aside, except insofar as our former judgment reserved whatever rights plaintiff may have against his vendor, Lewis, for a deficiency in the quantity of the .land sold .

The cost of the proceedings in the lower court to be paid by plaintiff; the cost of the appeal to be paid by defendant.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 1790
    Second Circuit Appeal
    T. L. NESBIT v. W. ALBERT GIVENS GILBERT STATE BANK AND MOSE LANIER, Intervenors.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Landlord and Tenant —Par. 97.
    Where the lessee virtually placed property in the hands of the landlord in such a way as to guarantee that the proceeds of the sale thereof would go to him for the payment of his rent, a provisional seizure was not justified under Code of Practice, Art. 287, even though the rent was due and unpaid. The landlord had no reason to believe that the defendant lessee intended to remove any of the property from the premises in order to defeat his rights as lessor.
    2. Louisiana Digest — Landlord and Tenant —Par. 102.
    Under Code of Practice, Art. 375, the de- ■ fendant in a provisional seizure may reconvene for damages for wrongful issuance of the writ.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on questions of fact, not being manifestly erroneous, is affirmed.

      Appeal from Eighth Judicial District 'Court of Louisiana, Parish of Franklin, Hon. S. R. Holstein, Judge.
    This is a suit, coupled with a provisional seizure for rent on land and wages as a laborer. Defendant reconvened. The Gilbert State Bank and Mose Lanier intervened.
    There was judgment for plaintiff and for intervenor.
    There was also judgment 'in favor of defendant on the reconventional demand.
    Plaintiff appealed.
    Judgment affirmed.
    Berry & Berry, of Winnsboro, attorneys for plaintiff, appellant.
    W-. H. Thompson, of Winnsboro, attorney for defendant, appellee.
   ODOM, J.

The plaintiff brings this suit to recover the sum of $575.00 for rent on land due for the year 1920 and also the sum of $400.00 due him for wages as a laborer for the same year.

The petition of the plaintiff alleges that .the lessee has removed a portion of the product of the farm for the year 1920 and a portion of the farm implements therefrom and that he fears and believes that his lien and privilege on the property will be lost. He asked for and obtained a writ of provisional seizure, under which there was seized a lot of hay, corn, sugarcane and sweet-potatoes, all in the field, not harvested; and also one tractor, one hay press, and.some other farm implements.

This seizure was made on November 3, 1920.

The defendant answered admitting the, debt sued on, but denying that he was about to remove any of the property from the leased premises, or that he intended at any time to remove any portion therof to the prejudice of plaintiff’s rights.

He set up that he had produced a crop of sweet-potatoes, sugar-cane, hay, corn, etc., on the property for the year and that he had an agreement with the plaintiff to the effect that he would ship the potatoes to the market and give 'the plaintiff the proceeds of the sale thereof, and that in good faith he had attempted to dig the potatoes and market them, and that without any cause or reason whatsoever plaintiff procured the issuance of the writ of provisional seizure and had the property seized.

He alleged that the act of the plaintiff in procuring the issuance of the writ of attachment was malicious and that he had been damaged in the sum of $1,320.00, for which amount he reconvened and asked for judgment.

The Gilbert State Bank intervened in the suit, claiming a privilege on the tractor seized by the sheriff and asked that the tractor be appraised and sold separately from the other property and that out of the proceeds of the sale thereof it be paid by preference and priority over all other creditors. It alleged that it had furnished the money with which to buy the tractor and that its debt was secured by a chattel mortgage thereon.

There was also an intervention by one Mose Lanier claiming a vendor’s privilege for the sum of $150.00 on a hay press which he had sold to the defendant Givens and which was seized with other property under the plaintiff’s writ. He asked that this press be appraised and sold separately'from the other property and that out of the proceeds of its sale he be paid by preference over all other creditors.

Defendant Givens answered both of these oppositions, admitting practically all of the allegations of the third opponents.

On the trial of the case there was judgment rendered in favor of plaintiff, Nesbit, the lessor, for the full amount claimed by him, but dissolving the writ of provisional seizure, and judgment in favor of the Gilbert State Bank and against defendant Givens for the full amount claimed by it, and recognizing its mortgage on the tractor, and also judgment in favor- of Lanier against Givens for the full amount claimed by him and recognizing his privilege on the hay press, and ordering that he be paid the amount of his claim in preference to all other creditors.

There was also judgment in favor of defendant in reconvention for the sum of $975.00 for damages which he had sustained on account of the illegal seizure of his property, and it was ordered by the court that the judgment in favor of defendant should offset the judgment in favor of the plaintiff. against Givens and ordering that the costs be paid by the plaintiff, Nesbit.

From this judgment .only . Nesbit, the plaintiff, has appealed.

OPINION.

The plaintiff, Nesbit, urges in this court that the District Judge erred in dissolving the writ of provisional seizure, and also erred in permitting proof of defendant’s reconventional demand against him, on the ground that his claim was based upon a promissory note and that the claim of the defendant, Givens’ was unliquidated and could not be plead as an offset against his liquidated claim.

Under the view which we take of this case, only two points raised need be passed on by us, which are, whether the plaintiff was entitled to the writ of provisional seizure, and second, whether the defendant was entitled to offer proof of his reconventional demand.

Plaintiff’s suit was filed on November 3, 1920, and ■ on the same day the court ordered that a writ of provisional seizure be issued. The writ was issued and on that date the sheriff seized the property which was mentioned above.

The amount due plaintiff for labor is represented by eight notes, all in the record. We find that on their face all of these notes were due on the date of the filing of the suit. We find, also, in the record a rent note for the sum of $575.00 which is dated October 26, -1920 and made payable on day after date. But on the margin of the note is written the words: “Payable as crop . is moved”. There is some contention as to when the rent was due. The plaintiff alleges and swears that the rent was due on the date on which the writ issued. The defendant, on the contrary, claims that the rent was not. due until the crop was harvested. But due to the fact that the defendant Givens signed the note, which we find in the record, for the amount of the rent and made the note payable on October 27, 1920, we conclude that it was understood that the rent was due on that date. It is true that the plaintiff, Nesbit, refused to accept this note, but we think the date on which defendant made it payable indicates very clearly that he considered the rent due at that time.

Our conclusion is that the entire debt sued for was- due on November 3, 1920, the date on which the writ was applied for and issued.

The testimony shows that neither j;he rent nor the balance due on wages was paid on that date and therefore the rent and wages were due and payable on' that date.

It has repeatedly been held that the mere fact that rent is due and unpaid is sufficient reason for the lessor to apprehend that the property may be removed from the leased premises.

Lalaurie vs. Woods, 8 La. Ann. 366.

Wallace vs. Smith, 8 La. Ann. 374.

Shift vs. Ezekiel, 23 La. Ann. 383.

But in all the cases where it has been ■so held there appears to have been grounds for the lessor to apprehend that the reason for the lessor’s failure to pay the rent.was his desire or intention to remove his property.

In the case of Lalaurie vs. Woods, supra, it was shown that the lessee had advertised his goods for sale.

In Wallace vs. Smith, supra, the court found “other circumstances justifying the allegation of fear of removal”.

In the case of Shiff vs. Ezekiel, supra, the court said:

“Failure to pay the rent was sufficient cause for the provisional seizure; the property of the defendant in' the premises being for sale, the plaintiff might justly fear its removal.”

The foundation or basis of a writ of provisional seizure is fear on the part of the lessor that the lessee will remove the property on which he has a lessor’s privilege from the leased premises and that he may be thereby deprived of his lien and in order to sustain the writ the lessor must show that he had good reason fearing that the property would be removed.

See Code of Practice, 287.

The failure of a lessee to pay the rent when due might under some circumstances justify the fear that he would remove the property.

