author: JONES, J. JONES, J.

text:
    No. 9529
    Orleans
    CRAIS v. CASTAING
    (February 14, 1927. Motion to Dismiss Appeal Denied.)
    (March 28, 1927. Opinion and Decree.)
    (April 21, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    ON. MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Courts—Par. 128.
    In a suit to correct a deed, where the value of the strip of land in dispute is two hundred and fifty dollars, this court has jurisdiction of the appeal.
    ON THE MERITS
    2. Louisiana Digest — Pleading—Par. 62, 71.
    In passing on an exception of no cause of action all allegations of fact contained in the petition must be taken as true.
    3. Louisiana. Digest — Error and Mistake— Par. 15, 16.
    An error in the description of real estate contained in an act of sale can always he corrected, as between the parties, by an action to reform the instrument.
    Appeal from Civil District Court, Division "F”. Hon. Percy Saint, Judge.
    Action by Wm. C. Crais and Union Homestead Assn.- against Armand • J. Castaing and Homeseekers’' Building and I/vm Association.
    There was judgment for defendant and plaintiff appealed.
    Huddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    D. V. Doussan; P. L. Fourchy; Legier, McEnerny & Waguesipack, of New Orleans,' attorneys for defendant, appellee.
   ON MOTION TO DISMISS APPEAL

JONES, J.

Plaintiffs filed this suit to correct the description of two lots sold so as to make the frontage approximately seventy feet instead of seventy-four feet.

Plaintiffs aver that the selling price of the entire portion was twenty-four hundred and 00-100 ($2400.00) dollars cash, and that plaintiffs were induced to sign the erroneous deed by fraud.

An exception of no cause of action was maintained by the lower court and appeal was taken to this court.

Plaintiffs’ attorney filed with the transcript an affidavit made by him to the effect that the strip of land measuring four feet front on St. Bernard avenue by a depth of one hundred and forty-five feet, ownership and possession of which was the issue in this case, was worth two hundred and fifty and 00-100 ($250.00)

dollars.

Appellee moves to -dismiss the appeal on the ground that this is a suit to correct the deed to the entire property and that only the Supreme Court has jurisdiction.

' In his brief on the motion to dismiss he quotes authorities to the effect that the test of jurisdiction in actions' of boundary is the value of the strip included between the two contested lines; in an action “en declaration de- simulation” the test is the value of the property.

Plainly the authorities on the latter point are not applicable here because there is no allegation in the petition that the entire transfer is illegal and the allegation of fraud applies only to the transfer of the narrow strip. The prayer of the petition is that the deed may be corrected so as to describe the lots as having a frontage of seventy feet instead of seventy-four feet.

In deciding the question we must be guided by what the pleadings as a whole show and not by names or titles, by the essence rather than the appearance, for the form of transaction does not affect its nature.

Cox vs. First National Bank, 126 La. 88, 52 South. 227.

The pleadings here show that the entire controversy is as to the ownership and possession of a strip of land worth two hundred and fifty and 00-100 ($250.00) dollars, and we think that the principle applied by the Supreme Court in actions of boundary should govern.

In the case of Beatty vs. Sharp, 135 La. 250, 65 South. 232, the Supreme Court held:

“The value of the land, the possession and ownership of which will be affected by the establishment of the boundary, determines the jurisdiction of the court on appeal.”

For the above reasons the motion to dismiss the appeal is denied.

ON THE MERITS

JONES, J.

This is a suit for reformation of a deed to certain lots in this city on the ground that the' description in plain* tiff’s deed to the Homeseekers’ Building & Loan Association, of date July. 8, 1921, was knowingly so drawn by the defendant Castaing (for whom the homestead was acting' in its purchase) that plaintiff Crais sold approximately. four feet frontage by a depth of one hundred and thirty-five feet more than he intended to sell.

Plaintiff, after alleging above facts and setting forth in detail the descriptions by which the homestead bought from Crais and the description which he had given in his verbal agreement with Castaing, states that Castaing well knew the location and ■ true measurements of the property (which.was encumbered with a mortgage in favor of the Union Homestead Assn.) and was released by said association under the belief that the act was properly drawn to correspond with the verbal agreement; that a month after the sale petitioner discovered the error, when Castaing claimed a portion of his driveway and began to move his fence four feet back.

Plaintiff then prays. for a correction of the act of sale of July 8, 1921, so as to diminish the area of the lot sold by 'the above described portion of ground.

This petition was' filed on October 5, 1921, and October 16, 1921, the Home-seekers’ Building & Loan Association filed an exception of vagueness thereto.

