text:
    No. 23,539
    First Circuit
    JOSEPH v. SLIMAN
    (Feb. 12, 1927. Opinion and Decree.)
    (May 3, 1927. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Estoppel—Par. 44, 46.
    One is not estopped by his forbearance in allowing his neighbor to enclose his land nor by his inactivity in allowing his neighbor to erect a building on his land.
    2. Louisiana Digest — Estoppel—Par. 24, 44.
    Even though one removes the gallery and posts of his restaurant building to allow his neighbor to construct a building on his land he is not thereby estopped from claiming title to his land because his neighbor was not deceived or misled thereby.
    3. Louisiana Digest — Evidence—Par. 324, 346.
    The testimony of a witness that she had sold all her interest in tho property to her brother is as binding as if it had been her answer to an interrogatory on facts and articles.
    4. Louisiana Digest — Petitory and Posses-I sory Actions — Par. 11, 21, 38.
    The plaintiff in a petitory action is not called on to make out a good title against the whole world when no outstanding title is urged by the defendant in his answer to plaintiff’s demand, the defendant not having any title to the strip of ground in controversy.
    Appeal from the District Court, Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Charles Joseph against Alexander Sliman.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. L. Garland, of Opelousas, attorney for plaintiff, appellee.
    Dubuison, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

Appeal from the District Court, Parish of St. Landry, B. H. Payy, Judge. Petitory action, involving a strip of land, the ownership of which is dependent on the dividing line separating two contiguous estates, emanating from the same author.

James E. Hatfield and Martin S. Hatfield sold and delivered to Mrs. Hiley B. Toliver, wife of William Toliver, by authentic act, dated January 19, 1903, “A certain lot of ground situated at Palmetto on the south side of the Texas & Pacific Railroad track bounded on the north by the Texas & Pacific Railroad track, on the south, east and west by the lands of vendors, said lot measuring on the north line fronting said railroad track, one hundred feet, and on the east and west line, one hundred and twenty-six feet, said lot ■beginning at a point, one hundred and sixty-four' feet east of the store building occupied by M. L. Parbe and owned by vendors.” This title was duly recorded on the same day in the conveyance records of the Parish of St. Landry.

James E. Hatfield departed this life leaving his brother, Martin S. Hatfield, and his sister, Mrs. Mary Hatfield, wife of T. L. Stokes, as his sole heirs at law.

Martin S. Hatfield and Mrs. Mary Hatfield Stokes, on August 20, 1903, sold and delivered to M. L. Parbe, out of the same tract, of which the lot sold to Mrs. Toliver was part, “A certain lot of ground, situated in the town of Palmetto and to be known thus: Cofnmencing on the west, within fifteen feet from the store now occupied by purchaser and running east and bounding with the lot owned by J. M. Toliver, bounded north by the Texas & Pacific Railroad and running from the railroad south, one hundred and twenty-three feet.” This title was also recorded on the day it was passed in the conveyance records of the Parish of St. Landry.

The front measure of the lot sold and delivered to Parbe is not stated in terms, but it is definitely fixed by. the place of beginning and its western boundary on the lot referred to as J. M. Toliver, but which was in fact Mrs. H. B. Toliver, wife of Wm. Toliver. The lot sold to Parbe, commencing fifteen feet from the Parbe store building and extending from thence to the lot sold and delivered to Mrs. Toliver, it follows that 164 feet, less 15 feet leaves, 149 feet. The Parbe lot therefore fronts on the railroad for 149 feet. It also follows that the east line of the Parbe lot is at the same time the west line of the lot sold to Mrs. Toliver, the two lots adjoining 164 feet east of the Parbe store. The lot sold to Mrs. Toliver having been sold and delivered first, the location of the same 164 feet east of the store building occupied • at the time by M. L. Parbe, and owned by James E. and Martin S. Hatfield, determines and definitely fixes the location of the lot sold and delivered to Parbe. Parbe sold and delivered his lot to Godchaux and Godchaux sold and delivered same to Charlie Joseph, the plaintiff. Mrs. Toliver sold and delivered her lot to J. M. Phillips and Phillips sold and delivered same to Alexander Sliman, the defendant.

The titles of the plaintiff and defendant deraigns from the vendors, James E. and Martin S. Hatfield. At the time these two lots were sold, the tract of land out of which they were taken had not been platted into streets nor squares. The plaintiff alleges that the defendant has entered on, taken possession of and detains from him eighteen feet front on the Texas & Pacific Railroad track by a depth of one hundred twenty-three feet from the eastern side of his lot adjoining defendant. The object of this suit is to recover possession. Defendant’s answer is seemingly inconsistent, in that defendant in one part -of his answer denies that his lot is the original Toliver lot, yet he claims in his answer title and possesssion under Phillips and Mrs. Toliver. He admits that he has possession of the strip of land described in the petition of the plaintiff, and alleges that it is part of the lot which he acquired from Phillips. He alleges that his title from Phillips included this strip of land. That his authors had possession of the same and that he has had actual physical corporeal possession of the strip of land in question, under inclosures, as owner in good faith by • title translative of property, since he acquired from Phillips. He ipleads the prescription of ten years acquirendi causa in aid of his title. He further alleges that the plaintiff has stood by and seen him erect a garage and filling station on the strip of land, that plaintiff in fact agreed to the erection of the same. That plaintiff has by his conduct estopped himself from claiming the strip of ground in controversy. Alleging title, possession and limits under’ Phillips, he called X M. Phillips in warranty. Phillips appeared and for answer to his demand, denied that he had sold or delivered the strip of land to defendant. He alleged that the property he sold and delivered to defendant was that which he had acquired from Mrs. Toliver and that the strip of land in controversy was not part of, nor included as part of same. From a judgment in favor of the plaintiff, the defendant appealed. There is no dispute about titles on the trial of the case. Several witnesses testified without effort to show to the contrary, that the Hatfield store building, occupied by M. L. Farbe in 1903, has never been moved and stood at the time of the trial in the identical place where it was standing at the time of the sales to Mrs. Toliver and M. L. Farbe. That actual measurement by a steel tape line from the stor.e building in question one hundred sixty-four feet east, proved that the strip of land claimed by the plaintiff was part of the lot which Martin S. Hatfield and Mrs. Mary Hatfield Stokes had sold and delivered to M. L. Farbe and which Farbe and his successors in title had sold and delivered to the plaintiff. The title from Phillips to the defendant declares that Phillips sells and delivers to him the same property which he had acquired from Mrs. Toliver. The evidence shows without effort to show to the contrary, in fact defendant proved it himself, that Mrs. Toliver had enclosed her lot soon after buying it and Mr. Phillips testified positively and without dispute that he never changed the fence, but sold the same limits to the defendant, that had been establshed by Mrs. Toliver. The evidence shows without question to the contrary that defendant’s possession of the strip of land in controversy commenced after he had bought the property from J. M. Phillips. Plaintiff soon after buying from Godchaux, who had bought from Farbe, erected on his lot a small building which he used as a restaurant, adjoining and so close to the line between him and the defendant that the drip from this little building fell on defendant’s land. Defendant objected to the drip, and about twelve years ago, acting through an attorney, he wrote plaintiff to move his house. Plaintiff complied and moved his house about twenty feet from the line that then stood in the form, of a fence . between them. Defendant almost immediately,- acting on his own volition, moved the fence that had been erected by Mrs. Toliver on the west line of her property and which had been maintained in the same place by Phillips, so as to enclose and include the strip of land situated in between the fence which had been erected by Mrs. Toliver, 164 feet east of the Farbe store building and the place to which the plaintiff had moved his building and defendant has kept possession ever since. Lately and of his own free will and accord he decided to erect a garage and filling station on the’ strip which he had thus enclosed. He did not ask permission of the plaintiff to move the fence which Mrs. Toliver had erected and which marked the limits of their adjoining properties, so. as to enclose a strip of the plaintiff’s land, nor did he obtain permission from the plaintiff to erect on the strip a garage and filling station. The possession, ownership and limits which defendant undertakes to claim in this suit is not based on title, possession nor limits received from his authors, but originated with himself in the way and at the time above mentioned. As his possession, limits and claim to ownership is not based on title, no foundation exists for the prescription of ten years acquirendi causa which he pleads. Defendant urges that Mary Joseph was the owner of an undivided half of the strip of land and that plaintiff has no title from her. Plaintiff has a title from Mary Joseph. The title describes the lot sufficient for identification and on the trial of the case Mary Joseph took the stand as a witness and testified under oath that she had sold her interest in the property to Charlié Joseph. Plaintiff’s title is sufficient against defendant who has no title at all. We agree with defendant that the conduct of both plaintiff and defendant, as regards this strip of land has been unusual. Plaintiff testifies that defendant made him move his house, that after he had moved his restaurant building back from the line and defendant commenced to enclose the strip of land, he informed defendant that he believed the land belonged to him, but defendant did not heed his admonition. That when defendant commenced to erect a garage and filling station on it he told him again that he believed the land belonged to him, but defendant went ahead as he saw proper. Plaintiff claims that he believed all along that it was his land but was not sure of it. When defendant had his garage and filling station underway, plaintiff’s restaurant building was very close to the garage and filling sation, so he took out the gallery posts of his restaurant building and even removed part of his front gallery to make the approach and exit from the garage and filling sation more convenient and easier for people entering and leaving it. Plaintiff, speaking of this action on his part, says that defendant in consideration was to do certain paving in front of his property and did not do it. At any rate, after a few days and before the garage and filling station was completed plaintiff changed his mind, replaced his gallery posts and gallery and not long afterwards instituted this suit. It is also unusual for a man to knowingly build a fence, so as to enclose the adjoining land of his neighbor, with the view of enlarging his limits beyond his established boundary and to follow up his enclosure in twelve years with a building as expensive as the evidence indicates defendant has erected, when, he knows all along that the ground enclosed and on which he is building belongs to his neighbor and not to himself. He never attempts to get a title from Charlie Joseph, the owner, but as soon as Charlie Joseph becomes hostile and starts legal procedings to recover the land, defendant seeks out M. S. Hatfield and T. L. Stokes, father and natural tutor of a minor child left by Mary Hatfield Stokes, his deceased wife, and wants to buy the strip of land from them. The conduct of the parties really amounts to nothing in this case. Plaintiff has not estopped himself by his forbearance when defendant enclosed the strip of ground, nor by his inactivity when defendant commenced to erect a building on it. Plaintiff is not estopped by his act in taking out his gallery posts and removing a part of the gallery of his restaurant building, for the reason that defendant has not been deceived nor misled by anything done by the plaintiff. • T'itle to real estate cannot be created so easily and quickly. Defendant thinks we should notice as bearing on the issue of title in the present case the fact that soon after defendant moved the limits of his possession, received from Phillips and Mrs. Toliver, and enclosed the strip of land involved in this suit, o: his own accord, the plaintiff bought the lot which adjoins defendant on the east and called -on him to move his fence west a corresponding distance. That defendant complied and now has under enclosure a frontage of hut ninety-eight feet. Defendant also thinks we should notice as having a hearing the testimony of a witness to the effect that if the limits and locations of plaintiff’s and defendant's lots, the plaintiff under Farbe and the defendant under Mrs. Toliver, are fixed according to their respective titles that same will now interfere with other contiguous and adjoining lots, squares and streets in palmetto. There is nothing in the record that indicates such a result; but suppose such were the case. As stated already, at the time defendant’s lot and plaintiff’s adjoining lot were sold and definitely located by the Hatfields, owners of the tract of land of which they formed a part, there were no other lots, no streets nor squares. And furthermore neither party claims under boundaries fixed by a boundary survey, made in the manner and fqrm prescribed by law.