In the case of Fox vs. McKee, 31 La. Ann. 67, the court said:

“This court has often decided that the lessee’s failure to pay the rent constitutes a good reason for the lessor to apprehend that the property, subject to his pledge may be removed from the premises leased. That was and is the strictest construction that could or can be placed upon the law, nnd — inasmuch as it has been adopted for upwards of twenty-five years — we adhere to it; but we are not inclined to extend it and to hold that his tenants, for the only reason that the rent was not paid on the day fixed in the lease, and though the next day or before the seizure the tenant offers to pay and the lessor refuses to receive the amount of the rent. Under such circumstances, the failure to pay authorizes the dissolution of the lease, but does not authorize the provisional seizure.”

In Dillon vs. Porier, 34 La. Ann. 1103, the court said:

“The law, therefore, does not require that he (the lessor) shall concern himself about his lessee’s honest intent to pay but only whether his intent is to remove the property and destroy the lien, whether the motive of the removal be good or bad.”

The question for the court to decide in the instant case is whether plaintiff had good reason to fear that the lessee would remove the property from the leased premises and thereby defeat his lien.

We find that in the latter part of the month of October, 1920, the plaintiff became anxious about his rent and the amount due him for wages as a laborer during that year and that he had a talk with the defendant, during which conversation the defendant informed him, plaintiff, that he had no money with which to pay the rent and his other obligations but that, he expected to harvest his crop of sweet potatoes at an early date and that he would pay him out of the proceeds of the sale of the potatoes. At the time he informed plaintiff that he had arranged to sell the potatoes to a dealer in Huston, Louisiana, at 80 cents per crate or bushel, and that after paying freight the potatoes would net him 61 cents per bushel, Defendant also told plaintiff at that time that he would ship the potatoes in the name of plaintiff attached to draft to the bill of lading, the draft to be made payable to the plaintiff, thereby insuring the plaintiff against loss on account of the removal of the potatoes. This arrangement seemed satisfactory to plaintiff. • Not only did he not raise any objection thereto, but he expressed satisfaction therewith. With this understanding, the defendant Givens made arrangements to ship his potatoes in a car with another party, informing the other party at the time of the arrangement he had made with his lessor oh the subject. He also ordered crates from Rusto.n which crates were promptly shipped.

On the morning of November 3rd defendant Givens went into the field with a crew of laborers preparatory to digging the potatoes to be shipped under the agreement which he had made with the plaintiff. The plaintiff it seems raised some objection to the digging of the potatoes on the ground that the ground was too wet. The defendant, Givens began to cut the cane, he says with the intention of having the same winddrowed, so as to protect it against cold. Plaintiff left the field and went to Winnsboró and produced the issuance of the writ.

The defendant swears, and his testimony on this point is .not disputed by plaintiff, that after he learned that the plaintiff intended to procure the issuance of a writ and have the property seized, he went to plaintiff and told him that while he had no money with which to pay the claim yet he would sell to him any part or all of the crops on the place to satisfy his claim for rent and for wages. • He says that the plaintiff gave him no answer but left him and that he heard no more about the matter until he was informed that the writ had issued.

It is undisputed that in the latter part of the month of August in that year the' defendant removed some 35 or 40 bales of hay from the leased premises to the town of Gilbert where it was stored. Givens says that this hay was damaged; that there were no sheds on the leased premises where the hay could be protected, and that he removed the hay to Gilbert purely to protect it against the weather. He says that this hay was moved with the full knowlof the plaintiff, Nesbit.

Under the circumstances above outlined, we do not think that the plaintiff was entitled to the writ. It is true the rent was due, but the plaintiff had no reason to believe that the defendant intended to remove any of the property from the premises in order to defeat his rights as lessor. In fact, the defendant virtually placed the property in the hands of the plaintiff in such a way as to guarantee that the proceeds of the sale thereof would go to him for the payment of his rent.

We do not think that this writ was properly issued, and the judgment dissolving same must be affirmed.

As already stated, there is no question but that plaintiff was entitled to judgment against defendant for the full amount sued for, $975.00.

With reference to defendant’s reconventional demand, it is said by plaintiff and earnestly insisted on that his ■ exception of no cause of action should have been sustained and defendant’s reconventional demand against him dismissed.

Under the jurisprudence prior to the passage of Act 50 of 1886 a defendant had no right to reconvene for damages sustained by him on account of the issuance of a conservatory writ but was relegated to an action on the bond. But Act 50 of 1886 amended article 375 of the Code of Practice and added the following:

“And provided further that in all cases of arrest, attachment, sequestration, provisional seizure and injunction the defendant may, in the same suit by reconventional demand, recover from the plaintiff the damages he may have sustained by the illegal resort to such writ.”

The evidence shows that the defendant lessee had some six or seven acres planted to sweet-potatoes, about fifteen acres in corn and soy beans, several acres in lespedeza and one acre in cane. Part of the hay had been cut and ricked, but was left in the field and never baled. The potatoes were never gathered and were a total loss. The plaintiff having been appointed keeper by the sheriff gathered some of the corn and made some syrup from the cane. The evidence makes it perfectly clear that the defendant lessee sustained quite a loss on account of the seizure of his property. The District Judge, after hearing all the evidence and considering the facts reached the conclusion that the defendant was damaged in the sum of ?975.00. We cannot say that he manifestly erred in his findings. The plaintiff having caused damage to defendant by the illegal issuance of the writ must respond.

Just why the potatoes were not harvested or why the hay was not taken care of we are not informed, but the. facts are that these crops were a total loss to defendant.

Under the above views, we think it not necessary to pass upon the other questions raised.

Under all the facts, our conclusion is that the judgment of the lower court is correct on all points which are ■ brought up for review to this court and it is therefore affirmed with costs.


author: REYNOLDS, J.

text:
    No. 2142
    Second Circuit Appeal
    CAROLINE WADDELL v. FROST-JOHNSON LUMBER COMPANY
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. 160 (I).
    Under Employers’ Liability Act No. 20 of 1914, the opinion of the trial judge on a matter of fact, namely, the cause of death of an injured emplpyee, being manifestly erroneous, is reversed.
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge.
    This is a suit to recover compensation under Act No. 20 of 1914, brought by a widow for the death of her husband under Section 8, Subsection 2 (a) of that act.
    C. B. McClung, J. C. Gunter, of Natchitoches, Julius T. Long, of Shreveport, attorneys for plaintiff, appellant.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit by Caroline Waddell, widow of Mose Waddell, deceased, to recover compensation for the death of her husband under the workmen's compensation law of Louisiana.

Defendant denies liability on the ground that Mose Waddell suffered from epileptic fits and came to his death from natural causes.

The first question to be decided is whether or not defendant is, liable.

Mose Waddell, in his usual state of health, was driving a lumber car drawn by a mule. Without hitching the chain which goes around the lumber and keeps it in place, he got on top of the lumber and drove off. The lumber and Mose fell or slipped to the floor. Mose got up, and from that time until his death was never in normal condition.

Paul Silvia, a witness for defendant, testified, page 13.

“Q. Just a little while before this happened, had you seen anything of Mose Waddell around the shed where he was working?
“A. Yes sir, he was driving for me, I was loading for him, I saw him, he came in where I was loading, and he got a load, and throwed his chain across it and got on top of it without fastening it, and I was angry with him, and I hollered at him and asked him what thé hell was ailing him, and he did not tell me anything at all, and about that time he slipped off, and got up without saying a word and went on down to the kiln, and later after that, the boy Oliver Allen told me the mule had killed him, and we went down to the kiln and they had took him up and they had took him to the doctors, and I came back an'd went to work and that is all I know.”