On October 13, 1921, Castaing filed • a similar exception. Apparently before these-exceptions were tried, Castaing, on ■ January 11, 1922, filed an additional exception' of no cause of action. Then, on January 18, 1922, the Homeseekers' Building & Loan Association filed „ an answer alleging no. cause of action and denying all the other allegations of the ■ petition except that the act of sale was passed as alleged. Further answering, respondent averred that it, without knowledge of the alleged oral agreement, purchased “for and on behalf of Castaing” the property from Crais on July 8, 1921, and that said act was read to Crais and he made no objection thereto.

On January 26, 1922, Castaing filed an answer exactly similar to that of his co-defendant, the Homeseekers’ Association.

Apparently nothing further was done in the matter until May 11, 1923, when a supplemental petition was filed' containing additional allegations as follows-:

(1) That Castaing before agreeing to purchase went over the lots carefully with petitioner and fully understood that the four feet, part of Lot 8, fenced off from the remaining part of said lot, was not included in proposed sale.
(2) That a short time after this inspection by Castaing plaintiff furnished him with a sketch showing the exact location and dimensions of the property intended for sale and that Castaing, with this sketch in his possession, again inspected property with plaintiff, and was again particularly informed that the fenced in portion of Lot 8 would not be sold.
(3) That, notwithstanding this knowledge, Castaing told the notary employed by him to include the whole of Lot 8 in his description and the notary carried out his instructions.
(4) That in-.thus instructing the notary Castaing acted fraudulently.
(5) That on the day of sale the notary, having ’said he was pressed for time, that the description was correct and -the act was drawn properly, he “affixed his signature” to .the act in ignorance of the fact that the description was incorrect.
(6) That -his signature was obtained by fraud and misrepresentation \of Castaing and by the “false representation of notary”."

He .then .prays for .the same judgment as that s.ottght.in his original -petition.

On May 21, 1923, the Homeseekers’ Building & Loan Association answered the supplemental. petition denying all fraud and misrepresentation and denying that the notary was acting for Castaing and averring that the act was drawn according to instructions of both Crais and Castaing; that it was read to all parties; that the property was immediately sold by it to Castaing and that the notary was the regular notary of the homestead and Castaing had nothing to do with this selection.

On May 28 Castaing filed exceptions to supplemental petition of vagueness, of change of issue and of no cause of action.

On January 23, 1924, the exceptions filed by both defendants were maintained and suit dismissed.

In his reasons for judgment the learned judge says that it was unnecessary to pass upon the second exception because the first exceptions of no cause of action were well founded, as there was no allegation of fraud. From this judgment, plaintiff Crais has appealed.

As the first petition charged misrepresentation knowingly made- by one defendant, and as our Supreme Court has frequently held that an error in description of property in an act of sale can always be corrected between the parties, we do-not think the reasons of the trial judge well founded. See Fleming and ■ Baldwin vs. Scott, 26 La. Ann. 545; Vigiiie vs. Bra-' die, 35 La. Ann. 561."

In argument and brief before this court,'defendants make the point that, the supplemental petition- changes .the issue and was, therefore, illegally filed, but with this contention we do not agree, because the amended document merely amplifies and details all the circumstances leading up to the--error or fraud and winds up with the very same prayer .for ■ correction - of- the* deed. Thus iu both petitions the issue remained the same, the recovery of the strip sold in error.

In both original and supplemental petitions plaintiffs fail to mention the resale to Castaing by the Homeseekers’ Homestead Association, and this resale is only mentioned in the answer of that association to the supplemental petition.

Although this homestead is nowhere charged with fraud, misrepresentation or. conspiracy, yet if this action stands and it be proved that the usual custom of homesteads was followed and resale made immediately, that institution will be the sole sufferer, because the deed to Castaing can not be changed under the pleadings.

Under these circumstances we should certainly hold that this suit was improperly brought and therefore affirm the finding of the trial judge, were it not for the fact that the petition alleges that the homestead (contrary to their usual practice) was the agent of Castaing, and we must take that allegation as true, as the certifiedNopy~of~the~act — of ”iiale is not attached to the petition, and we know of no law prohibiting such a procuration.

If it be proved on trial that the homestead was acting as agent of Castaing, then it will be bound by his knowledge.

For above reasons the judgment is now reversed, and it is now ordered that the exception of no cause of action filed by both defendants be overruled.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,758.
    Orleans
    CITIZENS DISCOUNT & INVESTMENT CO. v. CANATELLA, ET ALS.
    (April 11, 1927. Opinion and Decree.)

