author: Planchar]), J.

text:
    No. 12,989.
    Henry Meyer vs. George J. Labau et als.
    Syllabus.
    1. Defendants sold to plaintiff a store site in a country neighborhood, together with the good-will of the mercantile business they had been conducting, and obligated themselves not to engage in similar business there for a period of three years. Later, within the prohibited period, a store was opened across the road and distant from plaintiff’s store one hundred feed, carrying same kind of stock plaintiff carried, with defendants behind the counters, making sales and attending to the affairs of the concern — one of them having the principal direction of the business. Held — a breach of the contract, notwithstanding the second store may have been conducted in the name of another.
    2. The transfer of the good-will, and stipulation not to engage in competing business, is considered to have meant not only tile extending of the goodwill to plaintiff, but maintaining him' in > it for the space of time agreed upon, and this good-will was withdrawn when defendants toolc part In conducting the uval store.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Andrew Thorpe and Thomas II. Thorpe for the Plaintiff and Appellant.

      Foster <£• Broussard and L. 0. 'Mocker, for the Defendants and Appellees.
    Argued and submitted January 11, 1899.
    Opinion handed down May 1, 1899.
    Rehearing refused June 26, 1899.
   The opinion of the court was delivered by

Planchar]), J.

This action is one sounding in damages-for breach of contract.

Plaintiff was a merchant in Bayou Sara, Louisiana. He concluded to change his location, and did so, transferring his business to the Parish of Iberia.

Defendant, George Labau, with his two brothers of the half blood, Louis and Paul Oyr, owned a store site at what is called “Hubertville,” near the town of Jeannerette. The two Cyrs were minors, but emancipated. Paul, the younger, was at school in Kentucky. Louis Oyr was in Louisiana with his h-alf brother, Labau.

The store site referred to embraced one acre of land. Here, for years, a mercantile business had been conducted by Mrs. E. J. Cyr, the mother of Labau and Louis and Paul Cyr. Labau, the issue of her first marriage, was much older than the Oyr brothers,, issue of her last marriage.

When Labau became of age his mother transferred to him an interest in the business, and the firm became E. J. Cyr & Son.

Early in 1896 the mother died, leaving as her heirs the three sons aforesaid.

Labau then qualified as tutor of his minor brothers.

He continued the mercantile business in the old firm name for their account and his.

Some ten or twelve months after the death of the mother, the store house was destroyed by fire. A portion of the goods was saved. Those goods were placed in a frame building across the road, and the business continued.

Two or three months later, plaintiff entered into negotiations with George Labau for the purchase of the old stand and business of E. J. Cyr & Son.

This culminated on March 3,1897, in a notarial act of sale by Labau and the Cyr brothers to plaintiff of the store site. The only improvements upon it at the time were a few out buildings of insignificant value — same having been appurtenances of the larger store building destroyed by fire.

■ Labau and Louis Cyr signed this act of sale before the notary. It was. then sent to Kentucky, where Paul Cyr signed it.

The same day, a little later, the same notary drew up a paper, the substantive part of which reads as follows:

“Be it known that on this 3rd day of March, 1897, * * * personally came and appeared George Labau and Louis Cyr * * * who declared that in addition to the real estate this day sold, they do hereby transfer unto said vendee, Henry Meyer * * * the good will of their mercantile business this day transferred to him, and bind themselves not to engage in mercantile business in Hubert-ville within a period of three years from this date.”

.While this paper recites that Louis Cyr had appeared and made the declaration along with Labau, it seems that only Labau actually signed the document — signing in the presence of two witnesses and the notary.

Louis Cyr, who, it was understood, was to sign, did not appear to-affix his signature, though he had been just previously in the notary’s office. Nor did he subsequently sign it.

A few days later plaintiff purchased the remnant of goods belonging to Labau and the Cyr .brothers, remaining over from that part of the stock saved from the fire, and opened business for his own account.

On the site he had purchased he erected a store building at a cost of $1,800, which, when completed, he moved into, and has since conducted there a general mercantile business — the same kind or character of business which Labau and the Cyrs had previously conducted.

Things went on as the parties contemplated they should until the fall of 1897, when a store building was erected on land belonging to defendants and Paul Cyr just across the road, and distant less tb^n one hundred feet from the store of plaintiff.

This building' was put up by the direction and under the supervision of Labau.

In October, 1897, a mercantile business was opened in'it under the firm name of E. J. Cyr & Son, with George Labau, Louis Cyr and' Paul Oyr behind the counters, -making sales, and attending to the affairs of the concern. George Labau seems to have had the principal direction of the business. It was he who bought the stock, kept the books, drew and signed checks, took out the license, had letter and bill heads printed, and attended to the correspondence of the firm.

Deeming this an active violation of their contract of March 3, 1897, with him, plaintiff, in March, 1898, brought this action against Labau and Louis Cyr, alleging- breach of contract and injury, and laying his-damages at $1(5,100 itemized under several heads.

An exception of misjoinder filed by defendants was properly overruled. They then answered by general denial and prayed for trial by-jury. The result of the trial was a verdict in favor of defendants^ Plaintiff appeals.

To recover he must show, (1) contract; (2) the breach; (3) damage-

The conclusion we have arrived at is he has shown all three as-against George Labau.

As to him the contracts executed on March 3, 1897, are to be viewed as one- act.

Not so as to Louis Cyr, who, while there was an understanding he,too, was to join in the transfer of the goodwill of the mercantile busi- ’ ness and in the obligation not to compete with plaintiff in such business for a period of three years, did not consummate the same by signing the paper drawn up to that effect.

Where parties enter a covenant one with the other, and it is the-intention to reduce to writing the agreement, to be signed by, all concerned, the covenant or agreement can not be said to be perfected or become exigible until so written up and signed. 3 M. 349; 1 N. S. 421; 24 La. Ann. 433; 4 L. 77; 30 La. Ann. 321; 28 La. Ann. 33.

In this instance the parties did contemplate that the understanding' and agreement as to the goodwill, etc., should be reduced to writing: and sighted. ,

These features were, we think, of the essence of the contract, ire large part forming the inducement to contract on part of plaintiff, and. the same entered into the consideration of the purchase by him as evidenced by the two acts before Hacker, notary pubbe, on March 3, 1.897.

But Louis Oyr did not consummate, by subscribing, that part of the transaction relating to the transfer of the goodwill and embodying the obligation not to compete with plaintiff. And while there is force in the contention that his brother should be considered as having authority to act for him, and inasmuch as he, Louis Cyr, shared in the proceeds of the sale of the store site, goodwill, etc., he should be held bound along with Labau, we do not feel authorized, though it is a close case, to so hold.

Eliminating, therefore, Louis Cyr from the case, what is the attitude of Labaú, the other defendant?

Plaintiff testifies that when in the notary’s office he discovered the ■act of sale drawn up did not mention the transfer of the mercantile .business, goodwill, etc., lie called attention to it. Whereupon Labau .-said the agreement as to the goodwill, etc., could be signed any time thereafter; that there was necessity for haste to draw up -and execute the sale so far as the acre of- land was concerned as it had to be sent off to his brother, Paul Cyr, in Kentucky, for his signature. That part, therefore, of the transaction which these parties had agreed on was then and there completed. After the signing of same, plaintiff says, all the parties left the notary’s office, but returned after awhile when the notary drew up the second document relating to the transfer of the goodwill, etc. Louis Cyr, he says, was not then present, but Labau declared that whatever he (Labau) would do, would be all right with his brother, and thereupon he, with plaintiff, signed this .second document.

This statement of plaintiff is not contradicted, though both defendants were witnesses in their own behalf. Neither had anything to say on the subject. The notary was not called to the stand, though ■present in court, as one of the attorneys for .defendants.

What was sold in the way of a store site by Labau and the two Cyrs to plaintiff, in the act first executed on March 3rd, was one acre of ground “at a place commonly called Hubertville.”

“Hubertville,” it thus seems, was a neighborhood in the country, and ’the effort made by the defense to confine “Hubertville” to the single acre sold to plaintiff, in order to claim that in opening store across the public road from the acre, they were not violating the obligation to abstain from doing business in ITubertville for a period of three years, fails. We hold “Hubertville,” in the sense used by these parties in their contracts, to include the country immediately, contiguous t.o and around the acre sold to plaintiff. Any other construction would defeat the object contemplated, viz: — relieving plaintiff from the effects of competition resulting from a near-by store opened by thes'e. same parties, who were selling to him.

What was transferred by Labau to plaintiff, in the second act passed before the notary on March 3rd, was the goodwill of the mercantile business he and the two Cyrs wore then doing at Hubertville, and, along with it, he bound himself “not to engage in mercantile business in Hubertville.” for a period of three years from that date.

While the1 first act passed that day did not specifically include the conveyance1 of their mercantile business, but only the acre of ground, interpreting it by the second act executed the «ame day it is clear that Labau intended to convey, by the terms used in the first act, the mercantile business itself, as well as the site of such business, for, in the second act, he refers’to “their mercantile business this day transferred to him,” the phrase being “they (meaning himself and Louis* Cyr) do hereby transfer .unto the said vendee, Henry Meyer, * * * the goodwill of their mercantile business this day transferred to him, and bind ourselves not to engage in mercantile business in ITubertville within a period of three years from this date.”

This “mercantile business” so transferred was the goodwill of the then existing establishment, which meant its patronage as far as he could control it, the encouragement of its patrons, and the advantage attaching to a business already established.