The plaintiff, in answer to defendant’s appeal, prays that the amount allowed him in the lower court for the use of his ground be increased. We are satisfied that the judgment appealed from is correct as rendered. Judgment affirmed. Defendant and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 2936
    First Circuit
    CERAMI v. DAIGLE
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)
    1.Louisiana Digest — Pleading—Par. 76,77.
    Amendments to pleadings are favored by jurisprudence when they tend to bring a litigation to an end and at the same time accomplish justice, based on the existing situation.
    2. Louisiana Digest — Landlord and Tenant — Par. 96.
    Under the Code of Practice, Article 235, No. 2, and Article 286, a provisional . seizure is authorized only for rent. Therefore, a provisional seizure for damages' to the leased premises is not the proper remedy and illegal.
    3. Louisiana Digest — Landlord and Tern ant — Par. 102.
    Damages for dissolution for an illegal provisional seizure will be allowed only where proven.
    4. Louisiana Digest — Landlord and Tenant — Par. 41, 64.
    Where the preponderance of evidence is to,the effect that all old material that could be used was used in reconstructing a building the damages claimed by plaintiff for this work not being excessive will be allowed.
    6. Louisiana Digest — Landlord and Tenant — Par. 74.
    The landlord can recover from the former tenant the value of rent for the premises during the unexpired term of the " lease while he is reconstructing it on account of changes made by the tenant if the tenant refuses to restore premises to its former condition in accordance with the condition of the lease.
    5. Louisiana Digest — Landlord and Tenant — Par. 41, 64.
    Where tenant fails to put’ premises of landlord in same condition as they were at beginning of lease the landlord can recover as damages, the cost of reconstruction.
    Appeal from the District Court, Parish of Iberville. Hon. William C. Carruth, Judge.
    Action by Mrs. Annie Cerami against G. A. Daigle.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Laycock, Borron & Laycock, of Baton Rouge, and Schwing, Morrison, Schwing & Obier, of Plaquemine, attorneys for plaintiff, appellee.
    Dupont & Dupont, of Plaquemine, and Benton & Benton, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit to recover rent, also sum expended in restoring a building to the condition it was in at the time it was delivered to a lessee under a contract of lease and to also recover on account of the loss of the use of the property while the work of restoration was being done.

Mrs. Annie Cerami brought suit against G. A. Daigle to recover of him $240.00 as rent, $1308.68 as having been expended by her in restoring a building to the condition it was in at the time it was delivered to him as lessee and $100.00 as reimbursement for loss of rent while the work of restoring the building to its former condition was being done. The suit was filed April 6, 1923, and was accompanied by a writ of provisional seizure. The writ and sheriff’s return are not in the record, but the issues in the case do not depend thereon; consequently their absence is not important to the examination and decision of the case.

The plaintiff alleges in her petition that the movables of the lessee, situated on the leased premises are pledged to her as a matter of law and that she has a privilege thereon for the payment of the rent and other obligations of the lease. That said Daigle had vacated the property about six months before the expiration of the lease and at the same time moved out of the building some of his effects for the purpose of defeating her privilege and rights as pledges and that she feared and believed he would remove the balance and in that way defeat her rights. That said Daigle had, availing himself of a right to that effect given in the contract of lease, made numerous changes in the building and had damaged it to a considerable extent. That it would require the full unexpired period of the lease to restore the building to the. condition it was in at the time it was delivered to the lessee and that the work of restoration was estimated to cost $1750.00. That said Daigle was bound by the contract of lease to restore the building at the end of the lease, to the same shape it was in when he received it, unless agreed on differently' at the time. The contract of lease was annexed to and made part of her petition. She prayed for recognition of her rights as pledgee, with privilege on the effects in the building, as well as on those moved out, for judgment against defendant for $250.00 on account of rent and compelling him to restore the building to the condition it was in at the time it was delivered to him, else pay her whatever sum the court found such restoration would cost. Defendant excepted to this (petition on the ground that it set forth no right or cause of action, which was overruled.

On October 4, 1924, plaintiff amended and supplemented her petition. She alleges in this amended and supplemental petition that defendant had not been excused from his contract to restore the building to the condition it was in at the time it was delivered to him and that he had defaulted in his undertaking to do so. That not having been able to have the work done by defendant, she had been compelled to do it herself at an expense of $1308.68, making an account showing the changes made in the building and the cost of restoration part of her petition. She further alleged that the building could not be used, while the work of restoration was going on and that she had suffered loss in rents to the extent of $100.00 on that account. She prayed in this petition that her pledge and privilege be recognized as prayed for in her original petition, but prayed that she have judgment against defendant for $1308.68, as expended in restoring the property to the condition it was in at the time of the lease ^.nd for $100.00 in addition as reimbursement on account of loss of rent after the expiration of the lease and before the restoration could be accomplished, a total of $1468.68 with interest.

Defendant excepted to plaintiff’s amended petition of October 4, 1924, on the ground that it was an attempt to do what the court had refused to permit by an amended petition which she had filed on October 18, 1923. That the amended petition of 1923 had been objected to by him on the ground that plaintiff was thereby attempting to set up a cause of action based on facts happening after the inception of the suit and over six months after the original petition had been filed. That his said exception to the amendment of October 18, 1923, had been sustained and the amended petition excluded. That the ruling excluding same constituted res adjudicata as to the amendment of October 4, 1924. This exception was overruled and defendant then answered, admitting the lease but denying that he had defaulted on the question of restoration. He alleges that about six months before the expiration of the lease, he sold his bakery business conducted in the building to John O. Dupuy, sublet the property to him and moved out of the same in order to give him possession. That plaintiff consented at the expiration of the lease for said Dupuy to remain in the property. That he had always been willing and ready to restore the building to its former condition. That he could not do the work while Dupuy occupied the building but as soon as he moved out he proceeded to do the work and would have done it, but plaintiff would not permit him to enter the building and prevented him from doing the work. That had he been permitted to do the work it could and would have been done for not over $320.00. That the provisional' seizure was made maliciously. That it was illegal and had damaged him to the extent of $2950.00. He prayed that plaim tiff’s demand against him be rejected and for judgment in reconvention against her for the sum stated.