On pages 15 and 16:

“Q. Did Mose fall?
“A. Yes, sir, the lumber slipped off and did not turn over, and he sit down on the lumber.
"Q. What went with the mule?
“A. He had the lines. When the lumber fell the mule stopped and he got up and went on down to the kiln and did not stop at the shed at all.” ^

Just after Mose fell and while he was on his way from the dry shed to the mill, he was met by John Butler who says, on pages 27 and 28:

“Q. How far were you from Mose Wad-dell when he stepped off the tram and was found on the ground? '
“A. I met Mose Waddell coming down to the kiln.
“Q. Did he speak to you?
“A. No sir, never said a word.
“Q. He had his head on one side?
“A. That way, hanging to the left.

Dr. L. N. Hankins, physician for defendant company who treated Mose Waddell after the accident, testifies, pages 30, 31 and 32.

“Q. You treated Mose Waddell prior to this 'date, and you examined him at the time, and knew his history and the history of the accident, and saw the condition of Mose Waddell? What in your opinion at that time was the cause of his death?
“A. He died from a ruptured blood vessel in his head.
“Q. There was no external evidence of a fractured skull?
“A. No sir. There was no external evidence of him having a fit, because he was in a deep coma when I saw him; he was in a deep coma, practically dead.
“Q. He did have a ruptured blood vessel?
“A. Yes, that is what he died from. That could be caused from high blood pressure or a kick.
“Q. You saw no evidence of his having a fit?
“A. No, sir.
“Q. Explain to the court how a man acts after he has had a fit?
“A. Ordinarily when a man has a fit, for four or five hours after he had it his muscles all quiver and he is all froth at the mouth; this man was not doing that.
“Q. If he had had a fit, it would have been some sign for you. to see it?
“A. Yes, ordinarily.
“Q. How long had you done the practice for Mose Waddell?
“A. I been at it five years.
“Q. He never had epileptic fits or spells of any kind?
“A. No, I was never called at his house but once, and that was when he had the dengue fever. I was out there several times when he had the fever.”

From the above evidence of defendant’s witnesses we are convinced that Mose Waddell fell with, on or in a carload of lumber and that this fall was the proximate cause of his death.

Defendant insists that it should be held not liable for damages, on the theory that Mose Waddell came to his death from an epileptic fit, or natural cause.

There is no evidence that Mose Waddell ever had an epileptic fit. The only witnesses tendered by the defendant supporting the epileptic fit are Oliver Allen and Henderson Starks.

Oliver Alien’s testimony was either hearsay as to what was said by a dumb negro, “Dummy Joe” or his opinion or interpretation of the antics of “Dummy Joe”. The antics of “Dummy Joe”, as described by Allen, were:

“He was going that way, he sort of run along backwards.”

The other witness, Henderson Starks, claims to have been right with Mose Wad-dell talking to him and that he saw him fall in an epileptic fit.

But Henderson Starks’ evidence is out of joint with the established facts in the case. It is out of joint with the testimony of Dr. Hankins, attending physician, who testified that there was no evidence of Mose having had a fit. It is out of joint with the testimony of Oliver Allen who found Mose under the tram and gave out the report that Mose had been kicked or killed by his mule. This could not have happened if the testimony of Starks had been true. Starks’ testimony is out of joint with the fact that he did not accompany Mose after the accident to the doctor’s office. It is out of joint with the fact that he did not render any assistance to Mose.

His explanation, when asked why he did not do so, “I was afraid he might have kicked me”, is not, our opinion, reasonable.

For the above reasons the judgment of the lower court must be reversed and under the evidence it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff Caroline Waddell and against defendant Frost-Johnson Lumber Company for a weekly compensation of $3.00 per week for 300 weeks beginning November 18, 1922, with legal interest on each weekly payment from maturity until paid and for the additional sum of $40.00 for burial expenses, with legal interest thereon from judicial demand until paid, and for all costs in both courts.


text:
    No. 2197.
    Second Circuit Appeal.
    MISS LOTTIE FOYE v. ST. FRANCIS SANITARIUM AND TRAINING SCHOOL FOR NURSES
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62, 71.
    An exception no cause of action containing a statement which is not contradicted by the allegation of the petition is properly overruled.
    2. Louisiana Digest — Charities—Par. 12.
    The only obligation that a charitable institution owes to the public, either pay patients or charity patients, is to select with care and precaution the persons who act as nurses. The evidence shows in this case that the nurses were not • negligent.
    (Civil Code, .Art. 2315. Editor’s note.)
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred M. Odom, Judge.
    This is a suit for damages for personal injury.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    Adolph Wolff; Hudson, Potts, Bernstein. & Sholars, of Monroe, attorneys for defendant, appellee.
   REYNOLDS, J.

In this case Miss Lottie Foye sued the St. Francis Sanitarium and Training School for Nurses for $10,-000 damages alleged to have been sustained by her while underging an operation known as hypodermoclysis administered to her by Miss Ora Belle Hayden, a nurse in that institution, under the direction of plaintiff’s physician, Dr. G. M. Snelling, while plaintiff was a patient in the sanitarium.

Plaintiff claims that the hypodermoclysis was too hot at the time it was administered and that it caused a severe burn which gave her great pain and left a permanent injury from which she limps.

Defendant filed an exception of no cause of action, and later answered denying liability on the grounds, first, that it is a charitable institution, organized for charitable purposes, and owed no duty to plaintiff other than the use of all needful care in selecting the nurse used by the physician employed by plaintiff and who administered the treatment upon plaintiff in this case; and, second, that in the treatment given plaintiff there was no fault or negligence on the part of the nurse, Miss Ora Belle Hayden, who administered the hyperdermoclysis under the direction of Dr. G. M. Snelling.

On these issues the case went to trial and there was judgment for defendant and the plaintiff appealed.

OPINION.

The exception of no cause of action cannot be sustained, for the reason that the allegation that the St. Francis Sanitarium and Training School for Nurses is a charitable institution is contained in defendant’s exception and not in plaintiff’s petition. The allegations of the petition as a whole, if taken as true, entitle plaintiff to recover.

On the question as to whether défendant used every precaution, care and good judgment possible in selecting Miss Ora Belle Hayden as one of its nurses, we quote the following testimony:

Mother Superior, pages 28 and 2§:

“Q. Mother, what care do you use, and what are the qualifications of nurses entering your institution for training; what care do you use in selecting those nurses?
“A. Well, they have to meet requirements of the United States Medical Board of Examiners.
“Q. What are those?
“A. Physical, moral and educational requirements; they have to be in good health;' have to be of good moral character, perfectly trustworthy, and at least have completed the ninth grade; and they have three months probation during which time we try them out to see if they are fitted to become a nurse.
“Q. Did Miss Hayden go through that test?
“A. Yes.
“Q. You know Miss Hayden, I presume?
“A. Yes.
“Q. What is your opinion of Miss Hayden as a nurse?
“A. Miss Hayden is, and has always been, one of our best and most conscientious nurses.
“Q. She has completed all the tests given by the Sanitarium?
“A. Yes.
“Q. And as outlined by yourself?
“A. Yes.
“Q. And proven to be satisfactory in every particular?
“A. Yes.
“Q. Ever been any other complaint about Miss Hayden, other than the present one?
"A. No.”

Dr. G. M. Snelling, page 40:

“Q. Do you know Miss Hayden?
“A. Yes, sir.” * * *
“Q. What is your opinion of her as a nurse — as to her qualifications at the time she took this case?
“A. She was a competent student nurse at that time; competent to do the nursing of the hospital.”

