author: MORENO, Judge ad hoc.

text:
    No. 13,841
    Orleans
    IACCUZZO v. COLE
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    Ellender & Ellender, A. M. Suthon, Julian G. Prendergrast, of New Orleans, attorneys for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendant, appellee.
   MORENO, Judge ad hoc.

This is a suit by Joseph (or Gio) Iaccuzzo against Dr. Christian G. Cole as indorser on a note of the Myrtle Grove Sugars, Incorporated, in the sum of $1,750, together with 7 per cent interest from the date of the note, February 25, 1929, and for attorney’s fees. There was a judgment in favor of the defendant, dismissing the suit of the plaintiff as of non-suit. From this judgment plaintiff appeals.

Plaintiff alleges that he is the holder and owner for value and before maturity of the note in question, executed by the Myrtle Grove Sugars, Inc., by Dr. Cole as president, payable to its own order, and by it indorsed, and which note was further indorsed Dy Dr. Cole individually. The terms of the note make Dr. Cole liable to the same extent as the Myrtle Grove Sugars, Inc.

The defendant answered, admitting the execution of the note, but pleading a want of consideration. Respondent alleged that the plaintiff had been declared a bankrupt and that Charles A. Ledet had been named ag his trustee; that “the Myrtle Grove Sugars, Inc., had purchased from the said Charles A. Ledet, Trustee, certain cane belonging to the bankrupt estate,” which had been frozen and was to be manufactured into sugar by the Myrtle Grove Sugars, Incorporated, “and to be paid for or not, according as the results of the manufactured product should determine its value.” He further alleged that the cane, was received and ground as a matter of accommodation and on condition that the manager of the Myrtle Grove Sugars, Inc., should determine the value of the cane after its manufacture.

Defendant alleges that on the date on which the note was executed, Mr. Ledet ■told Dr. Cole that if the Myrtle- Grove Sugars, Inc., would give a note for $1,750, payable in ninety days and indorsed by Dr. Cole, that Mr. Ledet could raise sufficient funds to discharge the bankruptcy proceedings against Mr. Iaccuzzo. The respondent says that the note was given with the distinct understanding .that it was to serve only for the banking purposes of the parties and would be returned to the factory “if it should be determined that the manufactured product of .the frozen cane would not bring the amount of the said note,” and that subsequently the manufactured product, because of the frozen condition of the cane, proved to be valueless.

The defendant thereafter filed a plea of estoppel, reserving the benefit of a plea of res adjudicata, ■ which was never filed. The • plea is based upon the fact that Mr. Iaccuzzo filed suit in the Seventeenth judicial district court for the parish of Terrebonne against the Mrytle Grove Sugars, Inc., for $983.83. .In that suit Mr. Iaccuzzo alleged that he had shipped to the defendant cane of the value of $2,650.83 and “that on or about' February 25th, 1929, a partial payment, aggregating the sum of Seventeen Hundred and fifty dollars ($1,-750.00) was made to him through Charles A. Ledet, Trustee, with the understanding that the remainder would be paid shortly thereafter; and with the further understanding that .the matter of final settlement would be adjusted by the manager of the defendant company, the said Charles A. Ledet, Trustee, and some third party.” The suit was for the difference between the total value of the cane and the note of $1,750.

There was judgment against Mr. Iaccuzzo in favor of the Myrtle Grove Sugars, Inc., and on appeal to the Court of Appeal, Second Circuit, this judgment was affirmed.

It is clear from the very reading of the facts upon which the plea of estoppel, which is more in the nature of a plea of res adjudicata, is made to depend that it is not well founded. ■ The suit, which is made the basis of the plea, is one by the present plaintiff against the Myrtle Grove Sugars, Inc. Dr. Cole was not a party to that suit, so that the first element required for the plea of res adjudicata is ’ lacking since the parties are not the same. It is equally clear that neither the thing that was the subject of the controversy nor the nature of the relief . prayed for is the same. In this suit, Mr. Iaccuzzo was .suing not for the $1,750, the ■ amount of the note, which is the subject ; of this suit, but for the value, of the cane above that amount which he alleged had : been delivered to the Myrtle Grove Sugars, . Inc. The plaintiff in that suit distinctly recognized that he had been paid in part for the cane delivered to the Myrtle Grove Sugars, Inc., by the giving and the receipt of the note of $1,750. His very petition shows that he was not claiming any part of the $1,750, since he specifically : gave credit for that amount to the Myrtle Grove Sugars, Inc., and sued merely for the balance. The facts are . so clear and ■ the principles are so elemental that the citation of authority is hardly required to say that the plea is without merit.

There is a sharp conflict in regard to the conditions under which the note was given by Dr. Cole to Mr. Ledet. The latter contends that upon the basis of the prices paid for the sugar cane of like quality as that sold by the plaintiff to Myrtle Grove Sugars, Inc., there was, on February 25, 1929, due Mr. Iaccuzzo $2,650. He says he requested Dr. Cole to execute the note on behalf of the corporation and to indorse it because of his knowledge that the note could not be used without that indorsement. He says that it was agreed that if it should develop that the value of the cane delivered to the corporation was less than the amount of the note, that Dr. Cole would be refunded the difference, and that if there was any dispute regarding any amount due by the corporation above the $1,750, it should be referred to arbitration.

Dr. Cole, on the other hand, contends that the note was given purely as an accommodation in order to permit Mr. Ledet to compromise with the creditors of Mr. Iaccuzzo, and to discharge the bankruptcy proceedings. Dr. Cole evidently has in mind the use of the word “accommodation” in its generally accepted sense of doing something to help some one out of a difficult situation and not the use of the word in its legal signification with regard to negotiable instruments.

The evidence satisfies us that the note was not given without consideration and was not given purely to enable Mr. Ledet to use the note at the bank, but that, on the contrary, it was given in discharge of an indebtedness due by the Myrtle Grove Sugars, Inc., and was intended to create on the part of Dr. Cole an obligation to pay the note. The giving of the note was in the nature of an advanced payment before the exact amount of the debt due by the Myrtle Grove Sugars, Inc., to Mr. Iaccuzzo had been "ascertained, but nevertheless was intended to discharge pro tanto that obligation.

This conclusion finds, support in the testimony of Dr. Cole as follows:

“I only agreed to give this note provided he would promise me that, if the note covered — if the amount of the note was .more than what the arbitrators would finally determine the cane was worth, why, he would hold in his possession as trustee in bankruptcy sufficient funds to protect me in the matter, and would refund such funds to me, and any overplus that might be paid.”

Mrs. Topping, vice-president of the Myrtle Grove Sugars, Inc., who was present when the note was given, also says that the note was given with the understanding that if the amount of the note was greater than the debt due to Mr. Iaccuzzo, there Would be a refund of the difference between the note and the debt. And Mrs. Cole, the wife of the defendant and the treasurer of the company, also present at the giving of the note, says that “there was something supposedly due him on the cane,” and as they had not been able to arrive at a definite figure, the note was given as an advance against the amount due, “and it was done with the distinct understanding that, if he was overpaid, there would be a refund on it, and, if there was any more due, that he would make good the difference on it.”

The evidence clearly establishes that the note was given in discharge of a debt, with the condition that if there was an overpayment there would he a refund to Dr. Cole. The note was therefore not an accommodation note' by which plaintiff was enabled to use the credit of Dr. Cole, but, on the contrary, Was given in discharge of an obligation due. There Was unquestionably a consideration for the note, so that the defense of lack of consideration passes wholly out of the case. However, the case has been treated as if lack of consideration and failure of considera1 tion, either in whole or in part, are synonymous terms in the law. Even giving the defendant the benefit of the confusion in the defenses, the defense of failure of consideration in part cannot prevail.

Sections 24 and 28 of the Uniform Negotiable Instrument Law (Act No. 64 of 1904) provide as follows: <

“Sec. 24. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”
“Sec. 28. Absence or failure of consideration is a matter of defence as against any person not a holder in due course; and partial failure of consideration is a defence pro tanto, whether the failure is an ascertáined and liquidated amount or otherwise.”

Under these sections of the law, -it is clear that Dr. Cole having admitted the execution of the instrument, there arose a presumption that it had been issued for a valuable consideration. In order to escape the effect of the obligation, it was incumbent upon him to prove either the absence or failure of consideration. The consideration for the execution of the note was the discharge of a debt for the cane furnished by the plaintiff and if the value of the cane did not amount to $1,750, the burden of showing that fact and the extent of the failure of the consideration was upon the maker of ’ the note. Shaffer v. Bond, 129 Md. 648, 99 A. 973; Williston on Contracts, vol. 2, pp. 21-29; Footnote 96; Revised Civil Code, art. 2232.