The District Judge rendered judgment in favor of the plaintiff for $1308.68 with interest, as the sum she had expended in restoring the property to the shape it was in at the time of the lease and for $40.00 with interest as reimbursement for loss of rent, after the expiration of the lease and before the restoration could be made. Defendant’s demand against the plaintiff was rejected. The provisional seizure that had been made was not mentioned in the judgment. Defendant appealed and urges on his appeal that his exception to plaintiff’s original petition should have been sustained. The petition alleges a grievance against defendant, based on the contract of lease under the law. Civil Code, Articles 3218, 3219 and 2709. The court could have granted her a judgment under her petition against the defendant upon proper proof. The exception of no right or cause of action was therefore properly overruled. He also urges on appeal that his exception to plaintiff’s amended and supplemental petition of October 4, 1924, should have been sustained. The minutes of the court show that the amended petition of October 18, 1923, was rejected on the ground that .it set forth no cause of action, which had not been urged against it, but supposing that its rejection was really based on the grounds' urged against it, such an exception was not a good ground of objection to the amended petition of October 4, 1924. The amendment of October 4, 1924, was biased on grounds taken place but proper, due to changes in situation since the original petition had been filed and supplied averments entirely different from those contained in the amendment of October 18, 1923. Amendments are favored by jurisprudence when they tend to bring a litigation to an end and at the same time accomplish justice, based on the existing situation. This amendment was in our opinion properly permitted. Defendant urges' that plaintiff agreed for Mr. Dupuy to remain in the building after the lease had expired and that he could not enter the building for the purpose of restoring it to its former condition on that account until Mr. Dupuy had' moved out of it. Mr. Dupuy occupied the premises about sixteen or seventeen days after the expiration of the lease. He did not remain in it as lessee under the plaintiff; he sought to get an extension of time; but she refused to enter into any arrangement with him. He went into the building under Mr. Daigle. He bought out Mr. Daigle about six months before the expiration of Mr. Daigle’s lease and sub let the property from him for that time. He could not conveniently move at the expiration of the lease so Ire just held it over until he could move more conveniently. Plaintiff did not take any steps to eject him at the expiration of the lease and tacitly permitted him to remain in the building until he moved of his own accord. We have considered the circumstances and do not think plaintiff’s failure to take out ejectment proceedings against Mr. Dupuy immediately at the expiration of the lease changes the situation in any way. Under the law and the contract, which was also in effect a law, Mr. Daigle should have restored the property to the condition it was in at the time he received it, while his lease was in force and effect. He did not do that and made no effort to that end until after Mr. Dupuy had moved out of it. He had no right to enter the building at that time; it was then too late to undertake the work of restoration. C. C., Art. 1933, No. 1; Payne vs. James, 42 La. Ann. 230, 7 South. 457; Chattanooga Car & Foundry Co. vs. Lefebvre, 113 La. 487, 37 South. 38. Defendant placed it in the power of the plaintiff to do the work of restoration herself at his expense. The important question in the case is how much should she recover on that account. She did some work which better fitted • the building for her needs when she returned to it, which was not a restoration to its former shape and there was some old material which defendant urges was not used and that same should have been done. We have considered the evidence on this subject. It is not as clear as might be, yet it is plain that the work done, which was not in restoration was very little and unimportant and the preponderance and we think the most trustworthy evidence is to the effect that all old material was used that was fit to be used in the work. We think the amount found by the district judge is justified by the evidence, not only on acount of the restoration but also on account of loss of rent while the work was being done. The defendant urges that the writ of provisional seizure was wrongfully issued and that it was illegal and claims damages on that acount. He did not move to dissolve the seizure on the ground that the affidavit therefor was untrue. He only placed plaintiff’s right to the writ at issue in his answer and that question was tried as part of the merits of the case. The evidence shows that he actually moved some of his effects out of the building and placed them in the residence of another party, about six months previous to the expiration of the lease. The contract of lease stipulates, “It is further agreed that the contents of the shoip and premises shall always be and remain subject to the lessor’s privilege for the non payment of rent.” Then again the law, C. C., Art. 2705, provides, “The lessor has for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee which are found on the property leased.” See also C. C., Art. 2709, and C. P., Art. 288, as to articles moved out of the house. When defendant moved part of his effects out of the house, without plaintiff’s consent; he gave her reasonable grounds to fear and believe that if she did not seize the effects within fifteen days that her rights as pledgee would be lost. The re-' moval was in violation of the agreement above mentioned. The fact that he had made a contract with Mr. Dupuy which required him to move out and turn the house over to him did not alter the situation as regards the plaintiff, who was not a party to his arrangement with Mr. Dupuy. The fact that Mr. Dupuy paid the rent after he had sublet the property as required by the contract between the plaintiff and defendant did not alter the situation. We think the plaintiff had a right to resort to a provisional seizure as to the rent to become due for the unexpired portion of the lease, and to have it executed against defendant’s effects moved as well as those not moved. But to the extent that the writ was obtained against defendant on acount of his obligation to restore the property to the condition it was in at the time he received it at the expiration of the lease, we find that it was illegal. The Code of Practice, Art. 285, No. 2, and Art. 286, does not authorize a provisional seizure except for rent. The district judge did not think that the provisional seizure could be sustained except for rent. The evidence on -the subject of damages, however, does not indicate that defendant sustained any appreciable damage on account of the seizure beyond the sum for which it was justified. His demand for damage was therefore properly refused, but the fact that a seizure was made, based in part on a ground of action for which a writ of provisional seizure was not the proper remedy, is our reason for apportioning the cost in the lower court between the parties. For these reasons the judgment appealed from is affirmed. Defendant and appellant to pay the cost of appeal and one-half of the cost in the lower court, the other half to be paid by plaintiff and appellee.


author: MOUTON, J.

text:
    No. -
    First Circuit
    MUNSON v. WILSON
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 340.
    Testimony of the plaintiff that he did not enter into an agreement' with the defendant which is corroborated by circumstances will be taken as true.,
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact where clearly correct are affirmed.
    Appeal from the Parish of Bast Feliciana. Hon. Charles Kilbourn, District Judge.
    Action by H. T. Munson against Jim Wilson.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    George J. WoQdside, of Clinton, attorney for plaintiff, appellee.
    H. H. Kilbourne, of Clinton, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff, a merchant, sues defendant for $202.00 for an alleged load and $2.00, the price of an axe.

The amount charged for the axe it not disputed.

The defense is in substance that defendant was to get an option for $200.00 on a tract of land from Mrs. E. T. Pond, in his individual name, that plaintiff and defendant were to each furnish one hundred dollars for the option, with the understanding that plaintiff was to get one-half the property, and defendant the other half.

The contention of the defendant is therefore that the $100.00 claimed by plaintiff was not a loan to him, but was to be used in a common venture for their joint benefit.

Due to a fall in the price of cotton defendant was unable to raise the amount necessary to take up the option, and says he so informed plaintiff, advising him that he could avail himself of the opportunity to take the property if he so desired. Plaintiff, instead qf acceding to this proposition, claimed that he had not entered into any agreement to buy the property with defendant' but had loaned him the $100.00 to secure the option for defendant, personally. Plaintiff testifies that he loaned defendant the amount, and charged it at the time of the loan on his account. If it had been handed to defendant for an investment for the joint purchase of real estate, it is not likely it would' have appeared on the acount as an item against defendant. Plaintiff frankly admits that he wanted a portion of the property, which adjoined a property that he. owns. He says the agreement was that defendant, after making the purchase, was to sell him the portion he needed. The proof shows that the tract consisted of about 240 acres of land. Plaintiff says he wanted about 75 or 80 acres of the place. It is not fair to presume that he would have entered into a contract with defendant, furnishing half of the option money, to take one-half of a 240-acre tract, when he needed or desired only 75 or 80 acres of it. This circumstance does hot conclusively show that he could not have made such an agreement, but the reasonable inference is that he did not enter into it. That circumstance, though not furnishing absolute proof, has, at least the effect of corroborating the testimony of the plaintiff that the option had not been intended for a joint acquisition of the land; that he had loaned the $10.00 for which defendant was properly charged on the account. Evidently, the trial .judge did not believe the contention by defendant that the option had been taken as a common venture between him and plaintiff. He believed the version of the agreement as testified to by plaintiff in which we are unable to detect any reversible error.

Judgment affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    BANK OF ST. MARTINVILLE v. DUCHAMP
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Bills and Notes — Par. 83.
    Under Section 184 of the Negotiable Instruments Act No. 64 of 1914, a note made to the maker’s order but not indorsed by him is not complete and no liability arises thereunder.
    Appeal from the Parish of St. Martin. Hon. James D. Simon, Judge.
    Action by Bank of St. Martinville against D. E. Duchamp et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Martin & Martin, of St. Martinville, attorneys for plaintiff, appellant.
    Voorheis & Labbe, of St. Martinville, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff as holder of a promissory note dated September 24, 1923, due September 24, 1924, worded as follows: "I promise to pay to the order of myself, etc.,” signed by D. E. Duchamp and Louis Duchamp, ques the heirs of Louis Duchamp, whom it alleges and treats as an endorser of the note.

The present suit was filed May 7, 1926. Louis Duchamp died November 24, 1924, his heirs accepted his succession unconditionally and their liability, if any, is the same as their ancestor’s would be if he were still living, save that they may have been realeased by prescription, the interruption of which could not be proved against them by parol evidence.

Plaintiff’s suit was dismissed as to one of the heirs of Louis Duchamp, who is an absentee, for want of , jurisdiction. Though that decree was appealed from, no return day is fixed in the order of appeal, and we find no bond of appeal, and we therefore assume that such appeal was abandoned.

Plaintiff’s demand as to the other heirs of Louis Duchamp was rejected on its merits, and plaintiff now prosecutes an appeal from that judgment.

On this appeal the only question to be decided is the liability vel non of the heirs of Louis Duchamp, who are present in this State, which may result from the signature of their ancestor on the note in suit.

The note is subscribed by D. E. Duchamp and by Lduis Duchamp, payable “to the order of myself.” That makes it a solidary obligation, but it is not endorsed by Louis Duchamp. It is only endorsed in blank by D.. E. Duchamp.