Dr. J. Q. Graves, pages 50, 52, 53 and 54:

“Q. Do you know Miss Ora Belle Hayden?
“A. Yes, sir.
“Q. Did you know her on or about the third of October, 1922?
“A. Yes, sir.
“Q. Are you familiar with her qualifications as a nurse?
“A. Yes, sir.
“Q.' State what they were?
“A. She is so regarded by the profession and nurses also as a splendid nurse, very competent.” * * *
“Q. Is it customary to have the student nurses administer hypodermoclysis?
“A. Yes, sir.” * * *
“Q. Would you consider her competent to have charge of an operation like that?
“A. Certainly do, Judge. She has given hundreds of them over there before she graduated.”

Dr. R. O. O’Donnell, page 55:

“Q. Do you know Miss Ora Belle Hayden?
“A. Yes, sir.” * * *

(Page 56):

“Q. I will ask you to. state her qualifications as a trained nurse on or about the 3rd of October, 1922, in your opinion?
“A. Í think she was a very competent nurse.” * * *
“Q. From what you know of Miss Hayden, would you consider her competent to administer this hypodermoelysis?
“A. Yes, sir; ' that is a very simple thing; nothing to do at all except to stick me needle under the skin. Very simple procedure. I think any nurse could do it.”
“Q. You say you taught Miss Hayden?
“A. She was in one of my classes; I taught her regularly at the sanitarium, and have for years.
“Q. How did she class as a student?
“A. Good.”

Under this evidence we are convinced that the St. Francis Sanitarium and Training School for Nurses used due care and was fully justifiable in selecting Miss Hayden as one of its student nurses.

Having used due care in selecting Miss Hayden as a student nurse, the law applicable to the liability of the defendant is fully discussed in the case of John Jordan vs. Touro Infirmary & Hebrew Benevolent Association, No. 135,097 on the docket of Division “C”, Docket 4, of the Civil District Court of the Parish of Orleans.

In that case the Civil District Court held that the only obligations that a charitable institution owes to the public either pay patients or charity patients, is to select with care and precaution the persons who act as nurses.

This case was carried to the Court of Appeal for the Parish of Orleans and the judgment of the Civil District Court was affirmed.

On January 30, 1923, the Supreme Court of Louisiana considered the issues upon an application for a writ of certiorari and refuséd to issue the same, simply stating on the application the following words: “Refused. The decree is correct.”

The principle of law decided in that case and affirmed by the Supreme' Court might very well dispose of the case before us, as it is abundantly shown by the evidence that St. Francis Sanitarium and Training School for Nurses is a charitable institution and that it took good care and precaution in selecting Miss Ora Belle Hayden as a student nurse.

However, we feel that it is only fair to Miss Hayden to say that the evidence introduced thoroughly convinces us that the plaintiff has failed utterly to establish lack of skill or want of efficient treatment by Miss Hayden.

The complaint of the plaintiff is the administration of the hypodermoelysis by Miss Hayden was too hot and caused a se-m-e burn to plaintiff and afterwards the sloughing off of a large portion of the flesh from her left hip.

This might have resulted without any fault on the part of Miss Hayden.

Mother Superior testified, page 30:

“Q. Mother, have you ever had any experience with the treatment of or the giving of hypodermoelysis?
“A. Yes.
“Q. Will you state how long you have seen that treatment given, or what length of time does your experience cover?
“A. Well, I have seen hypodermoelysis given for about twenty years.
“Q. Have you ever seen sloughing occur in cases?
“A. Yes.” * * *
“Q. Did you ever see a case of sloughing, Mother, where the solution was given too hot? Would that cause sloughing?
“A. I have never seen the solution given too hot. I have seen sloughing frequently but the solution is not given too hot.”

Dr. G. M. Snelling, page 41:

“Q. Did you see her right thigh where it had sloughed?
“A. .Yes, sir.
“Q. ' You treated it?
“A. Yes, sir.
“Q. Finally cured it?
“A. Yes, sir.
“Q. Is it your opinion that that was caused hy the solution being too hot, or what caused that sloughing?
“A. Well, I should not think so, This solution could have done that just as we have sloughs occasionally as you have abscesses following hypodermics of any type sometimes.
“Q. This patient was very low at the time you prescribed this treatment?
“A. Yes, sir, very low.
“Q. If this treatment had not been prescribed do you think she would have lived?
“A. Well, I felt like she would not have lived if we had not taken her to the hospital to get what treatment as was necessary; and this was the first measure I ordered given. I felt like that was essential to her life, yes sir.
“Q. Do you know what is the cause of the sloughing in giving of this treatment, doctor?
“A. No, sir, I don’t know definitely what; sometimes we have these sloughs following hypodermoclysis; I could not say definitely what was the cause of the slough.”

Dr. J. Q. Graves, page 49:

“Q. In your experience with this type of treatment, doctor, have you ever had sloughing to follow the giving of this class of treatment?
“A. Yes, I have.
“Q. Do you know what causes that sloughing?
“A. Well, we think' it is due to what we pall necrosis; where fluid is put into the tissues and the heart action is rather bad, circulation is. bad, and it is not picked up fast enough to be carried away. The tissues don’t empty themselves before the blood vessels block up, and we have what is known as cell death, or death of cells in that area, called necrosis.” * * *
“Q. I méan will this sloughing occur whether the solution is hot or warm?
“A. Yes, you could get it where it is not hot. It’s the pressure that produces it.”

Dr. R. O. O’Donnell, page 56:

“Q. Doctor, do you know what causes sloughing in these hypodermoclysis cases?
“Yes, that is, I have my own opinion. It may not be the best, but it is mine. I think it is due to a pressure in the tissues and the pressure cutting off the blood supply; tissue will not live without blood supply; in general, cut off the blood supply to any part of the body and it will cause necrosis or death of the tissues; that’s what necrosis means.”

Miss Ora Belle Hayden, page 58:

“Q. Just state to the court exactly what you . did?
“A. Well, I only followed Doctor Snelling’s orders. He ordered a soda glucos solution to be given every four hours — as much as she could take, and I just followed his orders.
“Q. Tell the court exactly what you did? describe what you did in preparing the solution. Heating it?
“A. The solution had been prepared already and I warmed one bottle of the solution and left the other one to cool. I brought in a sterilized hypodermoclysis bottle, hung it up, and I mixed the solution — put in a portion of the cold and of the hot also. It was fixed to her blood temperature. I tested this by letting a small amount run on the inner part of my arm, also by touching the bottle.”

(Page 61):

“Q. What was the temperature of that hot solution?
“A. It was blood heat.
“Q. Did you have a thermometer?
. “A. No, sir, but I tested it on the inner part of my hand.
“Q. That an active thermometer?
“A. That’s how we were taught to test it * * *
“Q. I just asked you if you knew the temperature?
“A. Well, I know it was not too hot.”
Miss Nettie Mullin, page 70:
“Q. Are you familiar with the method of treatment known as the hypodermoclysis of glucos and soda?
.“A. Yes.
“Q. State whether or not in any case you administered that treatment you had ■sloughing?
“A. I had.
“Q. Was it caused by the solution being too hot?
“A. No.
“Q. Do you know the cause of it?
“A. No, I know the solution was not too hot.”

From all the evidence we are convinced that the treatment administered by Miss Hayden was 100% efficient and that the injury resulted from some unknown cause and not attributable to the fault of any one.

For these reasons, the judgment of the lower court is affirmed.


author: CARVER, J.

text:
    No. 2258.
    Second Circuit Appeal.
    HARVEY BARDWELL v. DR. W. E. REID.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 7
    Where both plaintiff and defendant in a damage suit resulting from an automobile collision are guilty of negligence, the court will leave the matter as It is.' (Civil Code, Art. 2315.. Editor’s note.)
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. J. A. Williams, Judge.
    This is a damage suit arising out of an automobile collision.
    There is a reconventional demand. There was judgment rejecting all demands. Plaintiff appealed.
    Judgment affirmed.
    K. Hundley, of Alexandria, attorney for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues defendant for damages to his person and to his automobile received in a collision with an automobile belonging to defendant and driven by George Dove.