To the same effect is Brown v. King, 7 La. App. 570, holding that the burden of showing want of consideration for a note executed by the defendant lies on him and that he must establish it by preponderance of the evidence. The court said:

“The judge was of the opinion that the burden was on the defendant to establish his defense and that his testimony alone was not sufficient to tip the scales in his favor. He was right. Livaudais’ Heirs v. Fon, 8 Mart. (O. S.) 161; Friedmann & Co. v. Houghton and Ingram, 21 La. Ann. 200; Dwyer v. Woulfe, 39 La. Ann. 423, 1 So. 868; Kearney v. Succession of Whitehead, 34 La. Ann. 530; In re Yowell, 118 La. 28, 42 So. 635; Teutonia Bank & Trust Co. v. Buhler, 137 La. 5, 68 So. 194; (Delaney v. Wilcox), 1 Orl. App. 15; (Gambino v. Forrestier), 12 Orl. App. 318; 1 La. Digest 86.”

This rule has also been recognized and applied in Irving v. Edrington, 41 La. Ann. 671, 6 So. 177; Teutonia Bank & Trust Co. v. Buhler, 137 La. 5, 68 So. 194; Delaney v. Wilcox, 1 Orl. App. 15; Breaux & Bonin v. Campbell, 1 La. App. 356; Mercantile Adjustment Agency v. Palmisano, 2 La. App. 443; Brown v. King, 7 La. App. 570; Hibernia Bank & Trust Co. v. Champagne, 8 La. App. 664; City Sayings Bank & Trust Co. v. Goodman, 156 La. 106, 100 So. 66.

The defendant in this case has failed to establish that the value of the cane was less than $1,750. It is true that he says that the cane was valueless, but that is a mere expression of opinion without any specific facts to warrant the court in accepting that statement. The record shows that Louis M. Dill, the manager of Myrtle Grove Sugars, Inc., was familiar with the condition of the cane which was delivered, but he was not called as a witness. Since he was within the control of the defendant, who was the president of the corporation, and was available as a witness, there naturally arises a presumption that if he had been called as a witness that his testimony would not have tended to support the contention of the defendant.

In view of the fact that there is no evidence of a serious and substantial nature to show that the value of the cane did not amount to $1,750, the defendant has failed completely to establish his defense of failure 'of consideration either in whole or pro tanto, and, consequently, the defense must fail.

The judgment of the lower court is accordingly reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, Joseph (or Gio) Iaccuzzo, and against Christian G. Cole, in the full amount of $1,750, together with interest at 7 per cent from February 25, 1929, until paid, with 10 per cent attorney’s fees on principal and interest.

WESTERFIELD, Judge, and DUNBAR, JR., Judge ad hoc, participating.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,704
    Orleans
    QUINN v. FIRST EVANGELIST BAPTIST CHURCH
    (July 1, 1931. Opinion and Decree.)
    Wisdom & Sokolsky, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff brings this suit against the First Evangelist Baptist Church for three months’ salary at $100 per month, for services rendered as its pastor during the months of June, July and August, 1930.

The defendant church denies liability upon the ground that plaintiff was dismissed following a hearing upon charges involving immoral conduct preferred against him.

There was judgment below in plaintiff’s favor as prayed for, and defendant has appealed.

Under the charter of the church, its pastor holds office during “good behavior.” The government of the church is vested in a “Board of Eight Trustees including the pastor and seven deacons.” “Seven members of said Board shall constitute a quorum.” The members of the board of trustees are elected yearly by a two-thirds vote of the congregation after thirty days prior notice given by the pastor by verbal announcement from the pulpit. They hold office until their successors have been nominated and qualified.

On June 16, 1930, at a meeting at which only six members of the board were present, Quinn, himself, being absent, a resolution was adopted condemning Quinn upon the ground that, in the hearing of a suit against his wife for divorce, the court had found that Quinn was guilty of perjury and fraud. No. 139821 C. D. C., Quinn v. Brown, 159 La. 570, 105 So. 624. Thereafter on June 21, 1930, an injunction was applied for in the civil district court for the parish of Orleans for the purpose of preventing Quinn from acting as pastor of the church, and from interfering with religious services. The resolution of the board of trustees adopted on June 16th, the minutes of which meeting were attached to the petition, was the basis of the injunction suit. An exception was filed on behalf of Quinn, in which the authority of those purporting to act for the church was questioned, and the validity of the resolution, adopted at the meeting of June 16th, assailed upon the ground that no quorum was present. The exceptions were maintained, and the suit was dismissed. No. 187899 C. D. C.

On July 12, 1930, three days after judgment had been rendered in the injunction suit referred to, another suit (No. 187465 C. D. C.) was instituted against Quinn by the same individuals who had filed the first suit. A temporary restraining order was issued, and a final injunction prayed for against Quinn to prevent him from acting further as pastor of the church. This second suit was excepted to upon the ground that quo warranto and not an injunction suit was the proper procedure in which to test title to office. The exception was overruled and an answer to the merits filed, in which it was denied that Quinn had been legally dismissed. This second suit was tried on August 15, 1930, and it resulted in the discharge of the rule nisi, and a denial of the injunction upon the ground that up to that time Quinn had not been properly dispossessed of his office. In this suit, as in the first, no appeal was tahen.

In the meantime, on June 30, 1930, at an apparently legal meeting of the board of trustees, confidence in Quinn was expressed, and the action of the members who participated in the meeting of June 16, which had adopted a resolution dismissing Quinn from office, condemned. There was also a meeting held on July 10, 1930, in which there appears to have been a quorum present, and at that meeting a resolution was adopted approving the action of the informal meeting of June 16, and again dismissing Quinn.

It is quite evident that a considerable number of the members of the First Evangelist Baptist Church were dissatisfied with their pastor, and we might add that this spiritual leadership and celestial guidance was materially affected by a lack of confidence on the part of a large number of members of‘ his congregation ih the morality of his conduct and general fitness for his pastoral duties, a lack of confidence which, in all fairness it must be conceded, was not wholly without justifiable cause. However that may be, the question for our decision is whether, as a matter of fact, Quinn was dismissed in accordance with the charter, under which the church which employed him operated.

In so far as the action of the meeting of June 16th is concerned, the failure to have a quorum present was fatal, and the resolution discharging Quinn of no effect. But the meeting of July 10th, at which-there was present a legal quorum, and at which meeting Quinn was again discharged and the proceedings of the informal meeting ratified and approved, seems to us to have been more effective. .The objection to this meeting urged by counsel for plaintiff is based solely upon the ground that no proper notice thereof had been given. We find, however, that the meeting had been announced from the pulpit by the chairman of the board of trustees, which is the method pointed out in the charter of defendant for giving notice of meetings of £he¡ board of trustees.

We are of opinion, therefore, that Quinn was discharged as a result of that meeting, and that from that date he ceased to function as the pastor of the First Evangelist Baptist Church, and was not entitled to the emoluments of his office from that day forward. The record indicates that no salary had been paid Quinn since May, consequently he should receive' $100 for June, and $33.33 for July.

For the reasons assigned, the judgment appealed from is amended by reducing the amount of the judgment from $300 to $133.33, and, as thus amended, it is affirmed. The costs of this court to be borne by plaintiff and appellee, and those of the lower court by defendant and appellant.

MORENO and DUNBAR’, JR., Judges ad hoc, participating.


author: PER CURIAM.

text:
    No. 13,784
    Orleans
    SCOTT v. S. BASKOWITZ & SONS, INC.
    (July 20, 1931. Opinion and Decree.)

      (No Byllabus)

    St. Clair Adams, Jr., of New Orleans, attorney for plaintiff, appellee.
    Thos. E. Furlow, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO REMAND

PER CURIAM.

Appellant moves the court to remand this case to permit the retaking of the testimony of Miss Mamie Robbins, H. Brathman, Leslie Moses, and of Joseph Noto, the deputy sheriff who signed the return on the citation. This testimony, it appears, though taken upon the trial of the case, was not transcribed.

Appellee objects upon the ground, chiefly, that this testimony, adduced some three years ago, could not be reproduced as it was originally administered because of the fact that it involved dates and incidents which it would be difficult accurately to recall, after the lapse of such a long interval.

It seems to us that the interest of justice will best be subserved by remanding the case for the purpose of having the testimony retaken, and, in considering the effect of it, proper allowance can be made for • the circumstances under which it is re-administered. In the meantime we will retain this appeal, pending the taking of the testimony, for subsequent action when the evidence shall have been filed in the transcript. See Layman, Receiver, v. Sternberg & Stern, 2 Orl. App. 224; In re Pettis, 114 La. 870, 38 So. 590.

For the reasons assigned it is ordered that the parties litigant be relegated to the court a qua for the purpose of taking the testimony of Miss Mamie Robbins, H. Brathman, Leslie Moses, and Joseph Noto, the deputy sheriff who signed the return on the citation, and that such evidence be forwarded to this court in due course. All costs to await the final determination of the cause.