. According to Section 184 of the Negotiable Instrument Act, No. 64, p. 147 of 1904, “where a note is drawn to the maker’s own order, it is not complete until endorsed by him.” When, therefore, the law in specific terms, declares that a note is incomplete, it is only logical to hold that it is no note at all, and that no liability can arise thereunder.

Plaintiff, no doubt surmising the effect of the quoted language of Section 184 of the Negotiable Instrument Act, has taken the position that Louis Duchamp should be held as an endorser. Paragraph 6 of Section 17 of the same act says, that “where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an endorser.” But an examination of the present note, clearly indicated that Louis Duchamp intended to sign as maker and therefore there is no reason to attribute ambiguity where ambiguity does not' exist.

Besides these insurmountable obstacles to plaintiff’s recovery, plaintiff has neither alleged nor proved demand and notice of dishqnor.

Believing that the judgment appealed from is correct, it should be affirmed and,

It is so ordered.


text:
    No. -
    First Circuit
    FALTERMAN v. PRESTENBACH
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Judgment—Par. 13. A judgment must be certain. Therefore, where a judgment for money fails to state the amount for which the judgment is given the case will be remanded to enable the trial judge to enter the precise amount in his decree.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by Joseph Falterman against Sidney Prestenbach.
    There was judgment for plaintiff and defendant appealed.
    Case remanded for trial judge to enter certain and precise language in .the decree.
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    Walter T. Gilmore, of Morgan City, attorney for defendant, appellant.
   LECHE, J.

The decree or judgment which has been appealed to this court reads as follows:

“For the above reasons it is therefore ordered, adjudged and decreed that there be judgment in favor of plaintiff and against defendant as prayed for. All costs to be paid by defendant.”

The demand in suit is for a moneyed judgment. The amount prayed for is of course set forth in plaintiff’s petition, and the question raised by defendant on this appeal is whether the judgment on its face is not invalid for being vague and uncertain.

There are certain elementary rules with regard to the form of judgments which are now well recognized ih our jurisprudence. A judgment must be certain and as appropriately said in the case of Kean vs. Fisher, 10 La. Ann. 261, “reasons for judgment, strictly speaking, form no part of the judgment itself, although they may with propriety, be consulted to explain an ambiguity.” It has often been held that reasons for judgment form no part of tbe judgment. Davidson vs. Carroll, 23 La. Ann. 108; Chaffe & Bro. vs. Morgan, 30 La. Ann. 1307; Rivers vs. Oaklawn Sugar Company, 105 La. 783, 30 South. 160; Edenborn vs. Blacksher, 148 La. 307, 86 South. 817; Watkins vs. Watkins, 148 La. 730, 87 South. 726.

Although reasons for judgment may be consulted to explain an ambiguity, it must be observed that in this case there is more than ambiguity. The decree is silent as to the amount which plaintiff is entitled to recover.

The decree alone indicates the decision. Fuselier vs. Babineau, 14 La. Ann. 764. A judgment must be certain and precise. Russo vs. Fidelity & Deposit Co., 129 La. 555, 56 South. 506; Fontelieu vs. Fontelieu, 116 La. 881, 41 South 120. In the latter case, the court quotes with approval, the following words from Black on Judgments, Vol. 1, paragraph 3: “But we may say in general that if a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it, with certainty and precision.”

At common law, the rule is stated in 15 R. C. L. at page 593, to be that, “every judgment must be certain and definite as to its amount.”

The only decision we have found in our jurisprudence which seems not to be in accord with the latter jurisprudence was rendered in 1816, before the adoption of the present Civil Code and Code of Practice. See Decker vs. Bradford, 4 M. 312. In that case the amount claimed was not disputed, but special facts were set up in avoidance, and the court held that a decree to the effect that “plaintiff must recover the sum due” was sufficient.

We believe that the decree in the present case is fatally defective and for that reason, that there is really no judgment in the case.

It is therefore ordered that this case be remanded so as to enable the trial judge to enter, in certain and precise language, such decree as may be warranted in his judicial discretion, costs of this appeal to be paid by plaintiff and appellee, and all other costs to await final determination of the suit.


text:
    No. -
    First Circuit
    CLARKE v. BANDELIN
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 126, 128.
    Under Constitution of 1921, Article VII, Section 10, the Court of Appeal has no juridiction of suits for damages in excess of $2,000, suits for damages for physical injuries excepted.
    2. Louisiana Digest — Courts—Par. 164.
    Where the case is appealed to the Court of Appeal and the record shows the Supreme Court to have jurisdiction it will be transferred to the Supreme Court.
    (See Act 19 of 1912. — Editor’s Note.)
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action, by George Clarke against Edmund Bandelin.
    There was judgment for defendant and plaintiff appealed.
    Case transferred to Supreme Court.
    A. S. Burns, of Ponchatoula, attorney for plaintiff, appellant. .
    Amos L. Ponder, of Amite, attorney for defendant, appellee.
   MOUTON, J.

This suit is for a demand in damages for an alleged malicious prosecution. It is alleged that plaintiff suffere_d damages in the amount of two thousand sixty-five dollars, and judgment is asked against defendant for that sum.

This suit is not in damages for personal injuries. As the amount of damages claimed exceed two thousand dollars exclusive of interest, we have no appellate jurisdiction. Const. 1921, Art. 7, Sec. 10.

This case must be transferred to the Supreme Court.

It is therefore ordered that this case be transferred to the Supreme Court provided that appellant files the record in that court within thirty days of the finality of this decree.


text:
    No. -
    First Circuit
    FREDERICK v. VAUTRAIN
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62— Sales — Par. 23.
    Under Article 2440 of the Civil Code an exception no cause of action is properly sustained to a petition and answer to prayer for oyer which admits that the agreement to buy real estate was oral and not written.
    Appeal from St. Tammany Parish. Hon. Prentiss Carter, District Judge.
    Action by C. Sidney Frederick against Henry Vautrain.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Millér & Heintz, of Coving ton, attorneys for plaintiff, appellant.
    A. D. Schwartz and Harvey E. Ellis, of Covington, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that in July, 1925, he agreed with defendant to purchase a tract of land in Mandeville for $1800.00, on such terms as might be agreed upon; that accordingly defendant obtained a written agreement from Mrs. George Reine to sell the land for $1800,00, one-half cash, the balance in one year, and as part of the consideration he paid Mrs. Reine $180.00 on the purchase price.

Plaintiff then alleges: “That, such written agreement was taken in the name of said Henry Vautrain, but was for the joint and equal benefit of said Vautrain and petitioner, under the agreement made by them to purchase said property.” From the foregoing allegations . it is clear that plaintiff is claiming that defendant’s agreement with him was to purchase the land jointly for them and for their ' equal benefit. In these allegations, however, the only discordant note is that Vautrain took the written agreement to sell from Mrs. Reine, in his name alone. Further, plaintiff alleges that defendant had notified him of the payment he had made of $180.00 as part consideraton on the promise of sale from Mrs. Reine; that he expressed his willingness to Vautrain to pay his share thereof which defendant refused to accept, and that the defendant contends plaintiff has no interest in the contract to purchase the property, “or in such property.” Here again we have a distinct allegation from plaintiff that he has an interest in the agreement to sell from Mrs. Reine, or in the property itself.

Again plaintiff alleges that in May, 1926, defendant, Vautrain, fraudulently, “and for the purpose of depriving petitioner of his rights in said property and in the contract to purchase same,” entered into a written ’agreement to sell the property to T. J. Foerster, and others, for $3500.00. What were the rights to which plaintiff refers in the above quotation, if they were not those of ownership he was asserting in the property, and of which he alleges defendant was wrongfully attempting to thus deprive him? Such is evidently the plain meaning of the allegation in the above quotation, particularly is it so when it is considered with the preceding averments of the petition.

As a logical sequence of the prior allegations, plaintiff then avers that he is entitled to one-half the profits to be realized from the sale of the property to T. J. Foerster by Vautrain.

In connection with his demand for a share in thSse profits, plaintiff also claims $2100.00 against defendant. The claim of $2100.00 is manifestly beyond our appellate jurisdiction, but which we will pass over without consideration, as there is no basis for this claim under the averments of the demand that are altogether directed to the profits of which plaintiff contends he has been unjustly deprived.

The defendant first filed an exception requiring, before answering, that plaintiff state whether his alleged contract with defendant to purchase the tract of land as set forth in his petition, was oral or in writing, and if in writing, that the defendant have oyer of the document.

In response to this exception, defendant admitted of record, that his contract with plaintiff, is an oral agreement or contract. An exception of no cause or right of action was then filed by defendant which was sustained, and the suit was dismissed.

Plaintiff appeals.

Defendant cites Article, Civil Code, 2440, which says that every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted. He refers to Article, C. C., 2275, which permits verbal proof of the sale of an immovable, when the vendor or vendee confesses it when interrogated under oath. There was no attempt made in the instant case to establish the title contended for by plaintiff by interrogating defendant, and the exception provided for in Article 2275 has no connection with the issue presented.