Defendant reconvenes for damages for injuries received by his automobile in the collision.

Plaintiff charges defendant with negligence in driving at an excessive rate of speed on the wrong side of the road and in other respects. Defendant charges plaintiff with negligence of the same kind. The charges are respectively testified to by plaintiff on the ■ one side and by Dove on the other. Each is supported by the testimony of others and each claims support by the physical facts — plaintiff by the fact that when his car stopped it was well on his side of the road, and defendant by the fact that his car at the moment of collision was, as he claims, on his right, as shown by the marks made on the roadbed by the hub of his left front wheel which was smashed by the collision, allowing the hub to drag to the roadbed, along which it scraped until the car stopped. Plaintiff’s car, though, moved a considerable distance after the collision. The collision was between ■ the left front wheels of the respective cars, but after they both came to a halt their hind wheels were about opposite each other. This reduces the weight of the facts relied on by plaintiff. On the other hand, the proof is not convincing as to whether the scraping was towards the left or the right. Plaintiff’s lights were too. bright and blinded Dove, which defendant alleges was negligence on plaintiff’s, part. Dove continued to drive, though blinded, which plaintiff claims was negligence on his part. . This seems an offset.

In our opinion no clear inference can be drawn from the physical facts, and the testimony is too evenly balanced to enable us to place the blame for the accident.

The burden was on plaintiff to show negligence on the part of the driver of defendant’s car, and on defendant to show negligence on the part of the plaintiff.

Evidently the district judge did not consider that either had sufficiently discharged this burden and he rejected the demands of both parties. We cannot say he erred. This conclusion makes it unnecessary to consider defendant’s other ground of defense, namely: That, in

using defendant’s automobile, Dove was not acting in the scope of. his employment.

The decision of the lower court is affirmed.


text:
    No. 2295.
    Second Circuit Appeal.
    ABEL V. ROY v. CLIFTON NORMAND, ET AL.
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Timber—Par. 15.
    One who cuts timber on the land of another in good faith, believing it to be his own timber, is liable for the value of the timber at the stump and not as manufactured into lumber.
    2. Louisiana Digest — Tender—Par. 7.
    A tender relieves defendant from paying costs.
    3. Louisiana Digest — Pleading—Par. 110.
    A tender and admission in pleadings of more than is proven due will necessitate a judgment for the amount admitted although not proven.
    Appeal from Fourteenth Judicial District . Court of Louisiana, Parish of Avoyelles, Hon. S. A. Bordelon, Judge.
    This is a suit for damages for cutting trees belonging to plaintiff;
    .. There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    Couvillon & Bordelon, of Marksville, attorneys -for plaintiff, appellee.
    N. L. Normand, of Marksville,' attorney for defendants, appellants.
   REYNOLDS, J.

This is a suit against Clifton Norman, Clemile Normand and Lester Normand for $100.00 damages for cutting thirty-six trees belonging to plaintiff.

It is admitted by both plaintiff and defendants :

1. That the only issue involved in the case is the value of the timber cut by ■ defendants on plaintiff’s land.

2. That defendants cut from plaintiff’s land thirty-six ash trees.

3. That defendants made plaintiff a legal tender of $36.00 before this suit was filed.

Under the pleadings and the above admissions the only question that this court is called on to determine is the value of the thirty-six ash trees.

OPINION

Plaintiff, Abel Roy, testified, pages 2, 3, 4 and 5 :

“Q. Can you give the court an estimate of the value of those thirty-six trees?
“A. I consider that they are worth five dollars a tree, at least that’s what they are worth to me.
* * * *
“Q. These are the. measures of the trees?
“A. Yes, sir.
“Q. What are those other figures in here?
“A. That does not satisfy anything. The trees are worth five dollars to me.
"Q. You mean five dollars apiece?
“A. Yes, sir, they were worth five dollars apiece to me because I needed them for my ■ own use.
“Q. You needed the trees for firewood?
“A. Yes, sir, I could have sold them but I wouldn’t have for I needed them for my own use.
“Q. You wouldn’t have sold those trees under five dollars apiece?
"A. No, sir, because I needed them.
“Q. And if you had the trees now you would not give them for five dollars apiece?
“A.. No, sir, for I needed them for my own use.
* * * *
“Q. And you say you needed those trees for your personal use and that you would not take less than one hundred and eighty dollars for those trees?
“A. No, sir, I wouldn’t take less than that.
“Q. You say that those trees are worth five dollars apiece to you?
“A. Yes, sir.
“Q. You estimate that, according to a tree five feet in diameter as well as one twelve inches in diameter, not making any difference as to length and width?
“A. Some were worth more than five dollars and some were not five dollars. I give five dollars as an average.
“Q. How much do you think trees on stumpage are worth per thousand feet, that is, if you had it and wanted to sell it and you didn’t need it?
“A. Mr. Bordelon wanted to buy some around there and he wanted to pay six dollars.
“Q. You say Mr. Bordelon wanted to pay six’ dollars per thousand feet?
“A. Yes, sir.
“Q. Where did he want to buy that?
“A. Close to there.
* * * *
“Q. You have asked five dollars a tree, that is, an average of five dollars?
“A. Yes, sir.
* * * *
“Q. Those trees were worth to you five dollars a tree on an average?
“A. Yes, sir.

It will be observed that Mr. Roy only testified as to the value of the trees to him and did not state at any time their real commercial value. It is not contended that the trees possessed any value other than for lumber or firewood.

Clifton Normand testified, page 7:

“Q. Do you remember looking over the property of J. B. D. Roy which adjoins Abel Roy’s property?
“A. Yes, sir.
“Q. After looking over J. B. D. Roy’s property did you go to see J. B. D. Roy to buy this timber?
“A. Yes, sir. j
“Q. Where did you see him?
“A. At his home.
* * * *
“Q. Did you offer to buy his timber on his land?
“A. Yes, sir, I asked him that.
“Q. Did you make him a -price for his ash timber on the stumpage then?
“A. Yes, sir.
* * * *
“Q. What price did you offer him for the ash timber on stumpage?
“A. Three dollars and fifty cents or four dollars.
“Q. Did Mr. J. B. D. Roy agree to accept that price?
“A. Yes, sir.
“Q. Did you agree to pay him that much?
“A. Yes, sir.
“Q. J. B. D. Roy’s property on which you bought the timber adjoins the property of Abel Roy on the west?
“A. J. B. D. Roy is on the west of Abel Roy.
“Q. They are adjoining each other?
"A. Yes, sir.
Page 8
“Q. Ih going over to cut J. B. D. Roy’s timber that you had bought you made a mistake iln finding the line. You made a mistake in commencing to cut the timber?
“A. Yes, sir. What we cut on Abel Roy’s property was left on J. B. D. Roy’s property. Let’s say we cut forty acres square and in other words the property we cut on Abel Roy is left over on J. B. D. Roy’s tract.
“Q. Therefore it is purely a mistake on your part and no bad intention?
“A. Yes, sir, it was a mistake we made.
“Q. What do you pay for ash timber on the stump?
“A. Five or six dollars a thousand, that is scale measure.
“Q. There is a certain way of measuring timber on the stump?
“A. Yes, sir.
“Q. Did you get anybody to measure that timber for you? These thirty-six trees?
“A. Yes, sir.
“Q. Who did you get?
“A. Mr. L. H. Bordelon.
“Q. He measured those same trees in' question?
“A. Yes, sir.
Page 9
“Q. How .much do you get for your lumber?
“A. An average of thirty dollars a thousand feet. That is without expense at all. That’s what we have to take expenses out of.
“Q. How much expense is there per thousand feet?
“A. -Between twenty and twenty-two dollars expense. That is for the logs, for the hauling and the sawing, then the hauling of the lumber to the cars. You make about eight dollars profit.
“Q. What you cut out of the logs, has that any value?
“A. Very little. We sell it for twenty-five or fifty cents a load.
“Q. That’s good for firewood?
“A. Yes, sir.
“Q. That’s waste, isn’t it?
“A. Like I say, it has very little value; we sell it for twenty-five cents a ■ load just to get it out of the way. In that amount of trees we cut there were about ten or fifteen loads at twenty-five cents a load.
Page 10
“Q. That made two dollars and fifty cents?
“A. Yes, sir.
“Q. A man who uses that ash wood for fuel, he wouldn’t lose those slabs, would he?
“A. No, sir.
“Q. On the premises it is more valuable than twenty-five cents, a load?
“A. No, sir; you can buy it for twenty-five cents • a cord. I have over a hundred acres of nice trees that I would sell to you for twenty-five cents per cord.
* * * *
“Q. You said a while ago, in the expense of the trees that you included out of the twenty-two dollars the purchase price?
“A. Yes, sir, thirty dollars was the gross receipt.