WESTERFIELD, J., MORENO and DUNBAR, Judges ad hoc, participating.


author: LeBLANC, J.

text:
    No. 808
    First Circuit
    SUCCESSION OF PREMEAUX IN RE NORTH AMERICA LAND CO., INC.
    (June 30, 1931. Opinion and Decree.)

      Pujo, Bell & Hardin, of Lake Charles, attorneys for plaintiff, appellant.
    Vance E. Plauche, of Lake Charles, attorney for defendant, appellee.
   LeBLANC, J.

-The North America Land Company, Inc., instituted this proceeding by rule against the administrator of the succession of Oda Premeaux, an order having first been obtained directing the latter to show cause why he should not apply to the court for an order to sell the property of the estate in order to pay debts.

Plaintiff in rule alleges that it is a creditor of the succession, being the holder of five promissory notes of the decedent, Oda Premeaux, dated December 15,- 1917, and due on the 1st of December of each of the years 1922, 1923, 1924, '1925 and 1926. It is specifically alleged that the said notes represent the balance due on the purchase price of a tract of land which is described as being the E. % of the S. W. % of Sec. 35, Tp. 10, S., R. 7 W. and are supported by a vendor’s lien and privilege according to a written contract, which, it is averred, is attached, with the said notes, to' another suit referred to by number only. In paragraph 2 of the petition, plaintiff alleges further that there is a balance due on the principal, interest, and taxes under the said contract of $1,-795.52, on which amount there is further due also S ' per cent interest from March 1, 1930, and 10 per cent attorney’s fees. It is noted that, the prayer of the petition is that the administrator be ordered to apply to the- court for authority to sell the property of the estate, without referring to any particular property.

Inasmuch as the inventory of the property belonging to the succession of Oda Premeaux, which had been taken in April, 1919, showed that the estate consisted only of personal property with the exception of the interest in the contract referred to in the petition of the plaintiff in rule herein, all of the property besides being inventoried as community property, and in view of the fact also that the record shows that all of the personal property had been •turned over to the widow of the- decedent, and her second husband, according to an account presented by the dative tutor c-f her minor children, it was* a most reasonable thing for the administrator to assume that the only property that plaintiff in rule meant for him to apply for the sale of was the property described in his petition and on which it was alleged there was a vendor’s lien and privilege to secure the payment of the balance of the purchase price. The administrator took the position that the contract of which this property was the subject-matter was merely a promise of sale and that the succession had no title thereto. He accordingly answered the rule by averring facts to that effect and showing that an application by him for the sale of the property would be a vain and useless proceeding, as the succession could make no valid and logal transfer thereof.

The lower court sustained the administrator’s contentions and rendered judgment recalling the rule and discharging him therefrom. On application for rehearing, the plaintiff argued, as we learn from the opinion of the trial judge, that its rule for' an order to sell property did not limit the administrator to any particular property, but referred to all property of the succession, including its-rights under the contract with the land company, and that the rule should be made absolute to the extent at least that the administrator be ordered to sell those rights. The lower court, in this opinion on rehearing, held that the rights of the succession under the contract had been forfeited and none could be' transferred. It accordingly reinstated its former judgment, and this appeal was taken.

The contract involved in this case' was entered into on December 15, 1917. The original party to the agreement with the decedent, Oda Premeaux, was the North America Land & Timber Company, Limited, which later transferred all of its rights thereunder to the present plaintiff in rule, which .also became the transferee, by indorsement of the notes described in the petition.

The contract is a lengthy document which in effect is merely a promise of sale. By its terms, the land company, in consideration of the stipulations therein contained, “agreed to sell” to Oda Premeaux the property which is described in detail. Premeaux covenanted and agreed to pay a certain price, so much in cash and to give so many notes with fixed maturities and bearing interest. The contract contains a stipulation as to how the sale shall be made, and specifically' provides that “no right, title, or interest whatsoever, is to vest in the said party of the second part (Oda Premeaux) in and to any of the real estate aforesaid, otherwise than asi a mere occupant or tenant at will of said party of first part <The Land Company), prior to the passage of an act of sale in manner and form as aforesaid. * * *”

Contracts of the nature of. the one herein involved have in some recent cases received the consideration of the Supreme Court which held that they constituted a mere agreement to sell and not a sale. We satisfy ourselves by quoting from one of the latest, Pruyn v. Gay, 159 La. 981, 104 So. 536, 538:

“The language of the contract in question is ‘I hereby agree to sell.’ It is distinctly understood that this promise is made upon the following conditions:
“ ‘First that the contemplated purchaser shall pay all taxes a.nd assessments of any kind that may be due on said property before they become delinquent.’ ‘The failure of said purchaser to make said payments when due shall ipso facto,'without demand or putting in default and as a penalty nullify and abrogate this contract.’
“It is clear from this language that the parties did not intend a sale, transferring title to the property, until after the payments had been made in pursuance of the terms of the contract.
“It is also clear that they intended that a deed should be executed after the payments had been made.
“It is immaterial that defendant went into the possession of the property immediately after the execution of the contract and remained in possession.
“While the sale of personal property is complete between -the parties by their mere consent, and as to third persons by delivery, yet the case is different as to real estate.
“‘Neither consent, nor delivery, nor payment of price suffice to transfer the ownership; there must be a deed translative of the title.’ Triehel v. Home Ins. Co., 155 La. 462, 99 So. 403.
“The court also said in the Triehel case:
“ ‘Our conclusion is that any agreement for the sale of real estate, which is not intended to be the final writing between the parties, but on the ■ contrary, to be followed by another and final deed, is a mere promise of sale, and not a sale, and does not transfer the title to said property; unless it clearly appear that the parties contemplated that the new deed should be only a confirmation of the first, and not indispensable for the transfer of title.’
“See, also, Campbell v. Richmond Insurance Co., 156 La. 455, 100 .So. 679.
‘‘The contract in this case is clearly a mere agreement ito sell and not a sale.”

There are no disputed-facts in the present case, and it is therefore conceded that there never had been any formal act of sale as contemplated under the contract executed between the parties thereto. We therefore conclude, as did the Supreme Court. in the eases cited, that there existed between them only a promise of sale under which title to the property was never transferred.1* If Oda Premeaux never had title to the property, it is obvious that his succession could transfer none should it attempt to sell it in order to pay debts.

But counsel for plaintiff in rule .now stresses before us the contention that the succession can, on proper order of court, be made to sell the rights which it has in the contract, and that the administrator should be made to do so. The latter on the other hand urges that the succession has no longer any rights under the contract, the same having been forfeited at the option of the land company, and that a sale of such rights would transfer nothing to the purchaser. These contentions lead us to a consideration of the forfeiture clause in the contract, a mere reading of which is sufficient to satisfy us, without much comment, of its sweeping provisions, and leaves but little . doubt as to the result produced by the failure or default of the one who had agreed to make the payments as stipulated in the contract to do so punctually. The clause is too long to be here quoted in its entirety, but suffice it to say that, by its terms, time and punctuality are material and essential ingredients of the contract, and, in case of the failure of party of the second part (Oda Premeaux) to make the payments under the strict terms and times stipulated, the contract is to become utterly null and void, and all of his rights thereunder shall cease, and the right of possession and all equitable and lawful interest in the property shall immediately and ipso facto revert to and revest in the party of the first part (the land company) without any declaration of any forfeiture or act of reentry.

It is not disputed that there was such default on the part of Premeaux, and, if the forfeiture clause in the contract means anything, it would seem that the plaintiff in rule has been reinvested with all rights of possession and of interests of any other kind in the property, and in addition thereto is entitled to all payments of every kind whatsoever made by Premeaux, including those for taxes, improvements placed on the property and all others, as. a liquidated penalty. Can it be said now, moreover, to have a claim as a creditor for the amount of the notes that remain unpaid? We think not. It would hardly be just and equitable to hold that it owned the property, could collect and retain the penalties, and over and above that be entitled to the purchase price? too.

But counsel for plaintiff in rule vigorously contend that there has been a waiver of the forfeiture clause by their acceptance of delayed payments in the past, and that they are yet entitled to the right of specific performance which is granted to either party to a contract of this kind under article 2462 of the Civil Code. In considering this point, we have to again refer to the case of Pruyn v. Gay, supra, which we note went to -the Supreme Court on a writ of review from this court. See 2 La. App. 787.