It clearly appears from the allegations of plaintiff’s petition that defendant had in violation of the alleged agreement placed the property in his own name,' had refused to aeept from plaintiff his share of the consideration of $180.00 defendant had paid' to Mrs. Reine, and contended as alleged that plaintiff had no interest in the promise of sale from Mrs. Reine, or in the property; that to deprive plaintiff of his alleged right in the property, or in the contract to purchase it, defendant had entered into an agreement to sell it. Those allegations clearly presented claims of part ownership in the property by plaintiff and of the wrongful violation of these rights by defendant. The establishment of such rights would be impossible without involving the issue of title or ownership of the property. Plaintiff admitted in the record that his agreement with defendant was oral or verbal. It is therefore only -by that character of evidence that he could establish his rights of ownership in the land, which the law says can be shown only in writing.

Counsel for defendant says the agreement was merely a joint adventure for the purchase of the land. They say, plaintiff is not asking to be recogniz.ed as the owner, or part owner of the land, but that under the contract defendant was simply to buy the land with a view of sharing the profits with plaintiff.

It would seem from that contention that plaintiff claims that he is suing for the alleged profits only, and the title or ownership of the property is not involved in the contest. The trouble is, how would it be possible for plaintiff to show that he was entitled to one-half the profits, unless it was proved by him that he was half owner of the land? Before he could reach the profits .it would be- incumbent upon him to prove his quantum of interest in the property. As he confessedly admits he -has no written evidence to establish that fact he would be relegated exclusively to testimonial proof which is altogether inadmissible for such a purpose.

In another part of .their brief counsel for plaintiff say: “No verbal agreement with the owner of the real estate is alleged.” This is true as plaintiff alleges that the agreement to buy from Mrs. Reine by defendant was in writing. Counsel then continue and say: “That agreement was in writing, entered into by the defendant with the owner, in "his own name, for the benefit, it is charged of himself and the plaintiff.” It is plainly contended here that although defendant entered into the writing in his own name, it was in reality for the benefit of himself and the plaintiff. How could plaintiff establish the charge which is here levelled against defendant? In no other way, that we can see, except by proving by parol that he had, in violation of his agreement, taken the title in his individual name for the purpose of personally disposing of the property, and to thus deprive plaintiff of his share of the profits which which were to flow from his joint ownership.

Testimonial proof to show an oral agreement to buy real estate is inadmissible. Written evidence is required , to, establish such rights, and as plaintiff has no proof .of that character the exception dismissing his suit .was properly maintained.


text:
    No. -
    First Circuit
    FRITZ v. NOLAN
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 160.
    A letter written eight months after signing the contract at a time that the purchaser knew how the contract was executed sending' part payment on account but not complaining, shows that the purchaser was satisfied with the contract and did not, by this letter, offer the part payment as full settlement.
    Appeal from the Parish of East Baton Rouge. Hon. Wm, Caruth Jones, Judge.
    Action by Edward H. Fritz against C. J. Nolan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wm. G. Randolph, of Baton Rouge, attorney for plaintiff, appellee.
    Jess Johnson, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Plaintiff prays for judgment against defendant in the sum of one hundred forty-two and 83-100 dollars ($142.83) alleged to. be the balance due on a contract, under which he furnished defendant with advertising matter during one year, beginning April 10, 1925. The advertising matter consisted of cuts and metal plates mounted on wooden bases at an agreed price of one and 75-100 dollars each, aggregating during the year one hundred eighty-nine and 11-100 dollars, of which amount defendant paid to plaintiff on December 7, 1925, the sum of $46.28, leaving due the aforesaid balance of $142.83.

The defense in brief, is that defendant was induced through the false and fraudulent representations of plaintiff’s agent to sign an order for the alleged advertising matter; that the cuts furnished did not, when printed in the local papers in which defendant did his advertising, produce the same kind of work as the samples shown to him by plaintiff’s agent; that defendant had given notice to plaintiff to discontinue the service; that defendant did pay plaintiff $46.28, but that he did so with a view to avoid a law suit, and in the hope that plaintiff would accept the same in settlement.

The District Court rendered judgment for plaintiff as prayed for and defendant has appealed.

The samples shown by plaintiff’s representative and solicitor consisted of impressions printed on heavy glazed paper from plates similar to those furnished to defendant. They appeared clear in detail, and almost as clean cut as steel engravings, while the impressions produced by the same plates on ordinary printing paper such as is almost universally used by newspapers appeared somewhat blurred and indistinct in detail. This, no doubt, is what disappointed defendant and caused him to conclude after he saw his advertisement in the local paper that he had been misled, and wrongfully induced into signing a fraudulent contract.

It does not appear from the record, when defendant began to use the plates furnished to him by plaintiff. The contract was signed on April 10, 1925, and eight months later, on December 7, 1925, at a time when he must have had full knowledge of the matters of which he now complains, a letter was written by him to plaintiff, enclosing a check for $46.28, and not a word of complaint is therein contained. Here are the full contents of the letter:

“Gentlemen: Enclosed please find check for $46.28 to apply on our account. We desire this service discontinued at the expiration of our contract with you. Yours truly, etc.”

We find no evidence to sustain the defense that the service had been ordered discontinued, and the language of the letter refutes the defense that the $46.28 was offered as a compromise, for a settlement in full.

Defendant evidently realized too late that he had made an unprofitable agreement and we find no ground to relieve him from the result of his own mistake.

The judgment appealed from is therefore affirmed.


text:
    No. -
    First Circuit
    AUBERT v. THIBODEAUX BENEVOLENT ASSN.
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Associations—Par. 3, 4, 21. Insurance — Par. 72.
    Representations in an application for membership in a benevolent association that one is a white .person when he is colored and that his daughter be made beneficiary when she is merely adopted without judicial sanction are sufficient misrepresentations to void the beneficiary certificate and cancel •the membership.
    Appeal from the Parish of Lafourche. Hon. R. B. Butler, Judge.
    Action by Ida Aubert against Thibodeaux Benevolent Association.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Harris Gagne, of Houma, attorney for plaintiff, appellant.
    Howell, Wortham & Howell, of Thibodeaux, attorneys for defendant, appellee.
   LECHE, J.

Defendant, as its name indicates is an incorporated benevolent association domiciled in the Parish of Lafourche. Its purpose is to furnish pecuniary protection “to the loved ones” of its members after the death of such members, and with that object in view, it issues benefit certificates in the sum of one thousand dollars.

The present suit is upon a check for one thousand dollars issued in payment of a benefit certificate, payment of which was, upon instructions of the association, withheld by the bank, upon which it was drawn.

Defendant association is composed entirely of white persons of the Caucasian race, while plaintiff, beneficiary, as well as her late benefactor, are admittedly of the negro race. That fact was only discovered by the defendant association after the check in payment of the benefit certificate had been issued, and that is why its payment was stopped.

The benefit certificate was issued to one Scott Brooks, who was admitted a member of the association in November, 1923, and who- designated plaintiff, said by him to be his daughter, as beneficiary. In his application for membership, Brooks declared as follows: “I am a white person of. good moral character, etc.”, and he expressly named Ida Aubert, whom he represented to be his daughter, as beneficiary. This declaration was admitted by plaintiff, as a witness, to be false, and plaintiff further admitted that she was not really the daughter of Brooks, but his daughter adopted without judicial or written contractual sanction.

The legal question involved is whether these misrepresentations are sufficient to void the benefit certificate. To any trib.unal of justice familiar with social conditions and the customs of the white people in the Southern States of this country, there can be no doubt that this is sufficient cause to vitiate the contract. If Brooks had declared in his application for membership that he was of the colored or negro race it is equally certain that he never would have been admitted to membership in defendant association.

The trial judge so found and his judgment is affirmed.


text:
    No. 1094
    First Circuit
    T. A. D. CO. v. SUARAGE
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 86, 101 — Sales—Par. 49.
    Where an order for .merchandise contains a stipulation of an additional delivery to be made of different merchandise free, the free merchandise was part of the consideration which the purchaser was to receive for his money.
    2. Louisiana Digest — Obligations—Par. 124, 164, — Sales—Par. 79, 80.
    One who purchased cards to which shipment were to be added coasters, and bargain bulletins does not have to accept delivery of the cards without the coasters and bargain bulletins which were sent express C. O. D. for the full balance due on the contract.
    Appeal from the District Court Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by T. A. D. Company against H. N. Suarage.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Justin C. Daspit, of Baton Rouge, attorney for plaintiff, appellee.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit on written order for advertising cards, bulletin service and merchandise.

H. N. Suarage, proprietor of Baton Rouge Coffee Mills, signed an order in favor of the plaintiff which commences, “Please furnish us the complete T. A. D. Service, as outlined below and have printed for us 100,000 T. A. D. Advertising Cards, for all of which we agree to pay $300.00, less the amount of deposit herewith.

“It is a condition of this' order — ” Then follows stipulations, one of which is , that T. A. D. agrees to make a refund of $4.00 per thousand for cards returned on purchase of merchandise and is- to supply T. A. D. Bargain Bulletins free of charge as long as the party ordering continues the active use of the cards, and is to mail T. A. D. Bargain Bulletins free of cost to list of customers furnished by party ordering.

The other is that T. A. D. is to supply T. A. D. Bargains to customers sending in the required number of cards and money on the terms shown on T. A. D. Bargain Bulletins and to guárante said merchandise to be satisfactory to customers or refund their money and all transportation charges.