L. H. Bordelon testified, page 11:

“Q. Did you measure those trees?
“A. Yes, sir.
“Q. Is there a certain positive way to measure timber like that when logs are not there any more?
“A. Yes, sir.
“Q. Did you scale those thirty-six trees?
“A. Yes, sir.
“Q. Have you got a statement there with yoii of that?
“A. Yes, sir. But I found thirty-four trees instead of thirty-six and that made fifty-three logs.
“Q. What did you find according to the rule of measurement? That is, how many thousand feet of lumber were there in the thirty-four trees?
“A. - 3,397 feet, and I found four pieces that couldn’t be used on the ground and that measured 168 feet.
“Q. You found the aggregate number of feet of timber cut from those thirty-four trees amounting to 3,397 feet and you found four pieces on the ground that measured 168 feet?
“A. Yes, sir.
“Q. What do you consider ash timber is worth per thousand feet on the stump at that place, what was it worth per thousand in April of last year?
“A. I didn’t keep that in mind much. I wouldn’t have paid more than six or seven dollars- a thousand, that’s all I could pay. Seven dollars is the most I would have paid.”

Our Supreme Court held in the case of Schlater vs. Gay, 28 La. Ann. 340:

“The value of the timber at the time it was felled should determine the amount of loss sustained by the owners of it.”

One who cuts timber on the land of another in good faith, believing it to he his own timber, is liable for the value of the timber at the stump and not as manufactured into lumber.

Bell & Brother Lumber Co. vs. Simms Lumber Co., 121 La. 627, 46 South. 674.

Sibille vs. Eastham, 136 La. 557, 67 South. 364.

In McGee vs. Louisiana Lumber Co., 123 La. 696, 49 South. 475, the court said:

“As defendants were not knowing and willful trespassers, we have no hesitation in coming to the conclusion that the damages should not be fixed in accordance with the rule laid down in the Guaranty Company vs. Drew Investment Company, 107 La. 251, 31 South. 736, and Wooden Ware Co. vs. U. S., 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230. In these cases the trespass was wanton and willful. The plaintiff is entitled to the value of the timber; nothing over its value.”

We are convinced that a preponderance of the evidence sustains defendant’s contention that the fair value of the timber at the stump at the time it was felled was not over eight dollars per thousand feet, and that the timber cut, including the 168 feet of cull timber, amounted to 3565 feet. At $8.00 per thousand feet the value of the timber cut by defendants on plaintiff’s land was $28.52.

It is admitted in the pleadings that defendants made plaintiff a legal tender of $30.00.

This tender relieves defendant from the payment of any costs in the case. It also binds them to pay the plaintiff that amount.

It is - therefore ordered, adjudged and decreed that the judgment of the lower court be amended by reducing the amount allowed plaintiff to $30.00, and accordingly it is now decreed that plaintiff, Abel V. Roy, do have and recover judgment against the defendants, Clifton Normand, Clemile Normand and Lester Normand in solido for the sum of thirty dollars with five per cent per annum interest thereon from April 24, 1924, until paid. All costs in both courts to be paid by plaintiff.


text:
    No. 2208
    Second Circuit Appeal.
    HENRY PIPER, ET AL. v. MRS. ELIZA GRAY.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 270, 277, 284.
    The obligation of the vendor is to place the vendee in possession of the property sold and defend the vendee’s possession in case any adverse claimant sought to dispossess them by a superior title. The vendor is not obliged to defend the vendee against a mere eviction by force not alleged to be based on any claim of right.
    (Civil Code, Art. 2500. Editor’s note.)
    2. Louisiana Digest — Evidence—Par. 222.
    Parol testimony to prove a rescission of a sale of real estate is inadmissible.
    (Civil Code, Articles 2275 and 2276. Editor's note.)’
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. John A. Williams, Judge.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed with reservations.
    T. F. Hunter, of Alexandria, attorney for plaintiffs, appellants.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   CARVER, J.

Mrs, Eliza Gray, as the representative of Philip F. Gray, deceased, having sued out executory process for the enforcement of a mortgage and vendor’s lien on certain land sold with warranty on September 11, 1918, by said Philip F. Gray to Henry Piper and Frank Piper, this suit was brought by Henry Piper and the legal representatives of Frank Piper, then deceased, to retain further proceedings under said process.

The grounds alleged in the petition are:

1. That one John - Forrest, in the latter part of 1919, took posession of part of the land included in the sale, built a fence around same, notified plaintiffs that he was the owner thereof, ran them off and told them never to enter same again.

2. That on the occurrence of said interruption* of their possession, they demanded of Gray that their title to all of the land be perfected by him before they completed payment; that Gray immediately took steps to have them quieted and clear up the title “agreeing either to perfect their title or to refund the amount of money which they had paid, or, if they so desired, to permit them to retain a portion of the land of which they still had possession and give them back the three outstanding notes on which executory process has now been issued.”

3. That the consideration for which the notes were given has failed by reason of their eviction from part of the property and the notes are therefore extinguished.

4. That Gray consented to an' extension of the time for the payment of the notes until he could perfect the title to the land sold by him with warranty.

They also allege that Gray died in July, 1921, before he had time to join them in a suit for the recovery of the land from which they had been evicted.

They further allege that they had offered to pay Mrs. Gray the amount of the three notes, provided she would clear up the title to the land and that she refused to do so.

The prayer of the petition is that an injunction issue that on trial same be perpetuated; and for judgment annulling and cancelling the notes foreclosed on.

There is no alternative prayer for the rescission of the entire sale either because of the eviction or because of Gray’s alleged agreement to refund the price and take back the land.

Neither is there any prayer for the enforcement of Gray’s alleged consent to extend the notes until perfection of the title.

There is, however, a prayer for general relief.

The District Judge rejected the demands of plaintiff who thereupon took an appeal.

The proof, while showing that Forrest took possession of some land of which plaintiffs were in possession, yet it falls far short of showing that the land Forrest took was included in Gray’s sale, to the Pipers. The proof rather shows it was not so included, although it is not conclusive one way or the other.

It that land were part or the land sold by Gray, though the eviction against which a vendor warrants is not one based merely on force or intimidation, such as is here alleged, but one based on right.

Civil Code, 2500, says:

“Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof occasioned by the right or claims of a third person.”

Generally this eviction must be shown by legal process.

In Morris vs. Kenton, 2 La. Ann. 722, a buyer sued in warranty to recover the price paid and showed a judgment of eviction to the suit in which it was rendered, though, neither he nor his vendor has been made a party. The court rejected his demand, stating that the judgment' was not binding on him or his vendor. The Syllabus reads, “To make a vendor liable under his warranty the purchaser must be evicted by some lawful authority. Per curiam. The letter must maintain and vindicate his possession against intrusion, or any force but that of the law itself.”