In that case, the vendor was seeking to have the contract between himself and the party who had agreed to purchase the property canceled, on the ground that it had been forfeited by the prospective buyer who was always in arrears in making his payments. As a defense, the latter urged that there had been a waiver of the forfeiture clause by the vendor who had accepted payments before and after they were due, without complaint. The lower court held with the plaintiff and ordered the cancellation of the contract and its erasure from the public records. That judgment was at first affirmed by this court, but on rehearing, it, as well as the original judgment, were both reversed, and it was held that the vendor’s action in receiving payments in sums less than the amounts stipulated, and made long after the expiration of the time fixed for payment, must be regarded as an absolute waiver and renunciation of the stipulations of the contract concerning its forfeiture. On review of the case, the Supreme Court, however, reversed the judgment of this court, and held, according to the syllabus, that an agreement to sell land, which stipulated that delay by the purchaser in making payments should ipso facto and as a penalty abrogate the contract, in which especially there was a provision that time was of its essence, was legal and enforceable, in view of Civil Code, articles 1901, 1911 and 2117. The following quotation is from the body of the opinion:

“The contract in this case is not reprobated by law. Article 1911 of the Civil Code expressly provides that:
“ ‘The debtor may be put in default in three different ways: By the terms of the contract, by the act of the creditor, or by the operation of law:
“ ‘1. By the ternis of the contract, when it specifically provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.’
“The present contract so provides. It also declares that:
“ ‘The failure of said purchaser' to make said payments when due shall ipso facto, without demand or putting in default, and as a penalty nullify and abrogate this contract.’
“ ‘A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation.’ R. C. C. art. 2117.
“The primary obligation assumed by the defendant in the present contract was the payment, when falling due, of each installment of the purchase price.
“Time is expressly made the essence of the contract. Necessarily, the idea or intention that defendant might obtain a further delay for the performance of his obligation to make the payments is excluded.
“ ‘Agreements legally entered into have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith.’ R. C. C. art. 1901.”

In the case before us, it is true that the situation, in relation to the parties to the contract, is reversed, and we have the vendor urging the waiver of the forfeiture clause, and seeking the enforcement of the contract. But is not the effect of the clause the same regardless of which party to the contract wishes to avail himself of it?

Counsel, however, pursues the ma.tter yet further and invokes article 2124 of the Civil Code as giving plaintiff in rule the right to enforce performance of the contract. The article reads as follows:

“The creditor, instead of exacting the penalty stipulated from the debtor, who is in default, may sue for the execution of the principal obligation.”

Under its provisions alternative remedies are granted to a creditor against a debtor who is in default, and who is bound by a penal clause. There seems to be contemplated a situation, however, where the penalty is not yet paid, as the alternative remedy of. suing for the execution of the principal obligation is given “instead of exacting the penalty stipulated.” Being alternative rights, clearly the creditor could not be entitled to both the penalty and the execution of the principal obligation.

Let us, however, for the sake of the argument, give to both Civil Code articles 2462 and 2124 that interpretation the most favorable to the plaintiff in rule, and the question still remains: Is this the proper form of proceeding which its purported rights are to be enforced under them? We must bear in mind that this proceeding is one instituted by a rule on the part of one who alleges himself to be a creditor of a succession to have the administrator sell its property in order to pay debts. By the very terms of the contract on which it relies, plaintiff’s status as a creditor is very doubtful. It would seem, therefore, that the rights of the parties under the agreement could hardly be established in the form in which the issue is now presented. Plaintiff in rule may have some remedy, but we are of the opinion that it cannot get the relief it is seeking in this proceeding, and can only obtain it in a suit properly brought against the succession.

We believe that the lower court was correct in dismissing the present proceeding and in discharging the administrator from the rule, and its judgment is therefore affirmed.

ELLIOTT, X, dissents from that part of the opinion which holds that there had been no waiver of the forfeiture clause in the contract of sale between the North America Land & Timber Company, Limited, and Oda Premeaúx.


author: PER-"CURIAM.

text:
    No. 855
    First Circuit
    SUCCESSION OF STEIDTMAN IN RE PONCHATOULA BANK & TRUST CO. v. HOFFMAN
    (June 30, 1931. Opinion and Decree.)

      W. W. Cornish, qf Ponchatoula, attorney for plaintiff, appellant.
    Burns & Pierson, of Ponchatoula, attorneys for. defendant, appellee.
   PER-"CURIAM.

Charles Frederick William Steidtman departed this life leaving a widow, Beatrice ' Tucker Steidtman and two children, Lucille Beatrice Steidtman Hoffman, widow of Frederick A. Hoffman, and Ruth Edna Steidtman, a minor, both born of his marriage with Beatrice Tucker, said children being his sole heirs. Mrs. Lucille Beatrice Hoffman, nee Steidtman, his eldest daughter, was appointed administratrix of his estate. It was valued in the inventory at $1,869 and consists, according to the inventory, of movable property only. ’

Ponchatoula Bank & Trust Company, a creditor of the estate to the extent of $1,800, alleges that the movable property inventoried is not sufficient to pay the succession debts. . That decedent left a half or community interest in and to the dwelling and improvements on lots 13 and 14 in square 59 of the town of Ponchatoula, La., not inventoried.

That Mrs. Beatrice Steidtman, nee Tucker, widow of the decedent, the record title holder of said property, is indebted to said estate in the amount of the actual value of said decedent’s interest in said property. It ruled the administratrix into court to show cause why the dwelling and improvements on said lots should not be included in the inventory, and applied to the payment of the debts.

The administratrix appeared and excepted to the procedure by rule:

(1) On the ground that there is a nonjoinder of parties defendant, the widow and heirs of the decedent being necessary parties defendant. „

(2) That the subject-matter of plaintiff’s petition cannot be tried and determined summarily; that the procedure by rule is improper and unwarranted in law.

(3) That plaintiff’s petition contains two separate and inconsistent demands, and it. should be required to elect between them.

(4) No cause or right of action.

The lower court did not rule on the question of non-joinder, nor on the • ground that the subject-matter of the petition cannot be tried summarily, etc.

It referred the exception of no cause of action to the merits, and required plaintiff in rule to elect between its demand to have the dwelling or the value of same inventoried, whereupon the plaintiff in rule elected to proceed against the administratrix, to have the value of half of the improvements placed ou the inventory as a claim against the widow.

The administratrix then answered under reserve of her exceptions, denying plaintiff’s averments on the subject, and averring that the dwelling and improvements on the property in question were the separate and paraphernal property of her mother, Beatrice Tucker Steidtman, and not the property of the estate of the decedent.

The administratrix is primarily the representative of the creditors of an estate and, as the aim of the rule is to affect the ownership of a dwelling erected on land of which Mrs. Beatrice Tucker Steidtman is the ostensible and record owner, she should have been made a party to the proceedings. A judgment making the present rule absolute could not accomplish anything, because she is not a party to the proceeding. We hesitate to act on the case.

However, as the lower court did not rule on the exception of nonjoinder, the situation is the same as if none had been filed. And as the administratrix put at issue the merits, and the court, acting on the merits, rejected the demand of the plaintiff in rule and the plaintiff has appealed, we have decided to consider and pass on the merits of the matter as between the parties before us.

The evidence shows that lots 13 and 14 of square 59 of the town of Ponchatoula belonged to Mrs. Beatrice Steidtman, widow of the decedent, as her separate and paraphernal property before the dwelling in question was erected thereon. The only question is whether the dwelling and improvements erected on the lots, after she had acquired title thereto, were erected - and paid for by her with separate and paraphernal funds, under her administration and control, or were same erected and paid for by the community of which the decedent was the head and master.

Mrs. Beatrice Tucker Steidtman was not called on as a witness. The main witness in the matter is the administratrix, and other testimony introduced by her. According to the testimony on the subject, the dwelling and other improvements on the two lots in question were erected by her mother, with separate and paraphernal funds belonging to and under the separate administration and control of the mother.

Mr. Steidtman, the father, supervised the work of construction, the purchase and payment of the material, employment and payment of workmen, and may possibly have done some part of the work. But all the evidence on the subject indicates that all funds used in paying for the material, and in paying workmen employed in erecting the building, were furnished by the mother from her separate funds and estate, and that no part of improvements were furnished or paid for by the husband or by the community of which he was the head and master.

The evidence indicates that Mr. Steidtman and the community of which he was the head and master had no funds with which to build the house, and did not contribute anything to the work. See Dillon v. Dillon, 35 La. Ann. 92, and Kittredge v. Grau, 158 La. 154, 103 So. 723.

The lower court, acting on the merits of the case, held that the dwelling on the lots in question was the separate and paraphernal property of Mrs. Beatrice Tucker Steidtman, and did not belong to, nor form part of, the estate of Charles Frederick William Steidtman, and rejected the demand of the plaintiff in rule.

The judgment appealed from is correct.


author: TALIAFERRO, J.

text:
    No. 3554
    Second Circuit (Second Division)
    CREDIT ALLIANCE CORP. v. CENTENARY COLLEGE OF LA.
    (July 16, 1931. Opinion and Decree.)