Omitting a printed notice, then further on down the order continues: “Send free the following merchandise. No free merchandise given with orders for less than 10,000 cards. T. A. D. reserves the right to substitute, if necessary, other merchandise of equal value. Free merchandise is not to exceed 10 per cent of the total cost of this order. ‘9 S. T. 16 Coasters.’ ”

The order concludes with the statement that it has been read and understood. That no terms or representations, except as contained herein will be recognized by T. A. D. and it is understood that this order cannot be cancelled by the party giving it.

The defendant, answering, pleaded prematurity, and that being referred to the merits, further answered that plaintiff had not complied with the contract on its part. That the contract provided for certain merchandise and that the plaintiff had never shipped nor offered to ship the 9 coasters, which it agreed to do under the order. That the contract was unilateral, etc. The trial judge rendered judgment in favor of the plaintiff as prayed for and defendant appealed.

The pleadings and the evidence show that $100.00 was paid in cash at the time the order was signed representing $1.00 per thousand for the cards. That the plaintiff shipped the 100,000 cards by express on December 5, 1925, C. O. D. to the extent of $200.00, the balance due under the order. But the Bargain Bulletins and the 9 S. T. 16 Coasters were not included in the shipment. Defendant refused to pay the $200.00 and take out the cards, and on December 12, 1925, telegraphed (plaintiff, cancelling the order, that it was too late to open campaign, etc. On December 29, 1925, plaintiff directed the express agent to deliver the cards to defendant without the cash, but defendant still refused to take them. The express company, after due delay, destroyed the cards. The plaintiff admits and the defendant declares that the merchandise for which the order provides was never shipped nor offered to be delivered. The plaintiff says it was not done because of plaintiff’s telegram of December 12, cancelling order. The order does not expressly say that everything therein provided for was to be shipped at the same time, yet as the plaintiff drew on the defendant for the entire balance due under the order, we think all the order, particularly the merchandise, should have been shipped with the cards, so that defendant would have had in hand, upon paying the entire balance due, all that he was to receive in consideration of the same. The merchandise is spoken of in' the order as free, but the order shows that it was part of the inducement and consideration which defendant was to receive for his money. We have considered plaintiff’s explanation but it is not satisfactory. The defendant was justified under the showing made in refusing to accept the cards, because if he had not done so he would have been liable for them without the coasters and bargain bulletins. He was not obliged to receive part of the order, lie can stand on the contract and demand all, or decline to receive any of the things ordered. Plaintiff’s demand should have been rejected. The judgment appealed from is therefore annulled, avoided and set aside, and plaintiff’s demand is now refused and rejected at its cost in both courts.


text:
    No. 804
    First Circuit
    CRAWFORD v. KENTWOOD
    (June 7, 1927. Oipinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Municipalities—Par. 57. — Office and Officers — Par. 50.
    Under Section 15, Act 136, of 1898, as amended by Act 231 of 1924, town councils have the right to “fix the compensation of all officers and employees,” which includes the town marshal.
    2. Louisiana Digest — Municipalities—Par. 57. — Office and Officers — Par. 50.
    The promulgation of resolutions of councils provided by Section 33 of Act 136 of 1898 has no application to the fixing of compensation of officers and employees.
    Appeal from the District Court, Parish of T'angipahoa. Hon. Columbus Reid, Judge.
    Action by J. S. Crawford against Town of Kentwood.
    There was judgment for defendant plaintiff appealed.
    Judgment reversed.
    A. L. Ponder, Sr., of Amite, attorney for (plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   ELLIOTT, J.

The town council of the town of Kentwood, reduced the salary of the town marshal. He sued the town to recover the amount which he claimed was due him.

J. S. Crawford, town marshal of Kent-wood, alleges that at the time he was elected, that the salary of the marshal was $95.00 per month. That the town council agreed to pay him the further sum of $15.00 a month for collecting water rents, making a total of $110.00. That the mayor and clerk of the town council signed a warrant in his favor for said amount for the month of October, 1925, but the town treasurer refused to pay him. He brought suit to recover the amount of the warrant.

The mayor appeared in his own proper person and for answer to plaintiff’s demand, admitted every article of his petition as true. But the town apeared through its council and set aside the answer of the mayor, as unauthorized and for answer on the part of the town alleged the reduction of (plaintiff’s salary from $95.00 to $65.00 a month; admitted that plaintiff was due. $15.00 for collecting water rents, but the demand of the plaintiff in excess of $65.00 on account of salary and $15.00 for collecting water rent, a total of $80.00, was not due. The case was submitted to the lower court on a statement of facts. The lower court,.acting thereon rejected plaintiff’s demand entirely. The plaintiff appealed.

The law, Act 136 of 1898, Section 15 (Amd. Act 231 of 1924), paragraph 15, gives the towns the right, “To prescribe the duties and fix the compensation of all officers and employees," etc. The statement of facts shows that the salary of the marshal was fixed in 1922 at $95.00 per month. This was in effect at the time plaintiff was elected. But the present town council by resolution adopted September 1, 1925, reduced his salary to $65.00 per month, effective October 1, 1925. The town council had the power to do that and having done so, plaintiff’s salary for October, 1925, was $65.00.

He contends that the resolution was not effective on October 1, 1925, for the reason that it does not appear to have been promulgated as required by Section 33 of the act. The statement of facts on which the case is before us, does not mention want of promulgation as a fact on which the court might act in deciding the case, and we cannot take cognizance of the matter, as if it had been passed by the State Legislature. Promulgation of such a resolution was not necessary and it matters not if it was not done. Section 33 of the act in question provides, “The ordinances to be so recorded are those which are in their nature laws of the municipalities and not mere orders or decrees, temporary in their nature.” The resolution in question is of temporary nature and promulgation was not necessary.

Plaintiff further contends that the reduction in effect deprives him of his office and that such a method of ousting him from office is not authorized by the law. The resolution cannot be looked on as so far reaching as that without evidence, to that effect.

The plaintiff’s demand should have been allowed to the extent of $80.00 with interest in conformity with defendant’s answer and the established facts. For these reasons the judgment appealed from is annulled, avoided and set aside and judgment is now rendered in favor of the plaintiff, J. S. Crawford, and against the town of Kentwood for $80.00 with legal interest thereon from November 1, 1925, until paid. Defendant and appellee to pay the cost in both courts.


text:
    No. -
    First Circuit
    SIADOUS v. THIBODEAUX
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.— Evidence — Par. 349.
    Where the judgment of the lower court is based on a question of veracity as between the plaintiff and defendant, it being unlikely that the plaintiff would have worked for the defendant for nothing, the' finding of the trial court being clearly correct is affirmed.
    2. Louisiana Digest — Prescription—Par. 89.
    Prescription of three years under Article 3538 of the Civil Code is applicable to salary of bookkeeper.
    Appeal from the Parish of Acadia. Hon. W. W. Bailey, Judge.
    Action by L. F. Siadous against Francois Thibodeaux.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      O. B. DeBellevue, of Crowley, attorney for plaintiff, appellee.
    Gremillion & Smith, of Crowley, attorneys for defendant, appellant.
   LECHE, J.

The claim in this suit is for services as bookkeeper for the calendar years 1919 to 1924, inclusive, at $50.00 per year. The defense is a denial of the agreement under which" the claim is made and a plea qf prescription of three years.

Defendant is a farmer near Duson in the Parish of Acadia and owns a good deal of land which is cultivated by some 18 or 20 families who work on the tenant system. He first came into business contact with plaintiff, who is cashier 'of the local bank, about the spring of 1918. Defendant is illiterate and received a good deal of assistance from plaintiff, who negotiated loans for him, advised him and kept records of his business transactions. About this time, March, 1918, plaintiff procured a small ledger for defendant who reimbursed him the price of the book, and plaintiff offered to keep defendant’s accounts with the tenants free of charge, in consideration of their friendship and of the fact that defendant was a good customer of the bank. This is admitted both by plaintiff and defendant.

About the latter part of the year 1918, plaintiff told defendant that the work involved in keeping these accounts had become very onerous and that he would continue to do the work provided defendant paid him fifty dollars per year. Plaintiff details the discussions about this new arrangement. ■ Defendant at first thought this charge should be borne by his tenants, but finally agreed that he would pay plaintiff the small remuneration asked for the service. Plaintiff then says that during the succeeding years he several times hinted to defendant that he would ■like to get his pay but that defendant always postponed a settlement. He finally made a direct demand and defendant refused to comply with the agreement. The present suit was. then filed in 1925.

Defendant denies that he ever agreed to pay plaintiff any salary whatever, though he admits that plaintiff did keep a record of his accounts. He claims that the services of plaintiff were rendered free, at plaintiff’s own suggestion. He called his son and other members of his family and an employee to prove plaintiff’s offer of free service. But all of these witnesses only know the offer made about March, 1918, a fact which is admitted by plaintiff.

In its final analysis the question is one of veracity between plaintiff and defendant as to the agreement made the latter part of 1918 or the beginning of 1919, for a salary of $50.00 per annum. The trial judge believed the testimony of plaintiff and no doubt considered it unlikely that plaintiff would have continued to do this work just for glory. We can discover no error in that' finding.

The plea of three years’ prescription as to the salary for the years 1919, 1920 and 1921 was properly maintained.