In Minor vs. Robinson, 6 Rob. 166 being a suit for the balance due on property sold, defendant’s demand for diminution of the price on account of partial eviction, was rejected because the proof showed that though placed in possession by his vendor he had voluntarily yielded this posession to an adverse claimant. The Syllabus reads thus:

“A vendor will not be responsible, where the purchaser has voluntarily surrendered the possession of the thing sold, without any action having been brought against him.”

There are cases holding that where the sale is an absolute nullity because the property belongs to some one else than the vendor, actual eviction need not he shown; but the doctrine of these eases applies only where the proof is clear that there is an outstanding title to which that given by the vendor must yield. Here no such title is even alleged.

The case of Bonvillain vs. Bodenheimer, 117 La. 794, 42 South. 273, exhaustively considers the law on this question.

Plaintiff did not offer to prove any title in Forrest and such title if it had been offered would have been inadmissible because not alleged.

This consideration disposes of plaintiffs’ complaint that their possession was disturbed and also their complaint that the consideration of the notes had failed by reason of the alleged eviction.

Plaintiffs offered parol evidence to show that Gray had agreed or at least expressed ' willingness either to take back all the land and refund the price or to let them keep what they still had and surrender the notes remaining unpaid or to • extend payment of these notes until he could clear up the title.

The District Judge excluded this testimony so far as concerned any agreement to • give back the price and take back all the land or surrender the notes and let plaintiffs keep the land they still had in possession.

We think this ruling correct.

It was virtually an attempt to prove the rescission either in whole or in part of a sale of real estate, which, under Civil Code 2275 could not be done.

In Emmerling vs. Beebe, 15 La. 251, it was held that an offer of parol testimony, made in that case, was, in substance, an effort to prove that a sale of a slave had been rescinded and that parol testimony was not admissible for that purpose.

This consideration disposes of two of the alleged agreements of Gray, namely: That he was willing to undo the sale entirely or undo it partially by giving the unpaid notes back and letting plaintiff keep the land of which they still retained possession.

There being no prayer for the enforcement of the alleged agreement to extend the notes, we might terminate the' case here. If, however, the prayer for general relief can warrant the court in considering this question, we think plaintiffs’ contention on this score without merit.

The only evidence actually found in the record on this question is the testimony of Henry Piper, page 12, as follows:

“Is it not a fact that Gray told you that he did not want you to finish paying for that land until he could quiet your title to it?”

Objection was made but overruled, and the witness answered:

“Yes, sir.”

Alice Taylor, the widow of Frank Piper, was asked, page 17.

“Did Gray promise at that time (meaning on an occasion when he came to her house) to give you back those notes?”

Defendant’s counsel objected, but the court overruled the objection, and the witness answered:

“Yes, sir.”

We think this objection should have been sustained for the reasons given above.

This witness was not asked whether Gray ever agreed to extend the time or not.

C. F. Wilkerson, though, was asked, page 23:

“Did Mr. Gray during the course of a conversation that he had with you about this property, tell you that he had agreed to extend the time for the payment of these notes until -he could quiet these negroes in their possession or refund the said notes?”

Counsel for defendant objected and the court sustained the objection.

As asked, the question was objectionable, although if the matter of extension and the matter of refundment had been separated, the question as it related to the extension would in our opinion, have been permissible, although that relating to refundment would not.

Taking it as proven in the case, though, that Gray did agree to an extension, it is not pretended that there was any consideration -for this agreement other than the obligation which plaintiffs claim he was under to restore them possession of the land from which Forrest had run them off.

The record, though, does not show that he was under such obligation, nor, as held above, were the allegations of the petition such as to permit proof of any such obligation.

Gray’s obligation as vendor was to place them in possession of the property sold, which he seems to have done. His further obligation was to defend their posession in case any adverse olaimant sought to dispossess them by a superior title. He was not obliged to defend them against a mere eviction by force not alleged to be based on any claim of right.

Plaintiffs’ duty was to maintain by legal process the possession which Gray had given them.

Even if Gray before the sale had not had any possession of the property, plaintiffs themselves seem to have had possession long enough to entitle them to the possessory action.

If Forrest’s method was much as they, could not or did not care to resist by methods in kind, they could and should have vindicated their own right and performed their duty to Gray by bringing a possessory action, in which, under the facts as stated in their petition, they would have succeeded. Then, if Forrest had brought a petitory action alleging a superior title, they could have called Gray in warranty. Even such an attack by Forrest would not have entitled them to suspend payment of the price. Under articles 2557 and 2558 of the Civil Code the vendor can either give security in such case and demand payment to himself, or if he choose not to give security may compel the buyer to deposit the price subject to the decision in the suit.

We have examined the two decisions cited by counsel for plaintiff, namely:

Barrow vs. Caseaux, 5 La. 72; Greenwell vs. Roberts, 7 La. 63, but do not think they entitle plaintiffs, under the circumstances of this case, to withhold payment.

In the Greenwell case, it appears that one Harrelson, an attorney, had obtained a judgment against the plaintiff for Rutherford Fisk and McNeilly; that plaintiff had given Harrelson a mortgage upon consideration of his cancelling this judgment; that he had not cancelled samó and had no right or authority to do so; but that he was proceeding to execute the mortgage.

The court properly held that the consideration of the mortgage had failed.

In the Barrow case, defendant had sold plaintiff a tract of land shown on a plat exhibited before the sale as# high land Thereafter the location of the land, which had not been approved by the Government, was changed, the result of the change being to substitute 150 acres of low, swamp land in place of the high land for which plaintiff had contracted. Defendant, in recognition of the clear obligation that rested on him under these circumstances, had agreed to a reduction in the price agreed on. Subsequently in violation of this agreement he undertook to foreclose for the balance due on the entire agreed price. The court held that his promise to grant a reduction was binding, being based upon a just consideration. The eviction in that case being, by legal authority and not “frontier process”, the court held that the responsibility of the defendant to meet the contingency was a good consideration.

In this case, though, the record does not show nor does the petition even allege any superior right in Forrest which suprior right would be necessary to place any responsibility on defendant to meet the contingency which would have been presented if Forrest had brought suit; much less does it show any responsibility on defendant to restore plaintiffs to a possession from which they have been evicted without any legal process, and so far as the record shows, without any legal right.

Perhaps it is not necessary to make any such express reservation, but it will do no harm to reserve plaintiffs’ right, in case they pay the balance due on the purchase price, to sue to recover same, in case they can show that the title they obtained from Gray was not such a title as successfully could • have been opposed to Forrest’s if Forrest had brought suit.

. With the reservation above mentioned, the judgment of the lower court is affirmed.


text:
    No. 2216.
    Second Circuit Appeal.
    S. J. HARPER v. JOHN BARTON.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Prescription — Par. 107.
    Under Article 3538 of the Civil Code, as amended by Act No. 78 of 1888, items on an account over three years old at the time suit is brought (citation made) are prescribed.
    Appeal from Fifth Judicial District Court of Louisiana, parish of Winn. Hon. J. E. Reynolds, Judge.
    A. Leonard Allen, of Winnfield, attorney for plaintiff, appellant.
    Moss, Peters & Ware, of Winnfield, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues defendant for $243.45, besides interest, alleged balance due on open account. Annexed to the petition is an itemized statement of the goods alleged to have been purchased and the credits; the debit sjde beginning March 15, 1919, with an item of balance due on phosphate, $32.00, and then showing no further item until March 6, ■ 1920, when frequent purchases are charged in March, April, May, June, July, August, September, October and November, 1920, the last item for that year being November 26. Nothing is charged then until August, 1921. Interspersed are various credits of cash throughout 1920 and 1921 both.