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

On May 2, 1924, I. M. Clark, bursar of Centenary College of Louisiana, signed a written contract with the Grid Graph Company of Columbus, Ohio, whereby that company, agreed to sell, and did sell, according to the terms of the agreement, to the college, one No. B. Grid-Graph score-board (for football only with advertising board), the price of which was $1,350, payable as follows: $300 December 1, 1924, $500 December 1, 1925, and $550 December 1, 1926. To represent these payments, notes were executed to the seller and delivered, signed as follows: “Centenary College by I. M. Clark, Bursar.” Contemporaneous with the signing of said agreement and the notes mentioned, a supplemental agreement was signed by the seller and by Clark as bursar, providing that the college, at the end of the year 1924, had the right to return the purchased property to the seller, forwarding charges prepaid, and in the event this was done the $300 due December 1st would be forfeited to the vendor, but otherwise the contract would he terminated and the two notes not matured would be surrendered back to the college.

The score-board was. shipped to and received at the college in due time and during the football season of 1924 was used twice. The note of $300 was paid at or about maturity, and thereafter Mr. Clark, bursar, advised The Grid Graph Company that the college would avail itself of the option in its favor providing for the return of the board at the end of the year and requested return of the unpaid notes. The right of the bursar to return the scoreboard was not questioned by the company, for on January 19, 1925, it wired Clark not to return it and to await letter being mailed. The letter ' requested that the matter be held in abeyance pending the' arrival of the company’s, representative; that to return the board would be an added expense and some arrangement would be made whereby it could be used. The matter remained in this status until November 30-, following, when Mr. Clark, as bursar, wrote the company, quoting former correspondence between them on the subject, and closed by asking why the two notes had not been returned pursuant to agreement. In this letter mention is made of the fact that the note maturing December 1st, prior, had been placed in a bank for collection. On December 3d the Grid Graph Company, by J. A. Howenstein, wrote Mr. Clark acknowledging receipt of his letter of November 30th, advising that the company had gone through receivership proceedings and its assets had been purchased by the writer of the letter. In this letter it is stated that all the negotiable paper the company could secure had been pledged to several banking houses in the East, and, so far as could be ascertained, the notes inquired about (those sued on) had been sold to the Mutual Finance Company of Baltimore, Md. On January 9th this finance company wrote to Mr. Clark about the note then past due, informing him of its intention to enforce payment of the note by suit if not promptly paid. On April 30, following, the Federal Credit Bureau, Inc., of New York City, wrote defendant that its client, plaintiff in this suit, had turned over to it for immediate action both of the notes in com troversy. The college declined to pay the note then due and after the second note matured on December 1, 1926, this suit was filed by the Credit Alliance Corporation to enforce payment of both notes.

Plaintiff alleges itself to be the holder and owner of said notes for valuable consideration, before maturity, and without notice of any defect therein or defense thereto.

Defendant admits that plaintiff is the holder of the two notes sued on, but denies that the notes were acquired before maturity for value and without' notice of defects; also admits, the signature on the notes to1 be genuine as written, but denies that they are its notes. It is admitted that-1. M. Clark signed the notes as bursar, but it is averred that he is not an officer or director of defendant college, and was not authorized to execute said notes or bind defendant thereon.

Defendant avers that “it is an eleemosynary institution organized for the purpose of educating the youth of the country; thaj; it is not a business corporation, has never been engaged in business and that no one is authorized to bind the corporation as is alleged in this case.”

The answer contains other matters of defense to plaintiff’s suit, but, in view of the conclusions arrived at by us, no useful purpose will be served by making mention of them.

The lower court rejected plaintiff’s demands and dismissed its suit. Appeal is prosecuted from this decree.

Plaintiff does not seriously contend that the bursar of Centenary College is vested with authority to bind that institution for the payment of notes he might execute and issue in its name, but strenuously asserts and earnestly argues that inasmuch as the score-board was received by or at the college, used by it, and the note of $300 due December 1, 1924, paid, all to the knowledge of its- president, Dr. Sexton, the lack of authority of the bursar has been cured by ratification, impliedly at least, thus making the notes the binding obligations of the college.

Defendant’s answer to this argument is that there has been no ratification by it; that even though its president had the knowledge of the facts imputed to him by plaintiff, yet this would not render the unauthorized notes valid and binding obligations of the college; that only its. board of trustees could bind it in such matters.

We concur in this position of defendant and are quite certain the law sustains it.

Mr. Clark’s position with defendant is that of head bookkeeper, but was referred' to and called its bursar. He had no authority to make purchases, for the college, except for books included in its annual budget,

Executing and issuing negotiable instruments for a corporation, such as defendant is, is more than an administrative function. Such is not an inherent power of any corporate officer and may only be vested by corporate action either expressed in its charter or by its, board of directors in regular proceedings. If this were not true, it is obvious a corporation would be at the mercy of- its officers and agents and exposed to financial ruin at all times as a result of their bad judgment, dishonesty, or fraud.

Article 438 of the Civil Code states that as a corporation is an intellectual being it is necessary that it appoint some of its members to whom the direction and care of its affairs may be entrusted, under the name of mayor, president, etc., according to the statutes and qualities of such corporation, and article 439 reads:

“The attorneys in fact or officers thus appointed by corporations for the direction and care of their affairs, have their respective duties pointed out by their nomination, and exercise them according to the general regulations and particular statutes of the corporation of which they are the heads.
“These attorneys or officers, by contracting, bind the corporations to which they belong in such things as do not exceed the limits of the administration which is intrusted to them; their act is supposed to be the act of the corporation.
“If the powers of such attorneys or officers have not been expressly determined, they are regulated in the same manner as those of other agents.”

Defendant is an eleemosynary institution, governed by a board of trustees. Act No. 63 of 1871.

The nature and extent of the authority of the officers of a corporation, after once being defined by corporate action, involves, and in general is controlled by, the law of mandate, or agency. Though the chief executive officer of a corporation may he designated president, chairman, etc., yet, in reality, when acting for the corporation his capacity for all legal intents and purposes is that of agent.

“The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter.” Civ. Code, art. 3010.

The power of an agent to buy and sell, • and to execute notes on behalf of his principal, must be special and express. Civ, Code, art. 2997; Folger & Co. v. Peterkin, 39 La. Ann. 815, 2 So. 579.

Agency, 2 C. J. 636:

Par. 280: “Commercial paper, such as bills, notes and checks, passes, current to a limited extent like money, and . accordingly power to an agent to execute and endorse it is to be strictly limited, and will never be lightly inferred, but ordinarily must be conferred expressly.” Citing Hills v. Upton, 24 La. Ann. 427; Nugent v. Hickey, 2 La. Ann. 358; Avery v. Lauve, 1 La. Ann. 457; Lafourche Transp. Co. v. Pugh, 52 La. Ann. 1517, 27 So. 958.

“A signature by ‘procuration’ operates as notice that the agent has but a limited authority to sign, and the principal is bound only in.case the agent in so signing acted within the actual limits of his authority.” Section 21, Act No. 64 of 1904. Uniform Negotiable Instrument Act.

One dealing with an agent, or other person in a representative capacity, is bound to look to the extent of his powers. He is required to do this for his own protection, and if he neglects to use due precaution in this respect he acts at his own risk and peril. The very fact that one signs ah instrument as agent or president, or employs other descriptive designation, is notice that such person is vested with limited power beyond which he cannot bind his principal.

“The principal is hound to execute the engagements, contracted by the attorney, conformably to the pow;er confided to him.
“For anything further he is not bound, except in so far as he has expressly ratified it.” Civ. Code, -art. 3021.

So, therefore, when the Grid Graph Company dealt with t,he bursar of Centenary College and accepted the notes signed by him for it without using ordinary prudence to ascertain the extent of his powers, it did so at its- own risk, for most assuredly it had impressive knowledge that it was dealing with one ordinarily without power to sign notes for his principal. When plaintiff examined these notes and observed that they were signed by the bursar for the college, whose duties, it is- well and generally known, are not executive, but clerical, they were put on guard with respect to the extent of the powers of the bursar and were required to investigate such powers to the end .that they might not acquire commercial paper, issued without due authority. Courts are insistent that one dealing with an agent shall inquire whether' he has sufficient authority, when such agent assumes to make or endorse negotiable paper.

Dr. Sexton, president of defendant college, as a witness, stated that the first time he saw the notes sued on was when presented to him while testifying; that he only knew the notes had been issued when the bank in January, 1926, notified him that it held the note of $500 for collection; that the score-board was not used by the college but by the students and other people interested; that he made no objection to its use and “knew the general conditions under which i,t was gotten, nothing to object to, -knew that no obligation rested on the college, knew the arrangement by which it was gotten.”