      (SyllaMis by the Court)

    1. Louisiana Digest — Office and Officer— : — Par. 1; Exemptions from Seizure— Par. 2, 3.
    The character of service performed determines whether an individual is, or is not, a public officer within the meaning of Art. 647 C. P.; exempting the salary of an officer from seizure.
    2. Louisiana Digest — Office and Officer— Par. 1.
    If he performs functions prescribed by public authority for a public purpose he is an officer.
    3. Louisiana Digest — Office and Officer— Par. 1; Exemptions from Seizure — Par. 2, 3.
    A fireman, employed by the Fire Department of the City of New Orleans, performs important public service under public authority and is, therefore, a public' officer, and his salary is not subject to seizure under garnishment process.
    Appeal from First City Court, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by Citizens Discount & Investment Company against Joseph Canatella, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Marx & Levy, of New Orleans, attorneys for plaintiff, appellant.

      Geo. Montgomery, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The defendant, Edward McCrossen, a member of the Fire Department of this city, was garnisheed and his salary impounded. He opposed the seizure of his wages upon the ground that he was a public officer and, as such, his salary exempt from seizure. There was judgment for defendant and plaintiff has appealed.

Plaintiff contends, first: That the failure to mention the salary of an officer among the exemptions from seizure set out in Act 184 of 1918 amending Article 644 of the Code of Practice has the effect of subjecting the salary of public officials to seizure, and second: That a fireman is not a public officer.

The first point made by plaintiff has recently been decided adversely to plaintiff’s contention by the Supreme Court in an elaborate opinion by Chief 'Justice O’Neill in a case coming from this court. Fisher vs. Dubroca, decided January 31, 1927, and not yet reported. In that case the court said:

“The reason why, as a matter of public policy, a public officer’s salary is not subject to. seizure by garnishment process against, the disbursing officer is that the orderly administration of public affairs should not be hampered in that way. An officer’s salary is dedicated by law to the special purpose of paying for the service that he must render to the public, and, until the fund leaves the public treasury, it must not be diverted to any other purpose at the instance of any individual. The law does not exempt a public officer’s salary from seizure, or shield it from liability for his debts, as a matter of grace or favor to him. The exemption prevails only so long as the salary remains in the public treasury or in the hands of the disbursing officer. Dunbar vs. Dinkgrave, 10 La. Ann. 545.”

Is a fireman an officer?

Our answer is in the affirmative.

The test of whether an individual is, or is not, an officer; within the- meaning-of the exemption, does not .depend upon whether an' official title customarily or legally associated with those who occupy prominent stations in public affairs, is conferred, but'upon the character of service performed. If the functions of the individual are prescribed by public authority and exercised for a public purpose, he is a public officer.

“The term office under our Article (C. P.) 644 has reference to functions conferred by public authority and for a public purpose.”

Chaudet vs. DeJong, 16 La. Ann. 400.

In Jennings vs. Trainor, No. 5182 Orl. App., this court, in holding that an employee of the City Board of Health, whose office was not specially created by law, but his duties and functions prescribed by the City Board of Health, was an officer, and as such his salary exempt from seizure, said:

“The nature of the employment is to he determined solely by the- character of the duties to be performed without reference to the particular authority by which those duties are defined.”

In King vs. Seymour, 5th Ct. of App. (Orl.) 78, it was held that a position neither expressly provided for by the Legislature nor ordinance of the City Council, but created and provided solely by a public board, acting within the scope of its authority, was a public office within the meaning of C. P. 647.

In Heyman vs. Maloney, No. 8767 Orl. App., it was held that an employee of the Board of Commissioners of the Port of New Orleans (Dock Board) was anrofiicer.

In Huntington vs. McCoy, .9045 Orl. App., it was held that the salary of the Clerk of the Criminal District Court was not subject to seizure by garnishment process against the treasurer of the City of New Orleans.

In Wheeler vs. Fire Commissioner, 46 Ann. 734, 15 South. 179, a veterinary surgeon elected hy the Fire Commissioners of New Orleans was held to be an officer' of the department.

In Moll vs. Shisa, 51 Ann. 290, 25 South. 141, a clerk of the Sixth Recorder’s Court appointed by the recorder was held to be a public officer. See also Duroch vs. Caillouet, No. 9873, this day decided.