' For these reasons the judgment on appeal is affirmed.


text:
    No. -
    First Circuit
    SOUTHERN SURETY CO. v. MORGAN’S L. & T. R. R. & S. S. CO.
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Insurance—Par. 104.
    The insurer after paying the insured for injuries inflicted ip a railway accident has a right of action against the railway company.
    2. Louisiana Digest — Railroads—Par. 61, 62.
    Where a train of box cars is slowly backed over a crossing without making sufficient noise to attract the attention of one using the crossing the railway company is at fault for not better safeguarding the public.
    3. Louisiana Digest — Automobiles—Par. 6.
    One who rides as a guest or passenger in an automobile cannot be imputed with the negligence of the driver over whom he had no control.
    4. Louisiana Digest — Interest—Par. 25, 26. —Appeal—Par. 759.
    Interest should be allowing from judicial demand and where not so allowed, will be considered a clerical error and corrected as such.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by Southern Surety Company against Morgan’s L. & T. R. R. & S. S. Company.
    There was judgment for plaintiff and defendant -appealed.
    Judgment affirmed.
    Borah, Himel, Bloch & Borah, of Franklin, attorneys for plaintiff, appellee.
    Brumby & Bauer, of Franklin, attorneys . for defendant, appellant.
   LECHE, J.

On September 28, 1925, Frank J. Husband, an employee of the Gulf Crushing Company, was injured as a result of a collision between an automobile in which he was riding and a train of defendant company. Husband, at the time he was injured, was actually engaged in the performance of services arising out of and incidental to. his employment. He received as compensation for his injury, the sum of one hundred sixty-six and 83-100 dollars. This amount, as well as an additional sum of sixty-five dollars, was paid by the plaintiff under an insurance policy which it had issued to the Gulf Crushing Company. The present suit is for the recovery of this amount, viz: two hundred thirty-one and 83-100 dollars from defendant, on the ground that the accident in which Husband was injured was the result of the fault and the negligence of the defendant.

1. The first question at issue on this appeal is whether plaintiff has a right of action against defendant. That is answered in the decision of London Guarantee & Acc. Ins. Co. vs. Vicksburg, S. & P. R. Co., 153 La. 287, where the court held: “Insurer paying compensation under Act 20 of 1914 has right of action against third person responsible for the injury, etc.”

2. The next question is whether the accident resulted from the fault and negligence qf defendant.

Husband was an engineer in the employ of the Gulf Crushing Company, and at the time of the accident was assisting H. J. Boudreaux, a contractor, in repairing an engine belonging • to the Gulf Crushing Company. When the work was nearly completed, Boudreaux needed some shellac. to seal the gasket of a cylinder head and there being none on the ground, he asked Husband to go and get the needed shellac. This took place on the outskirts of the town of Morgan City, where the crushing company’s factory is situated. In order to save time, Boudreaux tendered the use of his Ford sedan to go into town at Shannon’s Hardware Store, where the shellac could be gotten. Husband was in the employ of the crushing company and although he was working under the instructions of Boudreaux, his labor was furnished and paid for by the crushing company, his employer, under the contract with Boudreaux. Boudreaux then got into his automobile with Husband and drove to Shannon’s store, where Husband got out and bought the shellac for account of the crushing company. On his return to the crushing company's plant, Boudreaux drove along First Street, the shortest and probably the only way to get back to the plant, and the collision took place at a point where that street is crossed by double switch tracks of the defendant company.

First Street runs approximately north and south and the defendant’s tracks are laid diagonally across, approximately northwest and southeast. Boudreaux was driving south. On his left along the gutter, and north of the near track and adjacent to it, there is a growth of small trees and shrubs, and on the north track was a string of box cars extending several feet into the street, so that Boudreaux’s view to the left, the direction from which the train was coming, was completely obstructed. The train consisted of a locomotive and tender and four tank cars, two of them loaded and the other two empty. Boudreaux was driving slow and when he reached the first or nearest track, had to shift gears, steer to the right, his right wheels having to pass beyond the shelled or gravelled part of the street, between the cross ties to avoid the protruding box car, then he had suddenly to steer to the left to cross the second track and when he reached the second track, he collided almost head-on with the engine of the moving train. While Boudreaux was shifting to low speed, his automobile, almost came to a stop and both he and Husband testify that they did not hear the moving train and could not and did not see it until the moment of collision.

The engineer and fireman on the train say that the usual warning signals, blast and ringing of the bell, were given. The switchman and yardman who were at the rear of the train and another switchman who was about 250 feet away also testify with singular unanimity that the usual alarm signals were given. None of these witnesses say when, or how long before reaching the crossing, the whistle was blown, but the fireman and engineer say that the bell was continuously ringing.

The trial judge, in well prepared reasons for judgment, alludes to this testimony on behalf of defendant, and while he expresses no opinion to that effect, evidently did not give full credence to it, and we cannot say that he has erred. It is shown that the switch tracks on which the collision occurred are only used once or twice a day, and the presence of a train at that crossing is rather unusual. Both Boudreaux and Husband are gifted with all their physical senses, and it is strange that they did not hear. Admittedly they could not see, and the natural instinct of self preservation must, wider the very apparent dangerous condition of the crossing have made them cautious. They both say that they heard nothing. The train was only running five or six miles per hour and the automobile had practically stopped at the nearer track on which the obstructing box cars were standing so that even if the bell had been audible between 50 and 100 feet away, Boudreaux would have had time to avoid the collision.

" The trial judge was of the opinion that defendant was at fault for not better safeguarding the public from a situation which amounted to a death trap. In this finding we see nQ reversible error.

3. Defendant pleads contributory negligence on the part of Husband. Boudreaux controlled the automobile and Husband was only his guest or subordinate. If Boudreaux was negligent, a fact which is not at issue here and upon which we express no opinion, his negligence cannot be imputed to Husband. Jacobs vs. Jacobs, 141 La. 272, 74 South. 992; Maritzky vs. Shreveport Railway Co., 144 La. 692, 81 South. 253; Daull vs. N. O. Ry. & Light Co., 147 La. 1012, 86 South. 477.

■ The judgment of the district court allows legal interest from January 5, 1926. This evidently is a clerical error. Interest should only be allowed from judicial demand and for that reason plaintiff has entered a remittitur to that effect.

We believe the judgment under review is otherwise correct and for the reasons assigned, it is amended so as to allow legal interest only from judicial demand, and as amended,

It is affirmed, costs to be paid by defendant and appellant.


author: MOUTON, J. ELLIOTT, X,

text:
    No. -
    First Circuit
    DE RIDDER GRO. CO. v. CLARKE
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 79, 82; Mandate — Par. 74, 78.
    Where a contract between a creditor and a collection agency eontáins the words “assigned” and “subject to discretion,” these words have reference to payments or settlements which would be realized by the adjustment com-J pany as a collection agency, but does . not give them authority to accept 25% of the amount of a judgment against the debtor in full settlement of the claim.
    2. Louisiana Digest — Alienation—Par. 16, 19; Mandate — Par. 74, 78.
    Where a letter from a creditor to an adjustment company clearly denies it the right to, settle a claim for 25% of the amount due, an assignment by the company on that basis is null and void under Article 2452 of the Civil Code and gives no right to the assignee to give a full receipt to the judgment creditor on collecting the 25% from him.
    3. Louisiana Digest — Mandate — Par. 47, 48, 52; Judgment — Par. 1.
    Under Code of Practice, Article 548, a judgment is property and, under Articles 2996 and 2997 of the Civil Code, the power to alienate it must be special and express.
    Appeal from Calcasieu Parish. Hon. Thomas Porter, District Judge.

      Action by De Ridder Grocery Company against Varice Clarke.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Ped C. Kay, of De Ridder, attorney for plaintiff, appellee.
    Griffin T. Hawkins, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

March 14, 1919, plaintiff company, on confirmation of default, obtained a judgment against defendant for $942.52, with legal interest from August 1, 1919. February 1, 1924, it placed this, judgment in the hands of the United States Commercial Adjustment Company for collection. In the contract of agency between plaintiff and the said commercial agency, in a corner, at the beginning of the agreement and in print, is found the following provision:

“The following correct and unpaid claims due us are assigned to you in consideration of the services to be rendered, subject to your discretion in settlement, and in accordance with terms printed on the back hereof; and remit commissions on the day payment or settlement is made.”

It is proper to say here that the terms printed on the back of the contract make no changes or modifications in the power thus conferred on the adjustment company.

It is true that in this printed authority to the adjustment company, the words, “unpaid claims due us are assigned,” are used; also these, “subject to your discretion”; but then following the words, “in settlement”; and then this clause of the contract says: “and we agree to report and remit commissions on the day payment or settlement is made”. Although the word "assigned” as to unpaid claims is used and “subject to discretion,” we think that they have reference to payments or settlements which would be realized by the adjustment company as a collection agency.