Even should it be conceded that Dr. Sexton, as president, had the authority to ratify the unauthorized acts of the bursar and thereby commit the college to the discharge of these notes, and that his- actions and conduct with regard to the whole affair amounted to such ratification, still we do not think the ratification accomplished the effect contended, for by plaintiff, for such was done without full knowledge of all the material facts involved in the original transaction between the bursar and the selling company. We think this would be true even had the board of trustees ratified the agreement without knowledge that the notes were issued and outstanding.

We quote the following excerpt from Owings v. Hull, 9 Pet. page 629, 9 L. Ed. 246:

“No doctrine is better settled, both upon principle and authority, than this — that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.”
“The voluntary execution of a contract, with the full knowledge of the grounds upon which it might he rescinded, amounts to a ratification of it, and involves a renunciation of the means and exceptions that might have been opposed to it.” Syllabus in Marigny v. Bank. 5 Rob. 354.

The converse of the proposition is equally true. If one acts without full knowledge of the material facts, the ratification is not binding.

It is not shown that Dr. Sexton, in his capacity as president, had authority to issue binding notes in the name of the college, and in the absence of proof to that effect it cannot be assumed that such authority was reposed in him. If he was not vested with such power by the trustees, tben it follows as a consequence that he could not ratify the unauthorized acts of the bursar and thereby obligate the college for any amount.

The record does not disclose who paid the $300 on -the score-board, nor how it was paid. Dr. Sexton states that the board was used by the students and others interested in .it. This hoard was purchased at a time when football spirit and enthusiasm . at Centenary College ran high. It is probable the move to purchase the board originated with the student body and the athletic directors, but the evidence does not affirmatively disclose such to be true.

Counsel for plaintiff cite many cases where the principal was held to have ratified the unauthorized acts of his agent, but in practically all of these cases the principal was an individual,' not a corporation, which only acts by and through its managing directors or trustees.

It is also urged upon our attention that the college failed to repudiate the unauthorized act of its bursar, after learning of same, as it was required to do under the law, and therefore must be held to have approved such acts. An officer of plaintiff testified that his company acquired these two notes on a date long prior to that on which Dr. Sexton knew they were in existence. Any formal step repudiating the bursar’s actions would have been an idle gesture. The status of things had been fixed. However, refusing to pay the notes on demand because of their unlawful issuance seems to us. a most definite repudiation of the bursar’s unauthorized issuance of the notes in the name of the college.

Having reached the opinion that the notes sued on are not the obligations of defendant, and that the issuance of same has not been ratified and approved by the board of trustees of Centenary College, it becomes unnecessary to pass upon other defenses raised by the pleadings and argued in briefs.

For the reasons herein assigned, the judgment appealed from is hereby affirmed.


text:
    No. 4076
    Second Circuit (Second Division)
    BODCAW LUMBER CO. OF LA., INC., v. WALKER, JR., ET AL.
    (July 16, 1931. Opinion and Decree.)

      White, Holloman & White and A. L. Burford, of Alexandria, attorneys for plaintiff, appellee,
    Breazeale & Hughes, of Natchitoches, attorneys for defendants, appellants.
   TALIAFERRO, J.

Plaintiff brings this suit in jacitation against the heirs of T. A. Walker, deceased, to-wit: T. A. Walker, Jr., Mrs. J. H. Pumphrey, and Mrs. J. S. Washburn, alleging ownership and possession for- more than ten years of W% of SW% of section 19, township 13 N., R. 7 west, containing 80.00 acres in .Natchitoches parish, and- prays that defendant be ordered’ to disclaim any title whatever to said land, or to assert such rights as they may have therein. That it purchased the land June 27, 1906, according to deed recorded in Conveyance Book 118, page 399, parish of Natchitoches. In the alternative, should defendants show a legal chain of title to the property, which plaintiff denies they have, in that event plaintiff pleads the prescription of ten years in bar of defendants’ rights in said property. Plaintiff avers that its possession of said land has been continuous, open, peaceable, and undisturbed, in good faith, for more than ten years, except for the slander thereof by defendants, and was exercised by cutting timber thereon, by building a tram-road across same, and by the payment of taxes; and finally prays to be recognized as owner of the land, and quieted in the possession of same.

Defendants aver that their father, T. A. Walker, deceased, purchased said land from T. S. Gibbs on January 11, 1900, according to deed recorded February 21, 1900, in Conveyance Record Book No. 102, page 298, of Natchitoches parish; that on his death, a few years past, they inherited same as his sole heirs; that deceased had the open and public possession of the land while living, and respondents have likewise possessed same since his death; that such possession by their father had been disturbed or interfered with only twice- — once by a sawmill company cutting the timber thereon, which respondents aver, they were informed, was done by plaintiff, for which timber, plaintiff, or one of its vendors, A. R. Johnson, paid, amounting to $400; and once by another person cutting ties from the land for which $65 was collected as the value of the timber thus cut and used; that if plaintiff did not cut said timber it was well aware that respondent’s father claimed said land and timber and called upon its vendors, Johnson and Weaver, to pay the value of the timber cut, and which was full knowledge to plaintiff of Walker’s title and, therefore, plaintiff is estopped to file this suit for slander of title, which is specially pleaded.

Defendants specifically deny plaintiff’s asserted ownership and possession of the land involved, and aver that plaintiff is without right in law to charge that respondents are guilty of slandering its title, and denies that such has been done.

They pray that plaintiff take nothing by this suit, and its demand be rejected at its cost.

The district court maintained plaintiff’s plea of prescription of ten years, recognized its ownership of the land sued for, and quieted its possession thereof. Defendants have appealed.

Defendants, by asserting title in themselves to the land described, converted the suit into a petitory action, fully tendering the issue of ownership, and carried the burden of proof, making it necessary that they depend upon- the strength of their own title and not upon the weakness of the title of plaintiff. 6 La. Digest, Slander of Title, page 763.

“The defendants elected to convert the action into a petitory one, by setting up ownership to the property involved in the litigation and testing their claims to the same contradictorily with the plaintiff. On that issue they carried the burden of proof, having to rely upon and depend for success upon the strength of their own title, and not the weakness of that of the plaintiff. * * *
“Before Teddlie’s title could be attacked by them they had to maintain their own. Should they fail in this, they had no legal concern as to whether plaintiff had rights in the property or not.” Teddlie v. Riser, 121 La. 666, 46 So. 688, 690; Garrett v. Spratt, 131 La. 707, 60 So. 199.

This land was transferred to the state of Louisiana under the Swamp Land Grant of 1819, and approved thereunder in 1852. It was patented by the state to R. Murphy, June 25, 1860, but there is nothing of record in Natchitoches parish divesting Murphy’s title. From 1907 to 1930, inclusive, it was assessed regularly to plaintiff and to T. A. Walker or his heirs.

The land was conveyed to plaintiff June 19, 1906, by A. R. Johnson and J. R. Wea-' ver, with other lands and deed duly recorded. It is admitted that the records of Natchitoches parish do not show any conveyance running to these vendors.

Defendants claim their father acquired it from T. S. Gibbs, January 9, 1900, and offered in evidence what purports to be a copy of the deed to their father, which, on its face, appears to have been executed in the county of Harris, state of Texas. It is only signed by the grantor, who acknowledged same before a justice of the peace. Neither the deed nor the acknowledgment is attested by any witnesses. Plaintiff objected to the admissibility of the instrument because it was not self-proving, not a notarial act, nor a private act executed, proven, or acknowledged, as required by the. laws of Louisiana. The objection was overruled, and the document filed in evidence. This ruling was erroneous. The instrument is clearly not admissible. Civ. Code, art. 2253; Act No. 68 of 1914; Fairthorne v. Davis, 28 La. Ann. 725.

Prior to the act of 1914, acts under private signature evidencing sale of land, even when attested by two witnesses and proven by the affidavit of one of them, were not admissible in evidence. It was necessary to adduce additional proof of the execution of the acts. The act of 1914 makes admissinle instruments thus executed and proven by affidavit of one of the attesting witnesses, but does not open the door to the admissibility of an act of Sale when only signed by the grantor and by him acknowledged before a justice of the peace, when the act itself and the acknowledgment are not attested by witnesses. The' record shows no title of any character running to Gibbs, who is supposed to have sold the land to Walker in 1900, and with the elimination of the purported conveyance from Gibbs to Walker, supra, defendants, according to the record before us, are without interest in, or title to, the land. Before they have standing to attack plaintiff’s title, it is necessary that they show title in themselves. Their answer converted the suit into a petitory action, and they thereby assumed the position of a plaintiff in such action.