Defendant denies owing the debt, and alleges that he did not trade with plaintiff at all during the years 1920 and 1921. He also pleads the prescription of three years.

Citation was served December 14, 1923.

The district judge gave plaintiff judgment for $47.50, being the total amount of tbe purchases made in 1921, bolding tbat payments of $41.55 made in tbat year should be imputed to tbe oldest items on tbe account, and bolding, further, tbat all of tbe items for 1920 were prescribed.

Plaintiff appealed and defendant does not ask for any amendment of tbe judgment.

Plaintiff contends, in this court, tbat tbe various payments made in 1921 were tacit acknowledgments of tbe debt which interrupted the prescription of three years.

Defendant claims tbat under Civil Code, 3538, as amended by Act 78 of. 1888, tbe interruption of prescription on open accounts can only be proved by written acknowledgment.

Tbe pertinent parts of tbe original article and of tbe act amending it are as follows:

“The following actions are prescribed by three years: * * *
“That on the accounts of merchants, whether selling for wholesale or retail. * * *
“Tbat on all other open accounts.
“This prescription only ceases from tbe time there has been an account acknowledged, a note or bond given, or an action commenced.”

Act 78 of 1888 provides:

“That Article 3538 of tbe Revised Civil Code of Louisiana be amended and reenacted so as to read as follows:
“ ‘Art. 3538. Tbe following actions are prescribed by three years: * * *
“That on tbe accounts of merchants, whether selling for wholesale or retail.
“Tbat on all other accounts.
“This prescription only ceases from tbe time there has been an account acknowledged in writing, a note or bond given, or an action commenced.”

Tbe changes were in striking out tbe word “open” between tbe words “other” and “accounts” and in interpolating tbe words “in writing” after tbe word “acknowledged.”

Defendant’s contention appears to be sustained by tbe decision in Sleet vs. Sleet, 109 La. 302, 33 South. 322.

In that case tbe plaintiff sued for a balance on open account running some eighteen years and consisting mainly of wages due him by tbe defendant, but in part of other things; tbe account being credited from time to time with money and goods received by plaintiff from defendant and being balanced at tbe end of each year. Plaintiff kept tbe books, but tbe court found tbat defendant bad access to them and probably knew what they showed. At any rate, defendant did know tbat plaintiff was drawing goods and money on tbe account.

Tbe court, considering Article 3538 as amended, held that all items on tbe account over three years old at tbe time tbe suit was brought were prescribed, virtually bolding tbat tbe credits on the account, not constituting, as to defendant, written acknowledgments, did not interrupt prescription.

We think it clear tbat if this decision correctly expresses tbe law, tbe judgment of the lower court was unquestionably correct.

But learned counsel of plaintiff cites three later cases which, be claims, sustain bis contention tbat prescription on an open account can be interrupted by a payment.

These are:

Block vs. Papania, 121 La. 683, 46 South. 694.

Succession of Driscoll, 125 La. 287, 51 South. 200.

Lewis vs. American Creosote Works, 150 La. 194, 90 South. 566.

In the Block case, the court said:

“We do not think it was the intention of the General Assembly to cut off absolutely ‘interruptions’ of prescription under the short prescriptions unless the evidence thereof in writing should be produced, while allowing parol evidence to be introduced to establish the interruption of prescription upon claims or debts evidenced by writing, to which the larger five-year prescription is applicable.”

But the thing relied on in that case as interrupting prescription was not an: acknowledgment implied by a payment but an express promise to pay.

The court quotes from the opinion of the Court of Appeal as follows:

“The account is on its face prescribed; but the testimony is conclusive that the defendant on several occasions before prescription had accrued verbally promised to pay the debt.”

We take this to mean that he not only owed a debt but knew the amount of it and that the promise related to a specific debt.

The court further said:

“The present decision in no wise departs from that of Sleet vs. Sleet, 109 La. 303, 33 South. 322.”

In the Driscoll case the court was not dealing with an open running account composed of various items, but with a single transaction of a loan of $1,000.00. Moreover, the plea of prescription was sustained, the court holding that parol was not admissible to prove interruption as against a party deceased.

The Lewis case, too, was not one of an open running account composed of different items, but though declared to be an account was a single transaction, being a purchase of ten carloads of creosote oil.

In neither the Driscoll nor the Lewis case was it intimated that the Sleet case was to be regarded as overruled.

Counsel also cites the following cases:

Butler vs. Ford, 9 Rob. 112.

Lejeune vs. Hebert, 6 Rob. 419.

Wilson vs. Bannen, 1 Rob. 566.

McGinty vs. Henderson, 41 La. Ann. 382, 6 South. 658.

The McGinty case, it is true, was decided in 1889, but it was brought in 1887 before the change in the law which, therefore, could have had no bearing on the controversy. Moreover, it turned on the construction of Article 2278, and the holding was that' payments made by checks were not parol but written evidence. Then, too, the ease involved not a running account but a single loan of $35,000.00.

The other cases cited were decided before the change in the law, and all of them dealt with single debts and not running accounts composed of various items.

In the Butler ease it was a note.

In the Lejeune case it was a debt secured by mortgage.

In the Wilson case it was a single freight bill, and the question was not interruption of prescription but suspension by reason of holding the freight in pledge.

In all these cases that involves payment it was • clear that the payments did imply acknowledgments of the debts, because in each of them the payment could have applied only to the specific debt claimed by the creditor and to nothing else.

But in this case the account is not a single transaction but a running account composed of various items and, indeed, apparently consisting of two different accounts.

On November 26, 1920, the account shows a balance due by plaintiff of $236.50, and thereafter it proceeds as follows:

1921 Cr. Dr.

Aug. 20 .......................... $ 3.20

Sept. 3 7.55

Sept. 5 __________________ $ 7.55 --------

Sept. 10 1.60

Sept. 20 ..... 12.20

Sept. 20 __________________ 2.00 ________

Oct. 8 .......................... 7.60

Oct. 8 .................. 7.00 ________

Nov. 5 .......................... 2.10

Dec. 3 .......................... 6.85

Dec. 3 __________________ 10.00 ________

Dec. 17 ................. 5.00 ________

Dec. 17 .......................... 6.40 1922

Jan. 2 10.00 ________

Total __________________ $41.55 $47.50

There is no testimony going to show that the account was rendered or that defendant knew in 1921 how much plaintiff claimed against him or that in making the payments in 1921 and 1922 he intended them to' apply to an account, the amount of which he did not know. He, himself, swears that he owed nothing, having done no trading with plaintiff either in 1920 or 1921. We are satisfied he is mistaken about this, the plaintiff having abundantly proved that he did get all the goods charged on the account; but he did not prove that defendant knew how much this account was or that he made the payments as implied acknowledgments of the correctness thereof; and the dates and amounts would rather seem to indicate that in making the various payments in 1921 he was paying on the goods bought that year.

The first payment in 1921 was $7.55, the exact amount of the purchase made two days before. It is reasonable to suppose that this payment was intended to cover that particular purchase, and hence could not be regarded as an acknowl edgment of anything else. The subsequent payments never did amount to quite as much as the purchases previously made in 1921 and together totalled $5.95 less than those purchases. In view of this and in the absence of all testimony tending to show that the payments made in 1921 were intended to apply to the running account generally, especially as this account seems not to be one account but two, with an interval between them of nearly nine months, we do not think the payments can be regarded as implied acknowledgments of the account so as to interrupt prescription thereon even if such an acknowledgment as is implied by a payment can do so in any case of open account, as to which we express no opinion.

The judgment of the lower court is affirmed — Reynolds, J., recused.