The “mercantile business,” as thus used, did not mean the store site, for that was specifically conveyed by adequate physical description in the act; nor did it. mean the remnant of goods remaining from those saved from the fire, for they were, by another and later contract (verbal) sold to plaintiff for the price of $425.

This second act, executed oh March 3rd; specifically conveyed the goodwill.

We hold the two acts to be parts of one and the same transaction, so far as Labau is concerned, and that the consideration of $1,500, mentioned in the first act, covered not merely the sale of the store site, but “the mercantile business” — the g'oodwill of the existing establishment —as well.

And in those acts Labau bound himself not only to extend to plaintiff this goodwill, but to maintain him in it for the space of three years by the obligation not to engage, himself, in mercantile business at that locality for that period of time.

Has he fulfilled the stipulations he thus assumed ? He has not.

By taking part in the opening and conducting of a rival business establishment immediately adjacent, giving his aid and encouragement to it, lending to it the advantage of his presence, his experience', his knowledge of the business, and his acquaintanceship with those, who, in that neighborhood, become patrons of such establishments, he has actively, and flagrantly violated his obligation to plaintiff. He has, by this conduct, failed to maintain plaintiff in the goodwill conveyed to him, and has openly done that which is tantamount to withdrawing it from him. More than this, he must be held, within the scope of a liberal construction of the terms of the second act executed on March 3rd, to have engaged in mercantile business at Hubertville within the prohibited period.

He has done these things, even though it be true that he has no interest as owner in the new store erected and conducted there. It quite suffices that he, having conveyed to plaintiff the goodwill of his commercial business at that point, has now withdrawn it and extended, same to the new store. The evidence, we think, abundantly establishes this, as it does also, in our view, that plaintiff would not have paid as much as $3,500 for an acre of land in the country on which to erect a store house, if he had not been induced to believe he was buying along with it the goodwill, patronage and advantage of the old business so long conducted there.

We are far from being convinced by the testimony that Labau has no interest as owner in the new store. Many facts and circumstances-point to the reverse, and we think the weight of evidence establishes that, at least in the inception of the enterprise, he was a part owner and intended to be a member of the new firm, which started out to be called “Cyr Bros. & Labau.” But we do not find it necessary to go-into that inquiry.

Defendant Labau’s liability is established without it.

As to the damages, plaintiff has suffered, it appears, we think, with sufficient certainty that the greater part of the $1,500, paid by plaintiff on March 3rd, when he purchased the store site and goodwill, was on. account of the goodwill, which has now been withdrawn from him.

Again, plaintiff erected a store building upon the site purchased, at an outlay of $1,800. lie did this on the faith of defendants’ obligation to protect -him from their competition. This protection they have taken away from him, and in so doing have neutralized the advantages he would have had from it.

And, again, with a rival establishment put up and conducted within a hundred feet of his store, it is not to he gainsaid that plaintiff does less business than he would do if it were not there.

It is idle for defendants to contend -to the contrary. This rival store divides the patronage, and by this division plaintiff is a loser.

We will not go into a calculation to attempt to show how much he is injured by this competition. Some figures are given, in the evidence, .and it may be that the losses can not be calculated to a mathematical certainty.

But, under the three heads of damage given above, we feel entirely justified in fastening- upon defendant Labau a liability of fifteen hundred dollars under the guaranty of his contract and his breach thereof.

For the reasons assigned, it is ordered and adjudged that the verdict of the jury and judgment based thereon,, in so far as the defendant Louis Cyr is concerned, are affirmed; but in so far as the defendant George J. Labau is concerned the said verdict is set aside and the judgment predicated thereon annulled and reversed, and it is now decreed that plaintiff do have and recover of the said George J. Labau the sum of fifteen hundred dollars with legal interest thereon from judicial demand until paid, together with costs of both courts.

Mr. Justice Monroe takes no part, as he was not a member of this court when the ease was submitted.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,961.
    The De La Vergne Refrigerating Machine Company vs. The New Orleans and Western Railroad Company.
    Syllabus.
    1. A contract for two cotton compresses was made under a fixed limit as to time of completion. One was completed, delivered and accepted within the time. The other was not, but the contractor was not put in default, no demand was made for dissolution of the contract, and the contractor was permitted to proceed with its execution. Thereafter the other party could not arbitrarily declare cancellation of the contract and decline to receive the press. Under the circumstances, IIki.d, the press should have been accepted and the contractor proceeded against for damages, ’if any, caused by the delay.
    2. When one party offers to perform a condition precedent and is prevented by the other, the offer will be treated as performance, and the conduct of the other party as excusing performance.
    3. A contract made in New York to be executed and consummated in Louisiana —the acceptance of the thing forming the object of the contract being dependent upon a suspensive condition, to-wit: — that after completion a stipulated test is to lie applied — which test is to be made and can only be made in Louisiana, is a Louisiana contract, and the thing sold subject to the vendor’s privilege accorded by the Louisiana law.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Denegre, Blair & Denegre for Plaintiff and Appellee.

      Farrar, Jonas, Krutbschnitt & Gurley for the Defendants, Appellants.
    Argued and submitted March 21, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused June 30, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff company and a corporation known as the Delta Constr.uction Company, on July 10, 1895, entered into a contract whereby the former obligated itself to construct, erect and deliver to the latter on certain premises in the State of Louisiana two cotton compresses and appurtenances, one a 2,000-ton Bierce press, the other a 4,000-ton Webb press.

The price agreed upon for the two compresses was $80,000, with exchange on New York, a portion of which was to bo paid at the signing of the contract, other portions as the work progressed, and 'the remainder, $32,000, sixty days after completion.

It was stipulated that the Bierce press was to be completed and ready for work 120 days after date of the contract, and the Webb press 150 days thereafter.

A further stipulation embodied the guaranty on part of plaintiff company that the compresses would, when completed, compress 120 bales of cotton, measuring 28x56, and weighing, approximately, 500 pounds each, in an .hour and twenty-five minutes; and that each of these bales so compressed, measured an hour after compression, would show an average density of thirty pounds per cubic, foot.

The parties to the contract were both New York corporations and the contract was entered into and signed in that State. It was to be executed in Louisiana.

Subsequently, the New Orleans & Western Railroad Company, a Louisiana corporation, succeeded, by transfer and subrogation, to all the rights of the Delta Construction Company in and to the contract.

The Bierce press was constructed and erected within the time agreed on, and with reference to it there is no controversy.'

The Webb press was not constructed within the time agreed on, and at the end of that period, or on December 8, 1895, an important modification of the contract was agreed on between the parties.

It was proposed by the Delta Construction Company and accepted by plaintiff company.

The proposal was the result- of a conversation the parties had had that day (December 3, 1895 ) relative to the delays in completing the compress, and its object was stated to be to settle all questions as to damages caused by the delays. The proposal and its acceptance were in writing and its essential features were these:

“The company (the Delta Construction Company) will pay you $8,000 on account of the original contract on or before December 10, 1895; $8,000 on March 1, 1896; $8,000 on June 1, 1896, and the balance due on said original $80,000, after deducting all previous payments, sixty days after the Webb press is ready to operate and has-been tested accordingly.

“It is distinctly understood that this additional memorandum to the original contract shall not change in any manner, or alter, the guarantee as to the performance of the presses, given by you in said original contract dated July 10, 1895.”

This written modification of the original contract, it will be observed, waived the time limit and damages incident thereto, and permitted the execution of the contract for the erection of the Webb press to. proceed without naming another time or date as to which it should be completed.

However, it is conceded by both parties that, contemporaneously with its execution, an oral agreement was made that the time for the •completion of the press under the modified contract should be March 1, 1896.

This modification of the contract, as well as the oral agreement as to March 1st for i'ts completion, took place in the City of New Orleans between the representatives of the contracting parties.

The compress was not completed by March 1, 1896. The reasons .assigned for this are that the press (Webb) was of unprecedented size, weight and power, that it was nearly twice as large as any compress that had ever theretofore been ordered, that in consequence special models, moulds and dies for the enormous castings, etc., had to be made, certain parts of the press were compelled to be ordered from foundries and machine works, other than plaintiffs’, having special adaptability, or facilities, for such work, etc.

J3ut, notwithstanding- its non-completion on March 1st, defendant neither put plaintiff in formal default in reference thereto, nor brought suit to annul the contract because of failure to timely complete, nor was complaint on this account made at the time.

Plaintiff proceeded with the work of the press, expending large sums of money in materials and labor.

In April, 1890, defendant company entered into contracts with cotton factors in New Orleans to handle, stqre and compress their cotton for the season of lSSC-I, beginning September 1, 1896. As the result of these contracts, the company handled of that season’s business over 800,000 bales of cotton, of which it compressed over 225,000 bales.

And we find that late in April, 1896, under the belief that four compresses were necessary to equip the company with proper facilities for doing its business, it contracted with W. W. Bierce to construct, two additional compresses oil the premises, to be completed one September 1, 1896, the other October 1, 1896.

All during the months of March and April, and while the contracts with the factors for the delivery of cotton, -and the one with Bierce for the two additional compresses, were being made, plaintiff’s contract •for the Webb press was not interfered with, and this condition of affairs continued down to May 1, 1896, when defendant company wrote plaintiff from their New York office to the effect that advices from their New Orleans office stated the Webb press had not arrived yet, nnd referring to the fact that they (defendant) had already suffered damages through the delay, and that the erecting- of the press would further interfere with ,the general work and operation of their plant, .admonished plaintiff that unless due diligence was shown in completing the contract, damages would be charged for the delay, or defendant “would refuse to accept the press altogether.”