Defendants denied that the Bodcaw Lumber Company, plaintiff, is, or ever has been, in the possession of the property in controversy. They had the right to tender this issue and have it disposed of before the case in other respects was considered. Labarre v. Burton-Swartz Cypress Co., 133 La. 854, 63 So. 380. This was not done. Notwithstanding the conversion of the form of action from one of slander of title to that of petitory, plaintiff’s possession being denied, and it pleading the prescription of ten years, based upon its alleged possession, carried the burden of establishing the possession claimed by it. Unless this has been done, it cannot be decreed in this suit the owner of the land, because it does not trace title back to the government, but to Johnson and Weaver, who, it is admitted, had no title to the property.

The evidence establishes that in the year 1908 or 1909 the timber on this land was cut and removed. On trial, defendant admitted that this timber was cut and removed by plaintiff. To effect removal of the logs from this land and from other lands owned by plaintiff in same territory, a tramroad was constructed across and over the north forty of the eighty-acre tract. We assume this tramroad simply traversed the land in its course from one part of plaintiff’s holding to another. It is not shown how long the tram was used, but the signs of it were noticeable a very short time before trial of this case; also the stumps. It is not established by affirmative evidence that the tramroad was built by plaintiff, but since it held deed to the land, cut and removed the timber from this and other tracts in same vicinity, it is safe to assume, and we do conclude from these facts and the inferences arising from other evidence, that the tram-road was built and owned by plaintiff.

It is shown that in the year 1913, T. A. Walker made claim against plaintiff for the value of the timber cut and removed from the land in 1908 or 1909. This matter was referred by plaintiff to its vendors, Johnson and Weaver, who settled with Walker by paying him ¡¡>450. it is not shown that plaintiff participated in the negotiations leading up to and those included in the adjustment of the dispute, nor that it in any manner or to any extent recognized Walker’s title as superior to that held by it. Naturally, when its right to cut and remove the timber was questioned, the matter was referred to its warrantors for their disposition. If they elected to pay any amount in order to avoid litigation, they did so on their own volition, and plaintiff should not be prejudiced thereby. However, according to the record in this case, there was no good reason for Johnson and Weaver paying Walker for the timber cut, for he did not hold a legal title to the land and was not in possession of it, while plaintiff’s title, precarious as it is shown to be, was supported by possession of several years when the controversy arose.

An acknowledgment of an outstanding title in another, to interrupt the course of prescription already begun, as a consequence of possession in good faith, must be clear and definite. La Del Oil Properties v. Magnolia Petroleum Co., 169 La. page 1137, 126 So. 684, and many other authorities cited therein; City of New Orleans v. Shakspeare et al., 39 La. Ann. page 1033, 3 So. 346.

As stated herein, it is not shown that plaintiff acknowledged Walker’s title superior to its own, but on the contrary continued to claim the land and pay taxes on it.

The most serious question involved in a decision of this case is that of possession. If plaintiff’s possession of the property has not been sufficient to predicate prescription upon, then neither side can take anything by this suit, for it is certain defendants are not in possession and never have been, nor was their father in the corporeal possession of the property for any length of time.

All of the pine timber was removed from the land about the time the tramroad was constructed across it. The stumps remained there as mute evidence that the land had been possessed to the- extent necessary to cut and remove the trees. The signs of the tramroad were visible at time of the trial of the case in February, 1931. These two facts indicate unmistakably that someone had exercised actual possession of parts of the entire tract, and were sufficient to lay the predicate for prescription of ten years acquirendi causa when done by one holding under a recorded title and in good faith. Miller v. Albert Hanson Lbr. Co., 130 La. 665, 58 So. 502; Leader Realty Co. v. Lakeview Land Co., 133 La. 653, 63 So. 253.

In the matter of possession, good faith is always presumed. Civ. Code, art. 3481. He who alleges bad faith must prove it.

“It is sufficient if the possession has commenced in good faith; and if the possession be afterwards held in bad faith, that shall not prevent the prescription.” Civ. Code, art. 3482. Barrow v. Wilson, 38 La. Ann. 209.
“The actual possessor, when he proves that he has formerly been in possession, shall be presumed also to have been in possession in the intermediate time.” Civ. Code, art. 3492.
“When a person has once acquired possession of a thing by the corporal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.” Civ. Code, art. 3442.
“Whether this is a possessory or petitory action, or whether it is merely a suit for slander of title, are issues which need not be discussed here, for, in our opinion, the trial judge correctly found, as a fact, that plaintiff took physical possession of the property shortly after the recordation of its deed thereto, and, after some months of actual occupancy, it has had uninterrupted civil possession for more than ten years. A judgment was therefore rendered maintaining plaintiff’s plea of prescription and rejecting the defendants’ demands." Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166, 167.

In this case, the Supreme Court affirmed the judgment of the lower court, which maintained the plea of prescription based upon possession of the character reflected from the above-quoted excerpt from the decision.

For the foregoing reasons, the judgment appealed from, in our opinion, is correct, and it is hereby affirmed.


author: CULPEPPER, J.

text:
    No. 3704
    Second Circuit (Second Division)
    WILLIAM D. SEYMOUR CO., INC., v. THE BEAIRD CORP.
    (July 16, 1931. Opinion and Decree.)
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellant.
    Melvin F. Johnson, of Shreveport, attorney for defendant', appellee.
   CULPEPPER, J.

Plaintiff corporation alleges it purchased from defendant partnership, and paid for same, three 15 lb. generators, one 50 lb. generator, one 25 lb. generator, and one 100 lb. generator, the invoice price of all of which amounted to $753.34. The date of the purchase was in January, 1921, as well as we are able to tell from the record. The purpose for which the generators were acquired was to resell them at retail. In some instances, these generators, when resold by plaintiff, failed to give satisfaction to plaintiff’s customers, and on September 1, 1922, plaintiff addressed the following letter to defendant:

“We have been having a good many complaints on your Generators. As a matter of fact, we shipped one of your Generators into Hattiesburg, and it is going to be returned .to you direct to Shreveport.
“It cost us $75.00, salesman, and transportation fare to and from Hattiesburg. Our man has had to go to Hattiesburg three times, and after the third trip, he was not successful in finding out the trouble. The Generator will not work.
“Please advise us disposition on this Generator, as well as the Generators we have on hand at New Orleans, as follows:
“1-15‡†- 2-25-¡‡ 1-100# (This is at Hattiesburg.)
“We regret this very much but we can- • not see an outlet from this trouble. If you have any suggestions to make we will be glad to hear from you.’’

Not receiving a reply to the above letter, plaintiff again wrote defendant on September 18, 1922, as follows:

“We wrote you on Sept. 1st. relative to complaints received on your Generators and have not heard from you to date.
“Did you receive the Generator which was returned to you defective, from Hattiesburg? If so, we would like to hear from you. We have two of your Generators on hand in New Orleans, one 50 lb. and two 25 lb., which we would like you to give us disposition on.
“Don’t let this matter drag — let us hear from you.”

On September 25, 1922, defendant company, in reply to the above two letters, wrote plaintiff as follows:

“Wish to advise that we have not received the generator from Hattiesburg, but if it is your desire, we will be pleased to have you return this machine to Shreveport.
“We will also be pleased to have you return what machines you have on hand at New Orleans, and same will be credited to you, and we will be glad to wind up this entire matter to our mutual satisfaction just as' soon as the machines are returned to us.”

On October 3, 1922, plaintiff addressed the following letter to defendant:

“We are pleased to advise that we have shipped you by the L. R. & N. Railroad under date of yesterday (4) 15 lb. Generators, (3) 25 lb. Generators, and (1) 50 lb. Generator, and (1) 100 lb. Generator.
“In addition to this, we had shipped you from Hattiesburg (1) 100 lb. Generator. We are going to ask you to please credit our account with these Generators, and advise us how we stand.
“Thanking you kindly for your attention to this matter, and regretting that we are not able to move these Generators for you, we are,
“Yours truly,
“William D. Seymour Co., Inc.”

On November 14, 1922, plaintiff mailed defendant a statement saying defendant owed plaintiff $1,234.31 and requested payment. Defendant made no reply, and plaintiff wrote a second letter. On December 18th, following, defendant replied, stating:

“We wish to state that we do not understand how you arrived at this amount, or on what authority the generators were returned.
“We have you charged with a consignment of generators amounting to $674.60, which we shipped you and that have not been paid for. We have mailed you statement each month showing this amount. On July 22nd you gave us a statement showing six of these machines on hand, and in your letter of Sept, first, you stated that you had four machines, one of which was at Hattiesburg, and that you wished to return to us. In our letter of Sept. 25th we advised you that you could return the machines, and instead of returning the ones, that you stated you had on hand, you shipped ten machines.
“Now there has been nothing to' indicate that you had more machines on hand, than we had you charged with,, and we have never authorized you to return any machines other than those that were shipped you on consignment and remained unsold. We do not see how you could expect us to permit the return of the machines that have been paid for, for credit without us authorizing you to do so.”