The record shows that a letter was written by the adjustment company to plaintiff herein on April 11, 1924, in which it says, that after having had considerable correspondence with Clarke, defendant, he was willing to pay one-quarter of the entire claim in full settlement. The adjustment company said in the letter, we “would suggest that you accept his proposition”; also said: “If you accept said amount, kindly forward judgment covering same”. In a letter to the adjustment company by plaintiff, of date April 14, 1924, in answer to the former’s letter of April 11, plaintiff said, in part, that they were surprised the adjustment company had suggested an acceptance of a settlement on a 25 per cent basis in settlement of their account. Further in the letter, plaintiff said: “You can just as well get settlement for 50 per cent ,and this we will agree to accept”. This letter from plaintiff carried a clear refusal to allow the settlement suggested by the adjustment company. In a reply to the letter of the 14th by plaintiff, the adjustment company wrote another letter dated April 17, in which it says that it could not secure a settlement at 50 per cent; and says therein that -a third party interested in Clarke, defendant, offered a settlement at 25 per cent. Again, the adjustment company' advises a settlement on that basis, and in conclusion writes “that if the same meets with your approval we would appreciate your forwarding to us all the papers covering this account”. It is evident from these letters of the adjustment company that it did not consider itself an assignee with the discretionary power to accept a settlement upon any basis, however disproportionate to the amount of the judgment. There can be no doubt that plaintiff never intended to confer such authority, and in which the adjustment company fully concurred, if we are to be guided by its own construction of the contract as appears from its own letters. Notwithstanding all of that, the adjustment company sold this judgment to H. C. Craft for $235.50, on May 24, 1924, on about a 25 per cent valuation, a little over a month after plaintiff had refused its approval of a settlement on that basis. This amount of $235.50 was ¡paid to Craft by defendant, Clarke, who got from Craft a full receipt for the judgment. Plaintiff, in these proceedings, obtained the issuance of a fi fa on his judgment of $942.32, which it had obtained against defendant, who obtained a preliminary injunction restraining the execution of the writ. The court recalled the preliminary restraining order, and dismissed the rule. A judgment is property. C. P. 548. The power to alienate or sell must be special and express. C. C. 2996, 2997. There was no such power given by plaintiff to defendant under the provision of the contract above quoted. Besides, as appears from the letters above referred to, the authority granted the adjustment company was so construed by it and plaintiff company. As the adjustment company had no power to sell; the sale to Craft was null; and so was the payment to Craft by Clarke, defendant. Por the foregoing reasons the judgment is affirmed.

ELLIOTT, X,

concurring.

The word “assigned”, used in the agreement, has reference in this instance to an appointment, designation. Taking into account all that is said in the agreement, it is plain and obvious that United States Commercial Adjustment Co., Inc., did not have the power thereunder to sell the judgment. The power to sell must be express and special. Civil Code, Articles 2996 and 2997. The sale of a thing belonging to another, without authority and not ratified, is mill. Civil Code, Article 2452. The sale to Craft was therefore null and he had no authority to settle with Clarke, nor grant him the discharge which he pleads.


text:
    No. -
    First Circuit
    SMARDON v. BROUSSARD
    (May 3, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 98.
    Under Section 62 of Act 64 of 1904, the Negotiable Instrument Act, “a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an in- . dorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity”.

      2. Louisiana Digest — Bills and Notes— Par. 148, 150.
    A plain promissory note which 'contains no waiver of presentment for payment, demand notice of non-payment or protest does not hind the indorser unless such notice of protest was duly given on authority.
    3. Louisiana Digest — Pleading—Par. 62. 73.
    Where a suit is dismissed on an exception no cause of action due to defective pleadings, the dismissal has the effect of dismissal as of non-suit.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, District Judge.
    Action by W. K. Smardon against John R. Broussard.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. O. Pecot, of Franklin, attorney for plaintiff, appellant.
    Rene H. Himel, of Franklin, ..attorney for defendant, appellee.
   MOUTON, J.

A promissory note was executed December 13, 1922. It reads in part: “Eight months after date I in solido promise to pay to the order of John R. Broussard two hundred and seventy-eight dollars at the Citizens Bank, of Jeanerette, La., etc.” On its face the note is signed by Carver’s Teche Rice Milling Company; and on its back is endorsed by John R. Broussard, against whom this suit is brought on the note.

In his petition plaintiff alleges that the note was executed by Carver’s Teche Milling Company, and John R. Broussard; as endorser, in solido.

The defendant filed an answer, and in the alternative alleged that he was not liable on the note as endorser because the note had not been presented for payment at the Citizens Bank, of Jeanerette, at maturity, and for failure on the part of plaintiff to give defendant notice of nonpayment or dishonor of the note. After issue joined the parties opened the case for trial on February 9, 1927. Plaintiff was placed on the stand as a witness, but before testifying on the merits, defendant objected to all testimonoy because the note contained no waiver of presentment for payment, protest or notice of dishonor, and for the failure of plaintiff to have alleged any such waiver. In connection with this objection defendant filed an exception of no right and no cause of action. The court maintained the exception, thus cutting out the introduction of any evidence. In the original judgment the court rendered on the exception the demand of .the plaintiff was dismissed as in case of non-suit, and on a second judgment his suit was dismissed.

He appeals.

The Legislature has adopted the Law of Negotiable Instruments by Act 64 of 1904, and upon its provisions, which are amply sufficient, the issues presented in this case will be determined. *

Although plaintiff alleges in his petition that the note was executed by John R. Broussard, as endorser, he, however, insists that Broussard is primarily and not secondarily bound on the note. It will be noticed that in the printed line on the face of the .note the pronoun, “we,” in solido promise, is changed to the pronoun, “I”. It seems to us that this change which was made in the note, though it may have been awkwardly done, indicates that the parties desired to exclude the idea that John R. Broussard, by his endorsement, was incurring a solidary obligation. However this may be, the note bears the- signature of Carver’s Teche Rice Milling Company on its face, as the maker, and that of defendant on its back, as endorser.

Section 62 of Act 64, 1904, says:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

There are no words or expressions used in the confection of this note to give the slightest indication that defendant intended to be bound on the note in any other capacity than as an endorser. On the contrary, the fact that the change was made on the face of the. note from the word we to I, and that it was signed on the back where endorsers usually place their names, should rather incline the mind to the inference that * defendant intended to be bound as an endorser, and not as a maker.

Counsel for plaintiff contends that as the words “in solido” appeared on the face of the note, defendant having endorsed it, is primarily liable.

Among many other decisions upon which he relies, he cites Bonart vs. Robito, 141 La. 987, 76 South. 166, in support of this contention. In that case the court said:

“An indorser of a negotiable instrument binds himself to all of the obligations which, on the face of the note, are expressly declared to be binding upon any and all indorsers.” -

In that case, as appears by a copy of the note which is embodied in the decision, the signers, indorsers and guarantors, each and all, expressly bound themselves in solido on the note, and were held so bound. In this case there is no such stipulation on the face of the note to bind defendant, in solido, as an indorser. To the contrary, the note, as executed, repels the idea that defendant intended to bind himself by a solidary obligation. It may be proper to say in connection herewith that there is not on the face of the. note any waiver of presentment for payment, demand, notice of non-payment or protest, so that plaintiff could have dispensed with the observance of these requirements beforé suing. The Carver’s Teche Rice Milling Company was the party “primarily” liable on the note as it was absolutely required to pay it and defendant, as endorser, was “secondarily” responsible. Act 64, 1904, Sec. 192. Plaintiff having failed to allege that the note at maturity had been presented for payment, ¡and that defendant had received notice of dishonor, and as there was no waiver of the note of presentment for payment, notice of nonpayment, etc., we find that the exception of no cause of action was correctly maintained, and that the evidence offered by plaintiff was properly excluded. We now pass to the consideration of the next question which is as to whether the court properly dismissed the suit or should have limited its decree to a dismissal as in case of non-suit.

As we have hereinabove stated, the suit was dismissed on an exception of no cause of action for lack of essential allegations in the petition, and before any evidence whatsoever was offered on the merits. Clearly, this dismissal was grounded on defective pleadings on the part of plaintiff. A dismissal for that cause has been repeatedly held to be, in effect, a judgment of non-suit. Woodruff vs. Producers Oil Co., 142 La. 368, 76 South. 803; Carolina Portland Cement Co. vs. Southern Wood D. & F. Co., 137 La. 469, 68 South. 831. Counsel for defendant in presenting opposite views, rely with confidence particularly on the case of Laenger vs. Laenger, 138 La. 532, 70 South. 501; also on the cas.e of Gracona, where they say the court affirmed the ruling in Laenger vs. Laenger. In the case of Laenger the court held that where an exception of no cause of action was maintained because plaintiff had omitted necessary allegations, the judgment was, in effect, one of non-suit. This is what happened in the instant case, and prior to any trial on the merits, and the ruling of the court in that case is in line with the prior rulings of the court in many other cases. In the Laenger case the court said further:

“On the other hand, a judgment, sustaining an exception of no right of action attacking the merits of the plaintiff’s action, assuming that his case is stated completely in his petition, and denying that the law affords the relief prayed for, is conclusive of the issues presented as if the judgment had been rendered after an answer filed and evidence heard.”

Here, it would be a violent assumption to say that plaintiff had completely stated his case in his petition, as it is very evident that it was for the want of a complete statement that his evidence was never permitted to be introduced and heard on the merits. This case and the Laenger case are therefore essentially different, and the judgment herein must therefore be held to be one as in a case of non-suit.

It is therefore ordered, adjudged and decreed that the second judgment rendered by the lower court on February 9, 1927, is hereby amended in this respect: That instead of decreeing the dismissal of the suit, that plaintiff’s suit be and is hereby dismissed as in case of non-suit which the lower court had originally decreed; and that in other respects said judgment be affirmed. Defendant to pay cost of appeal, those of the lower court to be paid by plaintiff.