Plaintiff answered this on the 19th of May to the effect that every effort to complete the press at the earliest possible moment was being made, and it was expected to have it ready for operation before the cotton season opened.

Matters rested thus until June 3, 1896, when defendant wrote again advising that, from the outlook, the completion of the press by A ugust i, 1896, was highly problematical, and stated that unless it was in working order by that time, “we hold you responsible for whatever damages we may suffer from the fact of its non-completion prior to that date.”

Plaintiff replied to this, reiterating that everything possible was being done to complete the press, and that it was confidently expected to have it in operation by August 1, 1896.

It will be observed that both these letters of defendant (of May 11th and June 3rd) had in contemplation the holding of plaintiff responsible in damages for further unreasonable delay in completing the press, and the one of June 3rd, for the first time, intimated August 1st as the time beyond which plaintiff would not -be permitted to go without incurring the penalty.

It is true the letter of May lltli mentioned the possibility of defendants refusing “to accept the press altogether,” but this can not be viewed by any manner of means as an ultimatum. It was put only in the alternative, and, as a consequence, plaintiff was justified in concluding that if due diligence (in the language of the letter) was not shown in completing the press, the only effect would be the incutring of damages on their part.

Nor can plaintiff’s reply to the letter of Juno 3rd, be viewed as an accept an re of August 1st as the time- when the press would positively be completed.

Rut even if it. were so accepted, the very letter of defendant, to which it was a reply, mentioned nothing more formidable than the incurring of liability for damages as the consequence of the failure to complete by August 1st. *

That is to say, defendant’s letter informed plaintiff that unless the press was in readiness for operation by August 1st, plaintiff would be held for damages suffered prior to that date. This can be reasonably given no other meaning than that if the press were completed by that time defendant waived all damages suffered by the delay up to that date; if not completed by that time, defendant would assert a claim for whatever damages it may have incurred previous to August 1st. This, of course, left defendant free to claim also, a fortiori, the damages which might accrue to it by delaying completion of the press after August 1st.

That this is the correct interpretation to be put upon these letters of defendant is shown by the next communication addressed to plaintiff, that of June 26th, 1896, wherein it was said: “You were notified sometimo ago that unless this compress was ready for operation by the first of August, serious damage and injury would be inflicted upon the company, and you would he held therefor." (Italics ours.)

There was, it will bo observed, nothing here beyond claiming-damages.

The letter, then, solemnly warns,plaintiff that if the compress is not ready by August 1st, large damages will immediately begin to accrue and the amount thereof will progress from day to day. The letter elaborates upon this, going into details to show to what inconvenience and loss the New Orleans and Western Railroad Company would be put by delaying completion of the press beyond August 1st, and how serious the matter was viewed by that company to be, bot-h to themselves and to plaintiff company.

By this letter defendant again signified its election to consider the contract still in force, and to require plaintiff to go on and complete it. And so plaintiff proceeded with the work.

On July 13, 1896, the unloading of some cars of material for the-press, that had arrived, was stopped by the officers of defendant.

Relative to this, plaintiff’s local agent wrote defendant, calling attention to the fact that the time originally named in the contract for the completion of the work was afterwards extended, declared that the essential and principal parts of the press were then on Band in cars which had arrived, and demanded the right to unload the material and proceed with the work of erecting the press. This remonstrance had the desired effect. The opposition to unloading the cars ceased and the work on the press continued.

Three days later, July 16th, defendant’s vice-president in New York, wrote plaintiff in that city, that if the compress was not completed by the first of August the contract would be canceled, and plaintiff required to remove from the premises. This letter also warned plaintiff that iu proceeding further with the work it must be with the understanding- that if the press was not ready for operation by the time named the contract would be canceled.

This appears to have been the first positive announcement made by defendant to plaintiff that the contract for the press would certainly be canceled should it not be completed by August 1st. It was then within fifteen days of that time, and the situation with regard to the press was such that it was a physical impossibility to complete it by then.

The letter of July Kith was followed by another of July 21st, in which defendant tells plaintiff that from information received it is deemed quite impossible the press can bo completed by August 1st, and again expresses the intention to cancel the contract if it be not ready for.operation by that time. This letter states it recognizes the right of plaintiff to continue work upon the compress down to the first of August, but it is at plaintiff’s risk, for the contract would be treated as canceled if there should be a failure to complete by then.

Plaintiff replied the next day that it was not believed the compress could be completed by August 1st, but that it would not be long thereafter when it would be. The letter then states that plaintiff did not propose to let defendant suffer any damages at all on account of the incompiefion of the press by August 1st, and that every effort would be made to have it ready to compress cotton when needed for that purpose; and, the letter adds, “we expect every co-oxicration on your part, and * * not to be interfered with by you or your men.” It also states that it was hardly believed defendant was in earnest in announcing a imrpose not to allow further work on the press if not completed by August 1st, and that such a course would result in great loss and damage to plaintiff for which defendant would bo held responsible.

Defendant answered this on July 30th, reiterating its purpose to prohibit further work on the xn'oss if not conrpleted by August 1st, and this -v;w followed on August 3rd by a notice to plaintiff to cease operations and to remove the parts thereof from the premises.

By letter from headquarters plaintiff was notified of the termination of flu contract, and that access to the xiremises was denied its officers and omxffnyws-

Force being threatened, if necessary, to exclude plaintiff from the premises, the latter had recourse to the courts, applying for a writ of injunction tc. restrain defendant from interfering with the erection of the press.

The application was granted, and under protection of the writ' plaintiff proceeded with the erection of the press.

It was completed and formally tendered to defendant on September 17, 189G. The evidence satisfies us its completion would have been accomplished some days sooner than this had it not been for defendant’s attitude of hostility to further work and the obstacles (short of violating the mandate of injunction) thrown in the way.

The tender of the press-was refused, defendant absolutely declining acceptance. Not only this, but it refused positively to supply the cotton to make the test of the press required by the contract, and when plaintiff purchased some cotton to make the test with, defendant gave instruction to prohibit the use of its steam power for the purpose.

The right to make the test was duly and repeatedly demanded by 'plaintiff, and defendant fully put in default in reference thereto.

Following defendant’s refusal to accept and pay for the press, this suit was brought, claiming a balance of $32,000 due on the contract for the two presses, and averring the contract to be a Louisiana contract because designed to take effect and be carried out in this State, and because the modification thereof was made and accepted in this State, plaintiff claims the vendor’s privilege on both presses with their boilers and appurtenances, all of which it is alleged are removable without prejudice to the realty.

Defendant’s answer to the suit sets forth in detail its grounds of complaint against plaintiff for failure to timely complete the Webb press, denies that any serious difficulties resulted from its size or design, charges plaintiff with negligent delay, avers the press could have been completed by March 1, 1896, if due diligence had been used, etc., etc., and represents that plaintiff's conduct, in failing to complete it, within the time aforesaid, constituted, under the circumstances, an active, violation -of the contract authorizing .its cancellation. It denies that any of its (defendant’s) acts or doings in reference to the contract constituted any waiver on its part of its right to take advantage of plaintiff’s active or passive violation of the same, or any election of what remedy it would pursue.

It asks for recognition of its right to cancellation of the contract, and prays for judgment in reconvention for damages alleged to have been suffered by reason of the failure to complete the compress as agreed upon.

It avers that if defendant is' adjudged to take the press and pay the price, then it asks judgment for damages caused by the delay in the execution of the contract and because defendant was compelled to buy another press, which was purchased in consequence of the failure of plaintiff to erect, within the time specified, the Webb press.

These claims for damages are set forth in detail as to amount and averments of fact.

Judgment below was in favor of plaintiff for the sum sued for, with recognition of the vendor’s privilege on both presses, and rejecting defendant’s demands in reconvention.

This appeal followed.

This contract was for two compresses and their ereetion. A time limit was fixed. Within this limit the contract was partially executed by furnishing and erecting one press.

Defendant accepted this press, but did not elect to consider the contract at an end as to the other press.

On the contrary, it consented to a modification of the contract in this particular, permitted and required plaintiff to go on with the work of the second press, and March 1, 1896, was agreed on as the extended time for its completion.

When this period arrived and the press was not completed, defendant failed to put plaintiff in default, and by its action or non-action in this regard must be considered as having elected to permit plaintiff to proceed with the work and complete it.

This election by defendant — that plaintiff should complete the press rather than that the contract should be considered ended — was, we think, adhered to down to July 16, 1896, when notification was given that if the press was not completed by August 1st, the contract would be canceled.

The communications addressed during April, May and June of that year by defendant to plaintiff are to be viewed, we think, as remonstrances against the slowness which defendant thought characterized the work on the press, and as warnings that plaintiff would be held in damages if not completed by August 1st.

In other words, defendant allowed plaintiff to go on with the work, intending to hold the latter responsible for the damages which might be caused by the delay in its completion. And plaintiff, on this, did proceed with the work, expending large sums and pushing the work so as to have the press completed by the opening' of the cotton season, say, September 1, 1896.

Under these circumstances, defendant could not arbitrarily, on July 16th, fix upon August 1st as the1 final day for the completion and •delivery of the press.

Its previous conduct and action had placed it out of its power, of its own volition and without the consent of plaintiff, to dissolve the contract and deny the right to carry the work of the erection of the press forward to completion. It was estopped from altering its position to the detriment of plaintiff. The latter had acted upon a condition of affairs, assented to by defendant, which justified it (plaintiff) in believing it would be permitted to complete the contract, taking the risk of being held for damages resulting from delay.