After numerous correspondence between the parties, plaintiff billed defendant on August 21, 1923, for the following:

Considerable correspondence was thereafter had between the parties, in which plaintiff claimed it should be paid for the machines returned; and defendant contended that it had agreed to take back only those called for in plaintiff’s letter of September 25, 1922, being six in number and being machines, which had been shipped to plaintiff on consignment and had not been paid for, and that defendant nad only agreed to take those back and give plaintiff’s account credit for- them. Being thus unable to adjust the matter, plaintiff finally filed this suit on March 19, 1925, for $790.87, with legal interest from October 31, 1922. This amount is shown from the petition to have been made up of the following generators: Three 15 lb., one 50 lb., one 25 lb., and one 100 lb., aggregating at their invoice price, $753.34; also 58 cents for express on parts of generators, and $36.95 for the amount allowed for repairs on a generator which had exploded and was repaired. Plaintiff alleged it had paid defendant for these generators, and that defendant was obligated to refund the money paid at their invoice prices.

Defendant filed exceptions of no cause or right of action, which were overruled. Exceptions of vagueness were filed, in response to which plaintiff filed several supplemental and amended petitions. Finally defendant answered setting up substantially the same position taken in its letter above quoted. It averred that, the generators alleged to have been returned had been sold by defendant to plaintiff on consignment, had never been paid for, therefore, when returned to defendant and credit allowed for same, it balanced and canceled plaintiff’s account.

Upon these issues, the case went to trial, resulting in a judgment rejecting plaintiff’s demands. Plaintiff has appealed.

The solution of the case devolves upon whether plaintiff purchased the generators outright and paid for them, thereby entitling plaintiff to a return of its money upon its return of the generators to defendant’, or whether defendant shipped them to plaintiff on consignment, and they had not been paid for at the time of their return, in which event, of course, defendant could only be expected to merely credit plaintiff’s account back according to the invoice prices.

The testimony is somewhat confusing; that of plaintiff and defendant conflict on several material points.

Some time in 1919, plaintiff and defendant, through Mr. Keating, vice-president of plaintiff company, and Mr. Beaird, member of defendant partnership, entered into an agreement by which plaintiff should represent defendant in the New Orleans territory for the sales of automatic feed acetylene generators, same to be manufactured at defendant’s place of business in Shreveport. Mr. Keating testifies (page 13) that he endeavored to get Mr. Beaird to ship his company generators on consignment, and that Mr. Beaird told him the only way he would deal would be for Mr. Keating to buy so many generators outright, and then he would ship him some on consignment. Mr. Keating says he agreed to this proposition, with the proviso that Mr. Beaird would absolutely stand behind the goods, which Mr. Beaird agreed to do. Mr. Keating was asked the question on -the witness stand if that was the agreement between the two firms always. His answer was:

“On that particular purchase, that was the original, I made that one myself.”
‘‘Q. Which one?
“A. So many generators on consignment and so many to be bought outright.
“Q. Was that the situation at the time of this conference?
“A. Absolutely, yes, we had some' of the generators on hand.
“Q. By some on hand you mean some on hand that' had been paid for?
“A. Yes, and some out among tlie trade and we had received complaints from several places about the generators. Mr. Beaird was in New Orleans °and I told him about it. I said, ‘We are having a lot of trouble with these generators, and they are beginning to take welding work away from us and the best thing to do is to let us ship them back.’ He said, ‘Try to sell those generators and if necessary we will give a discount and if worst comes to the worst we will let you return them.’ He told me that in the office.”

Mr. Keating was not certain as to the date this conversation between him and Mr. Beaird took place, but fixed it, as well as he could recall, in 1923. He said the correspondence would tell. He states he only saw Mr. Beaird twice, one time in Shreveport and one time in New Orleans. It was in Shreveport that he had the agreement with Mr. Beaird for the sale and consignment of the generators, and that was in 1919, during the war, according to Mr. Keating. He says the generators sold “pretty good” at first. Asked if he did not order about six on consignment in fall of 1920, he said, “Perhaps we did.” Asked if he paid for those, he said, “If we sold them we paid for them.” Asked, “How do you know?” he did not explain, but proceeded to relate some transaction he had had with Mr. Beaird before his trip to Shreveport, in no way connected with the question. Then' follows a lot of confused testimony by Mr. Keating, whereby counsel was endeavoring to ascertain from the witness how many generators were on hand that were paid for, how many not paid for, how many on consignment paid for and not paid for. He cold not tell, only from what seemed to be shown on a memorandum he claimed was taken from the stock record made up by some one else on a piece of scratch paper which plaintiff offered and filed in evidence in connection with Mr. Keating’s evidence, and which defendant’s counsel objected to as being rank hearsay.

This document seems to be plaintiff’s main reliance for proof in connection with the testimony of both" Mr. Keating, vice-president, and Mrs. 'Gringy, general supervisor, of plaintiff’s company’s welding business. Prom this evidence, as well as all other evidence in the record, we are unable to definitely determine the number of generators plaintiff had on hand at any one time paid for and unpaid for. Nor are we able to determine which of those returned on October 2, 1922, had been paid for and which had not. While it is not shown for what reason the district court judge rejected the plaintiff’s demands, we suspect it was because plaintiff’s proof was not sufficiently definite and certain to warrant the basis of a judgment for any amount. The document marked “D-81” apparently showed the number of machines on hand at the time of Mr. Beaird’s visit to New Orleans, yet Mrs. Gringy testifies that was “perhaps over a year” before the time plaintiff returned the nine generators to defendant. Therefore, that document, if admissible in evidence, cannot he relied upon to determine how many of •those returned a year or more later had been paid for and how many had not, nor how many of them had been sold outright and how many on consignment. Defendant’s position is that by giving credit for the generators returned it balanced its account with plaintiff. According to defendant’s ledger sheets, as explained by its bookkeeper, Mrs. Bain, there was a balance due by plaintiff to defendant of $660.60 as. of date January 14, 1922. Mr. Beaird, called by defendant, testified that he did not have the conversation in New Orleans with Mr. Keating as testified about by Mr. Keating and Mrs. Gringy, and that he could not have had it, as the only time he ever saw Mr. Keating was in Shreveport, and it was there that he had his only conversation with him, and that was before he ever shipped Mr. Keating generators on consignment. He denies he ever agreed to take any of .the generators, back, except in his letter of September 25, 1922, wherein he agreed to take four that plaintiff said it had on hand, referred to in plaintiff’s letters of September 1st and 18th. He says he never did agree orally or in writing with any one to take back any of the generators which had been sold to plaintiff outright. He says that when he received the returned generators he credited plaintiff’s account with them and considered the account settled and closed. He says- he did not return any of the generators to plaintiff, but wrote plaintiff che letter of November 14, 1922. This letter is iD| the nature of a protest at plaintiff’s having sent nine generators instead of four as mentioned in plaintiff’s previous letter. He says also that plaintiff did not demand the return of any of the machines; that defendant was anxious, to get the matter settled and just kept the shipment and canceled plaintiff’s account, and considered the matter at an end. He states he discussed the matter with Mr. Brooks, attorney for plaintiff, some time after receiving the shipment, and told Mr. Brooks what he thought would be an amicable adjustment of the matter. He says, he- told Mr. Brooks that all the generators were on hand and he was perfectly willing for plaintiff to have them back if plaintiff wanted them. This was in the latter part of 1922. Nothing further appears to have been done about the matter, until in March, 1925, when plaintiff filed suit. Mr. Beaird testifies that in the meantime his company made no effort to sell any of the generators except five, which he considered theirs by reason of the fact they had been shipped on consignment and had not been paid for, and which he is not certain but probably these five were sold; that the ones left on hand are worthless.

It has been suggested by counsel for defendant that plaintiff’s claim is a stale one. We are inclined to agree with counsel on this point. Besides, the character of proof submitted by plaintiff is uncertain and rather indefinite, as well as contradicted by defendant in some of its most material aspects. As to the machines returned, plaintiff’s witnesses, could not tell positively which ones had been paid for and which had not. The testimony of Mrs. Gringy and Mr. Keating that Mr. Beaird visited their office in New Orleans and agreed to the return of certain of the machines was flatly denied by Mr. Beaird, who testified that could not be true because he made no visit to New Orleans about that time. So the character of that evidence is. such as that it does not preponderate over that of defendant.

Defendant had on its books at the time an account against plaintiff amply large to offset the invoice price of what reasonably appears to have been the machines unpaid for. As to whatever number there might have been of the machines paid for returned, the definite number and price of which is not shown, defendant entered a protest against their being shipped to it, and later advised plaintiff’s attorney of defendant’s, willingness to return them, never did dispose of them, and they are now worthless. We do not think at this late hour, under all these circumstances, plaintiff is entitled in law or good conscience, to take from defendant anything in this suit.

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