It should have been permitted to completo the press, and upon its completion defendant should have consented to the tests the contract called for, and if the press measured up in results to the requirements, defendant should have accepted it, under proper reservation of its right to claim compensation for whatever damages may have been occasioned by the delays.

Gayden vs. Railroad Co., 39 La. Ann. 269; Turner vs. Collins, 2 Martin (N. S.) 605; Back vs. Slidell, 1 La. Ann. 375; C. C. 2046, 2047.

We agree with our brother of the District Court that defendant’s demand in the instant suit can not be construed, under the circumstances here presented, the seasonable demand for dissolution judicially required by the articles of the Code just cited.

And we further agree with him that defendant must take the press and pay the price, and that its conduct in refusing plaintiff the facilities to make the test when the press was tendered, and the offer to test was made, has forfeited its right to the test required by the contract, and it can not now demand the same as a condition precedent to its acceptance 'of the press and payment of the. price. When one party offers to perform a condition precedent, and is prevented by the other, the offer, under the circumstances here disclosed, will be treated as performance, and the conduct of the other party as excusing performance.

This is strengthened by the fact that since September 1896, plaintiif has liad no access to the press, and defendant has permitted it to stand exposed, unused and uncared for. Besides, when plaintiff offerred the test it had a corps of skilled employees ready to make it and till1 inventor of the press was present to superintend it. These conditions do not now exist, and, under'the circumstances, it would be inequitable and unjust to require plaintiff to prove the efficiency of the press by the required test.

If when defendant comes to make use of the press, inherent weakness or intrinsic defects should appear or develop, showing that when the press was completed and tendered, either from defective materials used or bad and unskillful workmanship, it was not up to the contract requirement, then -would defendant have a just claim against, plaintiff for reimbursement of the damage incurred in this behalf, and its rights in this respect will be reserved.

But from this should and would bo excluded any damage or injury to the press occasioned by the long period it had been permitted by defendant to lie idle, exposed and uucared for, and if the press should fail of satisfactory work because of these conditions defendant would have, no just claim against plaintiff.

The contract for the presses, while made in New York, was to be executed and consummated in Louisiana. The presses were to be erected and completed here, and there was a suspensive .condition in the contract, viz: — that- after completion a test, stipulated for in the contract, was to be applied here, and the acceptance of the presses by defendant was dependent on their performance measuring up to the requirements of the test. The presses and their appurtenances remained the property of the plaintiff and at their risk until -thus tested and accepted. lienee, the delivery of the presses was to be accomplished here.

The contract, therefore, must be held a Louisiana contract, and the presses -subject to the lien accorded by our law to the vendor. McIlvaine & Speigel vs. Legare et al, 36 La. Ann. 362; McLane vs. Creditors, 47 La. Ann. 135-141; 10 La. Ann. 728; 22 La. Ann. 418; 21 La. Ann. 412; 32 La. Ann. 1288; 38 La. Ann. 218, 574; Benjamin on Sales, Secs. 308, 319, 651.

Inasmuch as the contract was one contract for two compresses and their erection at a stipulated price in globo.for the two, upon which price $48,000 has been paid, leaving due a balance of $32,000, the vendor’s privilege is considered as extending to and operative upon both presses.

This brings us to the consideration of the damages claimed by defendant in reconvention.

We do not find that defendant was damaged by any inconvenience or loss in handling or pressing cotton. The last of the two compresses was completed in time for service when most needed during the season’s business of cotton compressing. The Bierce press, first completed, it seems, had ample capacity to meet the requirements up to the time when the second press was ready for service.

But we do find that while defendant should be required to take the Webb press and pay the price, it had just cause of complaint against plaintiff on account of the delays which did ensue in respect to its erection. The contracts with factors for the handling of over 300,000 bales of cotton made defendant justly solicitous that the Bierce compress erected by plaintiff, and two others of the same patent subsequently erected by W. W. Bierce, would not suffice for1 the season’s business. It concluded it needed another compress, and having canse to believe that the Webb compress under construction by plaintiff might not he completed in time for the season’s full business, a contract was made with Bierce for another of his presses.

While there may be force in plaintiff’s contention that this was error of judgment and bad business policy, the circumstances out of which sprang, in the opinion of defendant, the necessity for this purchase, are attributable to the laches of plaintiff, and all doubt, therefore, as to the advisability of the step must be construed against the latter.

This fourth Bierce press was not erected, and in April 1897 it was disposed of at an equal price to a Little Rock concern. But the evidence, we think, reasonably establishes that from the time this press was purchased, in July 1896, to the time of its sale in April 1897, a loss to defendant of four thousand dollars ensued by reason of the cost and expense of holding, handling and looking after the press, interest charges, etc.

The contract with Bierce for the press expressed $40,000 as its consideration, but it seems that he (Bierce) claimed and was allowed four thousand on account of the expenses referred to.

This sum, not being unreasonable, should be reimbursed defendant by plaintiff.

The assertion by defendant that this press was intended to be erected on the site of the Webb press, and it was not so erected because plaintiff held possession of said site, may have been all pretense, but the fact remains that in July 1896 defendant had grounds for believing that the Webb press might fail of erection in time for the season’s business, and it had, under the circumstances, sufficient justification for being forehanded in concluding iirrangonieiits for another press.

We think an equitable adjustment of the differences between the-parties would be to require defendant to take the Webb press and pay the balance of price due, less the four thousand dollars referred to.

It is, therefore, decreed that the judgment appealed from be-amended so as to read as follows:

It is ordered and adjudged that plaintiff do have and recover of the-New Orleans & Western Railroad Company and Charles B. Van Nostrand, in his capacity as Receiver of said Company, defendants, the-sum of thirty-two thousand dollars, with five per cent per annuminterest thereon from September 17, 1896, until paid, and that to secure this sum there is recognized as existing in favor of plaintiff the vendor’s lien and privilege on the "Bierce press and the Webb' press, with the boilers and appurtenances thereto belonging-, supplied and erected by plaintiff on the premises of defendant at Port Chalmette, Louisiana, under the contract of July 10, 1895, as-modified December 3, 1896; that said privilege be enforced as against said compresses, boilers and appurtenances; and that plaintiff be paid by preference out of the proceeds thereof.

It is further ordered, etc., that defendant do have and recover of plaintiff, on its demand in reconven ti oh, the sum of four thousand "dollars, with five per cent per annum interest thereon from (say)April 10, 1897, until paid.

It is further ordered, etc., that defendant’s right to claim reirq,burse- - ment for damages suffered should inherent weakness or intrinsic defects, resulting from either defective materials or bad and unskilled' workmanship, appear or develop within a reasonable time in 'said' Webb compress, be reserved to it,-as hereinbefore set forth; but this-stipulation in its favor is not to interfere with the due execution of this decree.

It is further ordered etc. that, as thus amended, the judgment appealed from be and is hereby affirmed, costs of -the lower court to bp^ borne by defendant, those of appeal by plaintiff.


text:
    No. 12,946.
    Herman Roehl vs. T. C. Porteous.
    Syllabus.
    Where two persons engage in a real estate speculation, paying in cash a small part oi the purchase price and giving notes purporting a solidary obligation for the remainder, and the venture proves unprofitable, the property is sold under foreclosure of mortgage for less than the sum due on the notes, and one of the joint purchasers pays the balance left over, the other is liable to him for his just share of the loss.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

    Buck, Walshe & Buck for the plaintiff and Appellee.

      .Omer Tille re for the Defendant and Appellant.
    Submitted on brief March 7, 1899.
    Opinion handed down June 19, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sues for $3186.22 on the following state of facts: ■

In -1892 defendant and himself engaged in the purchase of certain real estate on'joint account in the City of Birmingham, Alabama, from the Ely ton Land Company. The price of the property so purchased was $10,000. Of this sum $2000 was paid in cash, each of the purchasers contributing $1000. For the remainder notes purporting a solidary obligation on part of the makers thereof were given, secured #by mortgage upon the property purchased. Defendant failed to meet these notes or any part of same, princijial of interest, and failed to meet or pay new notes or any part thereof, with interest coupons, given in renewal of the first series of notes. The venture was a speculation in real estate which turned out disastrously. The property declined in value, and was sold at public sale under foreclosure of the mortgage for a price much less than the amount of the notes.

Being liable'for the full amount of the notes and unable to induce-defendant to pay his part of the same, plaintiff paid the balance due, principal and interest, and holds defendant liable to him for one-half of the net loss of the. venture, which is averred to be the amount herein claimed.

An exception of vagueness directed against the petition having been overruled, defendant answered with a general denial.

At the trial which followed, the court a qua rejected the demand of plaintiff and he appealed. This was in January, 1895. In December, 1893, this court handed down its decision on the then appeal. See 47 La. Ann. 1583.

For the reasons there assigned, the judgment was reversed and the case remanded. The purpose in remanding was to allow plaintiff to make proof on certain points indicated in the opinion.

It was tried anew in June, 1898, the additional evidence, to allow opportunity for the introduction of which the case was remanded as above set forth, was offered, as well as other testimony establishing plaintiff’s demand, and judgment followed in his favor for the full amount claimed.

Defendant appeals.

The case was submitted here without oral argument and no brief as to this appeal on behalf of defendant is filed. Neither 'have we been favored with any assignment of errors showing1 wherein the judgment appealed from is contrary to the law, or in conflict with the evidence adduced.

Our reading of the testimony and appreciation of the law applicable to the case serves to convince us of the correctness of the judgment, and, accordingly, the same is affirmed.

Monroe, J., recused.


text:
    No. 12,866.
    Mrs. Antoinette Thormann, Administratrix, vs. Theodore Broderick.
    Ryltabus.
    Where it appears that the matters at issue iu a cause pending before this court are involved in litigation arising in another State between, practically, the same persons, and such litigation so originating in the other State has been decided finally by the Supreme Court of that State and thence carried, by writ of error, to the Supreme Court of the United States, the decision of the cause here will be postponed to await the determination of the controversy by the Supreme Court of the United States, or its action on the writ of error.
    APPEAL from the Civil District Court for the Parish of Orleans; King, J.

      lih. Howard McCaleb for Plaintiff and Appellee.

      Much, Walshe & Bucle, Dari & Kernan for the Defendant and Appellant.
    Argued and submitted December 5th, 1898.
    Opinion handed down June 12th 1899.
   The opinion of the Court was delivered by

Blanchard, J.

Plaintiff brings this suit in the capacity of Administratrix of Joseph Eabacher, deceased.

After alleging her appointment and qualification as such, she avers it to be “among the duties and functions” devolving upon her as administratrix “to get in and collect all the debts due and owing thereto.”

She then sets forth that defendant is indebted to the succession in the sum of $7000, with interest and costs and attorney’s fees, by reason of two promissory notes, drawn to his own order and by him endorsed, each for the sum of $3500, which she avers to he due and unpaid and secured by mortgage on certain property in the City of New Orleans, which is described — which mortgage had been executed in favor of Joseph Eabacher, and any future holder of the notes.

She represents that although the ownership of the notes is vested in the Succession of Joseph Eabacher, the notes themselves are not in her possession, or under her control, but are outside of the limits of the State, having been removed by some unauthorized person in a-manner unknown to her, after the death of said Eabacher, and after their maturity.

Averring that she alone is authorized and vested with power to sue for, collect, receive and grant acquittances for the amount due on the notes, she prays judgment in her favor as administatrix against defendant for the sum due, with recognition of mortgage, etc.

On the face of this declaration the action seems plain and simple enough. But the record discloses that under its guise is presented the far-reaching question of conflict of jurisdiction between a State Court here and a State Court in another of the Commonwealths of the Union.

Joseph Fabacher died in New Orleans'on March 3, 1897. On the side of the plaintiff it is claimed he was, at the time, a resident of Louisiana and had been for many years. On the side of defendant it is claimed he was temporarily only sojourning in New Orleans at the time of his death, that his residence was in Waukesha, Wisconsin, and had been for about two years prior to his decease.

On the 27th day of March, 1897, a petition was presented to the County Court of Waukesha County, Wisconsin, by A. J. Frame, alleging the death of Fabacher, his residence at the time in Waukesha, his possession in that City of an estate in personal property of the value of $65,000 and in realty of $2500; that he left a last will wherein he named the said Frame as executor;-and that the family surviving -him consisted of his widow, Magdelina Fabacher, and eleven children, all of age, except two.

He prayed for the probate of the will and for letters testamentary to himself as executor.

Three days later, fo-wit: On March 30, 1897, the present plaintiff presented a petition to the Civil District Court, Parish of Orleans, alleging the death of Fabacher, that he was her father, that he resided in New Orleans at the time of his death and for many years before, that he left property within the jurisdiction of the Oourt, that she was the sole surviving heir and legitimate child of the deceased, issue of his union with her mother, Mary Frey, under a marriage celebrated in the year 1850, and that Mary Frey, subsequently, to-wit: — in January 1874, obtained a decree of divorce from her father. She represented she desired and was entitled to be appointed administratrix of iiis succession. She did not aver that the dead man left debts to be paid, nor did she aver he died intestate, though her application for appointment as administratrix proceeded upon that hypothesis.

She prayed for an inventory and appraisement, that an attorney for absent heirs be named, and for her appointment and confirmation as a cbninistratrix.

No one opposed her application and in April, 1897, a decreo appointing. her administratrix was entered. She qualified as such April 30, 1897.

An inventory was taken and the only property returned was a cemetery lot, tomb, etc., valued at $3500. It was claimed, however, that sonic furniture and household effects in a house on Calhoun street, Now Orleans, belonged to the deceased. An effort was made to inventory same. This was resisted by the widow on the ground that same belonged to her son. Subsequently, under the order of court, these effects were inventoried and appraised át $1381.70.

Shortly after becoming the administratrix in Louisiana, Mrs. Thormann appeared before the County Court in Waukesha, Wisconsin, and made opposition to the probate of the will there. This will Lad been made by Joseph Fabaeher in that State and pursuant to its laws. He had deposited same in a safe deposit vault in Waukesha, where it was found after his death, together with bonds of the City of New Orleans and other securities, constituting his personal estate, among them the two notes of Broderick forming the basis of this suit-.

In her opposition to the probate of the Wisconsin will, Mrs. Thormann, in her individual capacity, averred herself to be the daughter and sole heir of Joseph Fabaeher. She set forth the marriage of her 1 aronts, their subsequent divorce, charged the illicit connection of her father with Magdelina Frey, the birth of children of that union, all of whom, save one, were named as legatees in the will. She showed that after the divorce which her mother had secured, her father married Magdelina Frey and thereafter three children were born of the union, all of whom were named as legatees in the will. She alleged that continuously from 1843 to the time of his death, her father was domiciled in the City of New Orleans, was a Resident and inhabitant there, that in consequence the Wisconsin court was without, jurisdiction to probate the will, or in the matter of the settlement and distribution of the estate in Wisconsin.

She charged that the attempt on part of Joseph Fabaeher to acquire a domicile in Waukesha ivas made with a fraudulent purpose and intent of depriving her of her legitimate and horiditary rights as his sole heir at laiv.

She charged, further, “undue influence” over her father in the matter of the execution of his will, by Magdelina Fabaeher and other persons and beneficiaries, and averred the will ivas not executed in the manner and form required by laiv.

The will, itself, was dated October 29, 1890. Waukesha was the place of its execution, and the maker thereof declared himself in the instrument to be a citizen of Waukesha.

To Magdelina, whom he refers to as his “beloved wife,” he bequeaths the income from $20,000 four per cent New Orleans City bonds. To lus brother in Evance, an annuity of two hundred dollars as long as-he should live, and $100 additional at hi,s death to provide for his funeral expenses. The remainder of his property he bequeathed to ten of his twelve surviving- children, naming them, and they were to have, too, the $20,000 City bonds upon the death of his wife — she tobo paid the income from same during her life as above sot forth.

The decision of the County Court of Waukesha County, handed down Sept. 1, 1897, was against Mrs. Thormann on her opposition to the probate of the will. It held the instrument propounded for probate to he the last will and testament of Joseph Fabacher, that it was-duly executed in all particulars as required by law, that Joseph Fabacher, while dying in New Orleans, was, then, only temporarily so-jouncing there, that at the time of his death he was domiciled in and an inhabitant of the County of Waukesha, that he left personal estate in Waukesha to be administered of the probable value of $65,000, that he was of sound mind when he made the will, was competent to dispose of his estate, was under no restraint, and that the will is genuine and valid.

Its probate was ordered and Andrew J. Frame, who was named in the will as executor, was recognized as such. lie duly qualified aceordii.-g to the laws of that State, and letters testamentary were issued to him.

From this judgment Mrs. Thormann prosecuted an appeal to the Circuit Court of Waukesha County, where the issues were tried d& novo and before a jury as prayed for by -her.

On all tho grounds of contest advanced by her, the decision was, here, aUo against her. With regard to the place of residence of Joseph Fabacher, the court decreed he had acquired a domicile in Waukesha on the 20th clay of June, 1895, and continuously thereafter, down to the timo of his death, retained the same there. And the-court further decreed that prior to the making- of his will Joseph Fabacher had, on the 30th of September, 1895, and while so domiciled at Waukesha, duly and legally married, in the City of Milwaukee, Magdelina Frey, and had in his lifetime, and subsequently to said marriage, duly and severally recognized his children, the offspring of his. 'union with Magdelina Fray prior to the marriage aforesaid, and that they were, at the time of his death, his legitimate and duly legitimatized children and heirs at law. The decree also recognized Antoinette Thormann as a child of a former marriage and likewise an heir at law, and that while she and one of the sous of the second marriage were not .mentioned in the will as beneficiaries, or legatees, the omission was no! by mistake-or inadvertence on his part.

Frc.i this decision of the Circuit Court, the contestant, Mrs. Thormann, appealed to the Supreme Court of Wisconsin, and that tribunal did, on April 26, Rib, hand down an opinion and final decree affirming the judgment of 1he Circuit Court, with the exception that the court Feld the question of legitimatizing the children who were citizens'of Louisiana, born of the union of Joseph Fabacher and Magdelina Frey, prior I' their marriage in Wisconsin on Sept/30, 1895, was not ;uoperly involved in determining1 whether the will should or should not be admitted to probate. “True,” says the court on this point, “’the «ontestani presented that issue, and so the trial court determined the same against, her. But it was foreign to the probate of the will. While the Legislature of Wisconsin may properly regulate the status •of citizens of this State, we do not understand that it has any power to prescribe the status of citizens of other states. Cook vs. Cook, 56 Wis. 195; St. Sure vs. Lindsfelt, 82 Wis. 351; State vs. Ducket, 90 Wis. 276 Being a resident' of this State and domiciled therein, the testator had the legal right, under the law of Viscoiisin, to dispose of his property, real and personal, as he pleased, and to whom lie pleased, so long as he infringed tio law of the State. ITe Fad the legal right, therefore, to devise and bequeath his property to his children by name, as he did, whether they were legitimate or illegitimate. So far as the judgment in form attempted to legitimatize the adult children who resided in and are citizens of Louisiana, we must hold that it was extra-judicial and inoperatve.”

From this judgment of affirmance a writ of error on behalf of Mrs. 'Thormann has been applied for and granted by one of the Justices ■ .of the Supreme Court of the United States, and, accordingly, the-Wisconsin litigation over the Fabacher estate may be considered pending in that tribunal.

As the issues on the merits of the controversy now before us are Involved in the cause so pending, we have determined to permit the case at bar to rest undisposed of in this court until final decision is had in the Supreme Court of the United States.

In reaching this conclusion we are not to be understood as iiassing ¡upon, or in any way determining', any matter of assertion by plaintiff, •and of defense by defendant, raised herein, not involved in the merits ■of the Wisconsin litigation as the same is pending' before the Supreme Court of the United States. As to all such matters opinion is •reserved.

It is ordered, therefore, that the final determination of this cause be postponed to await the judgment of the Honorable the Supreme Court of the United States in the matter of the writ of error granted, on application of Mrs. Antoinette Thormaini, to the Supreme Court of Wisconsin in the cause entitled Andrew J. Erame et al., Respondents, vs. Antoinette Thormanii, Appellant, lately pending' in said Supreme Court of Wisconsin.


author: Nioholls, C. J. .Breaux, J.

text:
    No. 13,081.
    Mary E. Lawson and Her Husband vs. Robert J. Conolly.
    Syllabus.
    ' 1. A notarial act by which a father sells to his (laughter certain real estate for four thousand dollars , three thousand dollars cash and the balance represented by two notes of the vendee to her own order and by her endorsed, and secured by mortgage on the property sold, can not be set aside by the father on the ground of ingratitude and cruel treatment to him by his daughter, and that the act evidenced really a donation to her when the father has received and discounted the notes of the vendee with a third person. and the property itself has anterior to the demand for revocation passed into the hands of a purchaser in good faith. Civil Code, Article 3 562.
    2. A notarial act between father and daughter purporting on its face to be an act of sale to the daughter on terms partly cash and partly credit, represented by notes of the vendee secured' by mortgage on the property sold, can not be set aside by the father on the ground that the act evidenced in reality a donation to his daughter by which he had divested himself of everything he had, leaving himself nothing for subsistence, when the father has discounted the notes of his daughter to' a third person, and the property has passed to a third purchaser in good faith before the suit for annulment of ■.the act was instituted.
    On Reheakino.
    •One who sells property and declares in the deed that he has received ample consideration, is bound (in so far as relates to third persons) by his declaration ■ until he shows, in the manner required, and by proper .testimony, that the-asserted sale was without consideration and the declaration not in conformity -with the facts.

      A counter letter must be produced, or other'evidence duly filed, showing the unreality of the asserted sale.
    ON APPEAL from the Civil District Court for the Parish of Orleans, Righbor, J.

      Arthur McGuirlc and Ghretien & Robin for Plaintiffs, Defendants in reconversion, Appellees.

      Theodore Qobonio for Defendant, Plaintiff in Reconvention, Appelllant.
    Submitted on briefs June 2nd, 1899.
    Opinion handed down June 19th, 1899.
    Rehearing refused, (reasons assigned), June 30th, 1899.
   On application for rehearing by Breaux, J.

The opinion'of the court was delivered by

Nioholls, C. J.

On the 6th day of July, 1896, the plaintiff, wife of John Lawson, filed a petition in the District Court, in which she averred that she was the owner of a certain piece of property in Square No. 386, and that she acquired same from the Southwestern Building and Loan Association in November, 1892.

That she had had continuous possession of the same since 1892 and that sho had leased the same continuously and collected the revenues therefrom until the 30th day of June, 1896, when her tenants moved’ out of said property.

That before the said tenants had finished moving out of the premises her father, Robert J. Oonolly, moved into the premises and violently took possession of the same and prevented petitioner or her agent from entering the same and exercising her ownership and previous uninterrupted possession, and that he was still in possession of the same.

That she was entitled by her ownership to the possession of said premises and that she desired to have it so decreed.

That the proprety was worth more than two thousand dollars and the revenues of the same when rented were three hundred dollars per year.

That a writ of sequestration was necessary to protect her rights in the premises. She prayed for citation upon Robert J. Conolly and that there be judgment in her favor decreeing her as the owner entitled to the possession of said property, and that a writ of sequestration issue, directed to the sheriff, commanding him to take said property into his possession and collect any and all revenues therefrom, pending the suit.

The property was sequestered under orders of the Court.

On the 24th of December, 1891, defendant answered pleading h rsi the general denial.

He specially denied that plaintiff was the absolute owner of the property. He averred that the property belonged to the community of acquets and gains between defendant and his deceased wife; that he had. under the law, a right-of usufruct over the share of said community inherited by plaintiff from her mother, the wife of respondent, and he had never parted with, disposed of or alienated in any manner, shape or form his usufructuary rights. Assuming the position of plaintiff in reconvention, he averred that by act before Buisson, Notary, on October 21st, 1891, he had made a transfer to his daughter, the plaintiff, of defendant’s share in the naked ownership of certain real estate situated in the City of New Orleans, among- which was the property referred to in plaintiff’s petition.

That said properties belonged to the community between himself and his deceased wife, Mrs. Catherine Cronan.

That although said act before Buisson, Notary, was styled an act of sale, the truth is and was that said act was a donation 'in disguise; that no money consideration was ever paid to defendant- for said properties and said act had and could have had no other effect than a donation inler vivos, made by respondent to his daughter-. He further averred in reconvention that his said daughter had continuously for the past year been guilty of cruel treatment and of grievous injuries towards him, had refused him food, she knowing full well That ho was in distress, that he was advanced in years and had been suffering' with a disease of his eyes and was otherwise unable to earn .a livelihood, and although his condition was known to his daughter she liad refused to assist him and still refused to assist or provide for him, though he was in destitute circumstances.

That the cruel treatment, grievous injuries and refusal to provide food for him when he had donated to her all that he was possessed of, and the ability of his daughter and her husband to discharge their duties towards him, further made it necessary for him to ask for a revocation of the donation made by him to his said daughter.

That plaintiff in her. present suit was endeavoring to oust him from the shelter which he then had and to throw him out into the street.

In view of the premises he prayed that plaintiff’s suit be dismissed; that the writ of sequestration be dissolved with costs and damages, that there be judgment in reconvention in his favor revoking, annulling and setting aside the donation by him made to his daughter by the act before Euisson, the same as if said donation had never been made, and replacing him in reconvention in his rights of ownership in and to the said property as they were enjoyed by him prior to said act of donation. He prayed for general relief.

On February 25th, 1898, on motion of the attorneys for the plaintiff, on their suggesting that they were also then the attorneys of John J. Oastell, and that the plaintiff with the consent of her husband had sold the property referred to in her petition to said Oastell, mailing to him an absolute transfer and assignment of all her right, title, and interest thereto and interest therein, and that Oastell should bo made a party to the proceedings and should be placed in the rights and in the stead of the plaintiff, and should be in fact the plaintiff, it was ordered by the Court that said Oastell bo recognized as the plaintiff litigant in the proceedings as a party thereto.

On the same day upon motion of the said Attorneys acting for John J. Oastell, and on their suggesting that the defendant had failed to bond the property sequestered though ample opportunity had been afforded him to do so, the said Oastell was permitted to bond the same on a bond of Five Hundred Hollars, which was furnished and the sequestration released.

In May, 1898, defendant with leave of Court filed a supplemental and amended answer in which he declared that he averred and made part thereof all the facts and allegations- of his original answer and plea in reconvention.

That in his opinion the answer of the plaintiff would assist him in making; his defense and in support of his demand in reconvention and that it was necessary that his daughter be ordered to respond on oath to certain interrogations propounded to her annexed to this answer and that in default of her answering the same they be taken for confessed. •

The materiality of the answers for the purposes stated was sworn to by defendant’s attorney.

The Court on tlie same day ordered the plaintiff to answer the interrogatories and file the answers in the Clerk’s office not later than May 23th, 1898, and in default of her doing so, that the interrogatories be taken for confessed.

On the 23rd of May on motion of the Attorneys of Mrs. Lawson and on their suggesting that she had been ill and on account of said illness had not been able to make proper answers, and on suggesting that she desired further time to answer same and suggesting that she had not been granted under the order of the Court the delay allowed by law for citation to which she was entitled, she being a resident of the Parish of Tangipahoa, the Court ordered that an additional delay of ten days be granted to her to make answer to the interrogatories propounded and that she be reseawed all of her rights and exceptions and defenses in the cause. On June 6, 1898, on motion of defendant’s attorney suggesting that plaintiff had not answered the interrogatories propounded to her and that the delays granted By the Court for her doing so had expired, it was ordered by the Court that said interrogatories be taken for confessed.

On the 16th day of June, 1898, the attorneys of Mrs. Lawson, Plaintiff, moved to vacate the order of the Court taking the interrogatories for confessed, for reasons assigned, among others that the plaintiff had in point of fact answered the interrogatories on facts and articles at the time said ex parte order was granted (plaintiff had in point of fact answered the interrogatories on May 24th, 1898, and they were filed on June 6th, 1898, at forty-five minutes after eleven o’clock.)

On June Hilth, 1898, plaintiff’s attorneys moved to annul, vacate and set aside the order of the Court of May, 1898, ordering the plaintiff to answer interrogatories on facts and articles and excusing and dispensing her from answering, urging that it was granted improvidently and without warrant of law.

They averred that the reconventional demand set forth no legal or valid cause of action.

That plaintiff’s action being a possessory action pure and simple, even if said interrogatories were answered in the affirmative, they would be immaterial and irrelevant as being an attempt to try plaintiffs title in this proceeding which could not -be done herein.

That even if defendant’s reeonventional demand gets forth a legal or valid cause of action or if defendant could be permitted to attack plaintiffs title herein, said demand is barred by prescription.

On the 10th October, 1898, defendant filed another supplemental and amended answer and plea in reconven-ti on, in which he averred as an additional reason for setting aside tlie donation to his daughter that by and through said donation he had divested himself of all his property without reserving to himself enough for his subsistence and by law such a donation was inoperative and null.

lie further alleged that prior to the institution of the present suit his daughter had sold to third parties a portion of the property donated to her for Four Hundred Dollars and he was entitled to recover from her that amount with interest.

There is in the record a motion of the plaintiff (Mrs. Lawson) to set aside the judgment of the Court ordering the interrogatories propounded to her to be taken up for confessed on the ground that no proper service was made upon her.

That she lived out of the Parish of Orleans; that interrogatories -on facts and articles could -only be propounded to her under a commission directed to an officer having proper qualifications to execute same before whom the answers to these interrogatories could be propounded, that in this case no commission was asked or issued and that no answer could be given to said interrogatories unless under auauthority of a Commission issued from the Court.

That the party interrogated living out of the parish, the affidavit for the interrogatories should have contained the affidavit of the materiality of the evidence to be adduced and that no such affidavit was made by the party propounding the same. This motion was filed as of February 4th, 1899, doubtlessly erroneously, as at that time judgment of the Court in the case had already been rendered.

Defendant’s attorney on Nov. 28th, 1898, before the trial commenced, moved to strike out the answers from the record on the ground that they were filed too late after the legal delays had expired and an order of Court had been granted taking the interrogatories for ■confessed.

He asked contingently in the alternative that the answers to the 6th aud 7th Interrogatories be stricken out for the reason that the first of them had not been either denied or affirmed as required by law and the 7th interrogatory had not been answered, the declaration made as answer not being responsive to the question propounded.

Defendant assigned as further ground for striking out the answers that they were false and untrue as appeared by the record and proceeding's had in the succession of Mrs. Catherine Conolly of the Docket of the District Court and especially the judgment of Court putting the defendant, the surviving spouse in community, and the plaintiff, Mrs. Lawson, as heir, in possession of the property, in the proportion therein stated.

He made said judgment and proceedings part of his motion. He further objected that the answers were not sworn to and there was no jurat or affidavit to the truth of the facts stated.

No action seems to have been taken by the Court up to that time either upon this motion or those made by the plaintiff relative to the subject of the interrogatories on facts and articles propounded.

The case seems to have gone to trial without any action upon this particular motion.

When defendant undertook to offer evidence plaintiff objected, on the ground that an exception had been filed to the effect that the re-conventional demand of defendant showed no cause, of action and was inadmissable in an action like the present which was a possessory action pure and simple; that the evidence sought to be adduced would be in support of an attack upon plaintiff’s title, which could not be brought in issue in this case. The Court overruled the objection on the ground that the plaintiff had virtually waived the exception as to the right of defendant to raise an issue as to ownership and had consented to the trial of the same.

To this ruling plaintiff reserved a bill.

On defendant’s offering in evidence the interrogatories on facts and articles propounded to plaintiff and the order of Court taking the same for confessed, plaintiff objected upon the ground set up in her various motions on that subject which had not yet been acted upon, and called upon the Court to pass upon the same, and determine the same and whether the order taking the interrogatories for confessed should stand or be set aside.

The Court overruled the motions and objections as going to the effect, and plaintiff’s counsel reserved a bill of exception. The District Court rendered judgment in favor of John J. Oastell, decreeing’ him to he the owner of the property and entitled to the possession thereof and maintaining and perpetuating the sequestration.

It further dismissed defendant’s reconventional demand at his costs.

In his reasons for judgment the judge said: “I have taken this case too long under advisement and have given it a more than usual patient and attentive consideration. Strongly enlisted as my human sympathies have been in behalf of a very old man in great need and' in great affliction, who honestly believes himself to have been badly’ treated by his daughter, on full consideration of all the evidence, oral and documentary, Buisson’s notarial act bearing with it a generous' liberality by a father to his child — perhaps an imprudent liberality— seems to me properly an act of sale as it imports, and not a donation.

“As to the revocation of the act, should it be looked upon as a donation, I do not think there is sufficient evidence either of ingratitude or of that self divesture of all means of support which the law requires.”'

Defendant appealed.

Opinion.

Plaintiff’s action against defendant as brought is a possessory one.

She avers that being in possession of the property described in her ■ petition on the 30th of June, 1896, and having been so continuously since November, 1892, when she acquired the property from the SouthWestern Building and Loan Association, the defendant on the 30th of June violently took possession of said property just as certain tenants of hers who had been occupying the premises were leaving, but before they had fully vacated the same, and prevented the plaintiff’s agent from taking possession of the same.

After this petition was served and before defendant answered, the plaintiff sold the property to one John J. Castell, for three thousand dollars, he paying the plaintiff “five hundred dollars cash and furnishing his notes for twenty-five hundred dollars with special mortgage granted, and vendor’s privilege reserved on the property bought, to pay said notes. There existed at the date of said purchase an outstanding mortgage and vendor’s privilege in favor of the South Western Building and Loan Association amounting to sixteen hundred and seventy-six dollars, and which the purchaser took up and paij.

One William Renaudin intervened in the act of sale as being the last holder of the promissory note for five hundred dollars payable two years after date, executed by the plaintiff to her own order and endorsed and delivered by her to her father when she acquired the property from him, who declared that said note had been paid and presenting the same to the notary before whom the last sale was made, authorized and required him to have the mortgage securing-said note erased from the record.

Castell on becoming the owner of the property under this act made-himSelf a party plaintiff, in plaintiff’s suit.

Defendant in his original answer filed after this action was taken,, after pleading; the general issue, substantially-admitted having taken possession of the property, but justified -his having- done so upon the-ground that the property belonged to the community of acquets which had existed between himself and his deceased wife, Catherine Cronan, and at her death vested in himself and the heirs of his wife.

That he had usufraetuary rights as surviving husband of which he had not divested himself, that what purported to be a sale to plaintiff of his interest in this particular property by act before Buisson,. was not really such but a disguised donation. That since said donation was made and within a year of the institution of her suit, his-daughter had been guilty of cruel treatment and grievous injuries to him; that although he was in distress and destitute circumstances, advanced in years and suffering with a disease of the eyes which prevented him from earning his living; his daughter, though well knowing his condition, had refused him food and refused to assist or provide for him.

That his daughter was, through the suit brought, attempting- to oust him from the shelter which he then had, and to throw him out into the street. That he was entitled to have the donation made by himself' to his daughter i’evoked and annulled and to have himself replaced in his rights of ownership of said property as if said donation had not' been made; his right of possession and enjoyment recognized, and the-sequestration set aside. Defendant did not claim in this answer that the transfer to the daughter was a simulation. He averred that the-act vras in reality a donation to the daughter, and he assumed practically that if in point of fact his daughter after the donation treated' him cruelly or refused him food, the effect of such conduct -was to rendes’ the donation absolutely null and void and to entitle him at once-to‘take possession of the property.

Defendant’s position in this matter, assuming- the act before Buisson to have -been a donation as claimed was- incorrect for two reasons, first because as between the parties themselves the question whether the daughter had really been guilty of cruel treatment of her father and had refused him food, was matter in pais to be established by evidence and until established the donation would stand; and second, because in this particular case, before the defense was set up, the rights of third parties intervened. Defendant’s counsel seeks to break the force of this last ground by invoking the provisions of Art. 2453 of the Civil Code and Act No. 3 of 1818, but at the time of the sale to Castell, no direct suit for the revocation of the donation for ingratitude had been brought nor had such a claim been yet asserted by way of reconvention. It’ is not claimed that 'Castell, the purchaser, was in collusion with the plaintiff, or had -any knowledge of what defense would be made. As matters stood the sole question in the suit ■was oue of possession. Article 1561 declares that revocation for in.gratitude affects neither the alienation made by the donee nor the mortgages nor real incumbrances he may have laid on the thing given, •provided such transactions were anterior to the bringing of the suit of revocation.

The second defense set up by defendant, that the act before Buisson was in reality a donation to his daughter and that by the donation he had divested himself of all his property and means -of support, was made at a still later date -and introduced new issues in the case. We will refer to this defense later.

After Castell.had purchased the property and had become a party -.to the suit Conolly propounded certain interrogatories to 'his daughter.

The third interrogatory sought to establish that at the date of her mother’s death, September 30, 1890, plaintiff had no means or moneys, and the fourth, that all the means wh-ieli plaintiff had was ■ that which her mother left her.

In the fifth interrogatory plaintiff was asked whether it was not true that on the 21st of October, 1891, the date of the Buisson act, or at any time prior to that date, she did not have in her possession or under her control, the sum of three thousand dollars.

In the sixth interrogatory she was asked whether it was not true that she had not given, paid or handed over to her father the sum of three thousand dollars in cash on the 21st of .October, 1891, and in the seventh she was asked to declare when, where and from whom she liad gotten the money, if she stated that she had made such payment.

A considerable part of the briefs of parties is taken up in discussing whether the interrogatories in question eou'ld ever have rightfully been propounded to the plaintiffs; whether they were ever served on her; whether she was called on to answer them; whether she had answered them in time; whether they should or should not have been taken for confessed, and whether the judge’s order to that effect was or was not correct; whether the answers actually made to the interrogatories should be considered or not. There is no real necessity for discussing or passing upon these questions, for, whether we disregard altogether both questions and answers, or whether we consider the questions asked as having been confessed, or whether we" consider the questions as actually answered; the result of thp issues in this case would be the same. It will be seen, however, that the interrogatories were propounded to Mrs. Lawson after she had disposed of the property and after a third party had become the owner thereof with no ■charge of fraud or simulation directed against him and as against whom even a counter letter would have no effect (O. C. 2236); also that while the original order of the court directed the plaintiff to answer the interrogatories and file her answers not later than on the 25th of May, 1898, in the clerk’s office, yet the court on the 23rd of May, granted her an additional delay of ten days “to answer” without fixing a day for the filing' of the same, and that she did in point of fact answer on the 24th of May, though the answers were not filed until after the expiration of the delays “to answer.” Whether or not she conceived that she was directed simply to answer within the extension and not ordered to file the answers -within that time, wo do not know, nor do we need now determine whether in a proper case the delay would have been fatal. Littlejohn vs. Cox, 15 Ann., 67.

In granting the order of extension, the court reserved to plaintiff “'all her exceptions and defenses.” We do not think that in the decision of any of the various motions made in respect to the interrogatories on facts ancl articles that the question of waiver or estoppel would have or should have played any part. The plaintiff entered a timely exception to any issue being raised in the ease other than one as to possession and right of possession and the interrogatories asked did not bear upon that issue.

Leaving the rights of Castell entirely out of view and giving to the defendant the full benefit of considering the interrogatories propounded by him to the plaintiff as having been confessed, they would only go to show that at the time of the act before Buisson, between the father and herself, she bad no means other than the property left her by her mother and that she had not the means to pay and did not in point of fact pay the three thousand out of the four thousand dollars declared to be the price of the property purchased.

The fact would still remain that she did at that time execute her two notes to her own order, -and by her endorsed, secured by mortgage and vendors privilege on the property, and did deliver the same to her father, who negotiated and received the money upon them from a third person.

It can scarcely be claimed that under such conditions the act before Buisson evidenced a donation pure and simple. She was already the owner at that time, by right of inheritance and under the will of her.mother, of one undivided third of the property and unquestionably bound herself and her property to the extent of the two-notes.

It is claimed that part of the money so received by the father was made use of 'afterwards by him for the benefit of his daughter. That may be true as a fact, but it would not change the legal character of the act.

While for the purpose of discussing we have considered the situation simply as between father and daughter, there are, in fact, other interests involved which would control the judgment in this ease adversely to defendant, no matter bow it would of cohld have been decided with no parties concerned other than the original parties to the suit.

After the plaintiff had become owner of the property under the terms o-f the Buisson act, she evidently entered into the South Western Loan and Building Association, and that association, as is customary in corporations of that kind, caused her first to transfer the property to it and subsequently resold if to her under retention of a vendor’s privilege, and mortgagS for money loaned her.

It was this mortgage which was' outstanding a.t the time of the sale to Castell, and which Castell took up. The defendant has not offered to restore the amount of the notes negotiated by him and which indications point to as haying been paid either by the South "Western Building and Loan Association itself or by plaintiff, or by Oastell.

Under such conditions it would be impossible for defendant to set aside.the act even were we to view it as a donation, pure and simple, from father to daughter, and though the testimony should have established beyond question'acts of ingratitude and cruelty of the latter to her parent.

We think it just to the plaintiff to say that we reach the same conclusion on this point that the district court did.

We think the defendant has exaggerated 'his supposed wrongs. The daughter doubtless has not been as forbearing nor as kind to her father' as she should have been to one so close in blood to her, one so old and seemingly in trouble and distress, but that is something other .-and different from what the defendant charges. The last ground of attack urged by the defendant was set up in an amended answer which -does not appear to 'have been filed with leave of court. The attack is upon the ground that the act between himself and the plaintiff was not only a donation to her but a donation of all he possessed.

If the act had been on its face an act of donation and the fact had been such as defendant claims it to have been, it may be that the donation could have been set aside even to the prejudice of third parties who had purchased the property, but with the act standing as it did inofessedly as an act of sale with terms fixed partly for cash and partly for notes of the purchaser,- secured by special mortgage and vendor’s privilege on the property purchased, the ostensible vendor placed it out of his power to advance as against parties who dealt with the apparent vendee on the strength of the public records, that the act was not one of sale but of donation and a donation •of all the donor’s property.

We are of the opinion that the judgment of the district court is correct and it is hereby affirmed.

On Application for Rehearing.

.Breaux, J.

Defendant and appellant complains of an error in the court’s opinion in stating that the transfer of the property defendant claimed (in his reeonventional demand) was made prior to the defense set up in behalf of Oastell, who bought it from Mrs. Lawson.

Defendant charges that not only the property was .transferred by his daughter, plaintiff, to Castell after his reconventional demand set' ting up his right to the property had been filed, but that in addition, Castell, the purchaser, had full knowledge of the defendant’s claim and in consequence took the property cum onere.

We readily grant that defendant is in the right as to date, i. e.r that the reconventional demand in question was filed on the 24th day of December, 1897, and that the transfer and sale by Mrs. Lawson to Castell was only made on the 14th day of January, 1898.

There remain, however, ample grounds to compel us to decline to grant the application here made for a rehearing, without considering questions relating to the date of transfer and sale relatively to the-date of filing of defendant’s plea in reconvention.

In meeting defendant’s averment that 'it appears of - record, that Castell had knowledge of defendant’s claim, we state that Castell onlv became a party to the suit in February, 1898. The record does not disclose that prior to that time Castell had any knowledge of the fact that defendant laid claim to the lot which he bought from plaintiff, Mrs. Lawson.

We read the testimony again, and did not discover that Castell, the purchaser, prior to his purchase and prior to his becoming a party to this suit in February, 1898, for the purpose of protecting his title, had any knowledge of defendant’s claim.

While we do not wish to lessen the force of the law, (Statute 3 of 1878) which renders null a title made after a suit has been brought for the property, which the defendant and vendor undertook to sell if the sale be decreed null between plaintiff and defendant, we doubt very much if a vendee can be made to return property sold, because in the course of a litigation, a defendant, incidentally, as it were, files a plea in reconvention, claiming- the property, which he himself had sold, and the title to which he himself caused to be placed of record, unless the vendee had some knowledge of tb" -'laim in some way.

Rut bo that as it may, we pass to the -next ground in matter of defendant’s claim for a rehearing, that is, the consideration vel non of the Sale whereby the defendant chose, as relates to notice on the public records, to divest himself of his title in favor of his daughter.

Defendant sought to probe the conscience of plaintiff by propounding to her interrogatories on facts and articles. She answered among other things, that the property belonged to her; that she gave good consideration therefor.

These answers were made in time, before an officer duly -authorized, but were filed too late in court.

The interrogatories were taken pro confessis. Here there is some question about the ruling of the district court taking them for confessed.

We think that the district court’s ruling was in accordance with the requirement of the code of practice, and that the interrogatories were properly taken pro confessis.

In effect, taking the interrogatories for confessed, proves that plaintiff, who was defendant’s vendee, had no money at the time she became the vendee of the property, and that she did not pay to her father the three thousand dollars the deed declares were paid by the daughter to the father.

We turn to the sale, and from its declarations, we are informed that the consideration it sets forth consisted of four thousand dollars, three thousand dollars cash, and for the remaining one thousand dollars, purchaser furnished two promissory notes, for the sum of five hundred dollars each, made payable respectively at one. and two 5-ears. The notes were by the effect of transaction between plaintiff and third persons satisfied and paid.

After plaintiff became the owner in .1891, she conveyed the property (in 1892) to the Southwestern Building and Loan Association’ and the same 5-ear re-acquired by conveyance from that association.

It follows that tlie association was vendor’s author.

lie, Castell, the purchaser, paid five hundred dollars and furnished notes for the remainder.

The interrogatories taken for confessed were filed on the 18th day of Hay-,'1898.

The order to plaintiff to answer was given the same day.

It follows that the order to havo them taken pro confessis must have, been given after that time.

Y 0 have seen that the sale by defendant to plaintiff was made in January, 1898..

If a counter letter had been taken by defendant as vendor of the property, it could only have had effect as to third persons from the time chosen b5r him to let it be known in manner required that he held it. The same rule, we take it, should govern here. It became evident (if evident at all) 011)5- on the day that the order was made to-have taken for confessed plaintiff’s answer to interrogatories on facts cand articles that the father had claims on the property.

From that day only, in our judgment, Castell, vendee, party to the suit, could be held bound as having been duly notified.

Moreover, we have a second time read the evidence admitted without objection, and have not arrived at the conclusion that plaintiff’s title was as void of all consideration as defendant contends.

Further, those who, having confidence in their children, place deeds of record, conveying' title to them, even if without full consideration, must be held to the principle governing registry. Third persons can take for granted the verity of a vendor’s declaration transacting with his own daughter, until the contrary is made manifest by sufficient evidence.

Rehearing refused.