We conclude that a fireman, who exercises most important functions connected with the public welfare, is unquestionably an officer within the meaning and scope of the exemption from seizure of salary due an officer under our law and jurisprudence.


text:
    No. 10,403
    Orleans
    MONJURE, SR., v. COUSINS
    (March 14, 1927. Opinion and Decree.)
    (April 11, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1.’ Louisiana Digest — Prescription — Par. 35; Mandate — Par. 49, 50.
    A just title, translative of property, is all that is required to support the prescription of ■ .ten ■ years acquirendi causa. A conveyance • by an agent in authentic form under a. power of attorney describing the property will serve as the basis of the prescription of ten years.
    Appeal from Civil District Court, Division “C”. Hon. Columbus Reid, Judge.
    Action by Anthony Monjure, Senior, against Mrs. Amelia Cousins.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. C. Davey, R. C. Davey, of New Orleans, attorneys for plaintiff, appellant.
    L. G. Hoover, of New Orleans, attorney for defendant, appellee.
   OPINION

WESTERFIELD, J.

Plaintiff sues to recover $335.00, alleging that he paid that amount to defendant as part of the purchase price of certain described property, the title to which was defective. Defendant answered, asserting that the title to the property sold to be good, and reconvened, asking judgment for specific performance, ordering plaintiff to accept the title and pay $3015.00, the balance of the purchase price.

There was judgment rejecting plaintiff’s demand and in favor of defendant as prayed for. Plaintiff has appealed.

The defect in defendant’s title is said to consist in the fact that in the act of sale before H. R. Warren, Clerk of Court and Ex-officio Notary Public for the Parish of St. Tammany, dated September 26, 1893, the act by which defendant acquired the property in question from the heirs of one John Addis Smith, ten of the twelve heirs of Smith were represented by an agent under ' a, power of attorney, which was not in the proper form because “the acknowledgments are not made in the presence of the subscribing witnesses” and “A power of attorney to an agent to sign an authentic act should be in authentic form”. Denegre vs. Fairex, 52 La. Ann. 1762, 28 South. 316.

Defendant contends that the powers of attorney were in due form as writings under private signature, C. C. 2992, and pleads the prescription of ten and thirty years.

Defendant acquired in the year 1893 and agreed to sell in 1919, consequently thirty years had not elapsed. But we think the prescription of ten years, acquirendi causa, has perfected defendant’s title so far as the defect complained of is concerned, without stopping to discuss the merit of the objection.

Defendant undoubtedly possessed a just title translative of property as required by R. C. C. 3478, 3479.

“After possession of twenty years by a purchaser under a sale made by one acting as agent, the authority of the agent can not be contested.” Moore vs. Hampton, 3rd Ann. 193.

Even if the agent acted under purported power of attorney which did not describe the property to be sold and contained no written authority to convey it, the title thus conferred will serve as the basis of the prescription of ten years. Greening vs. Natalie Oil Co., 152 La. 468, 93 South. 682.

Since this suit was filed Anthony Monjure, the plaintiff, died, and his heirs on proper motion have been made parties.

The judgment appealed from is correct and is, therefore, affirmed, with substitution of the following named heirs in lieu of Anthony Monjure:

Mrs. Rosario Laeantro, widow of th.e decedent, in her individual capacity, 'and as tutrix of the minor daughter of decedent.

Marion Monjure.
Mrs. Margaret Monjure, wife of Jas.. H. Carter.
August J. Monjure.
Mrs. Rosie Monjure, wife of Charles Spizale. Joseph Monjure. . ,
Angelo Monjure.
Anthony Monjure, Jr.
Mrs. Mary Monjure, wife of Roy Wagner. Theresa Monjure.
John Monjure.


author: JONES, J.

text:
    No. 9670
    Orleans
    ARDILL v. HEIRS OF MARTINEZ
    (Mar. 28, 1927. Opinion and Decree.)
    (Apr. 21, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Court)
    1. Louisiana Digest — Sales—Par. 271.
    Where the vendor, whq was not called in warranty, shows that he possessed deeds or other documents which would have defeated the suit for eviction, if .they had been offered in evidence, suit for original purchase price of the lots, taxes thereon and costs of the former suit will be dismissed.
    Appeal from Civil District Court, Division “A”. Hon. Hugh Cage, Judge.
    Action by Miss Margaret Ardill against Heirs of Joseph P. Martinez.
    There was judgment for defendants and (plaintiff appealed.
    Judgment affirmed.

      Chas. Louque, of New Orleans, attorney for plaintiff, appellant.
    Jas. Wilkinson, of New Orleans, attorney for • defendants, appellees.
   JONES, J.

Plaintiff brings this suit to recover from the heirs of her vendor the price paid by her, and her expenses for the purchase of four lots of ground from which she was evicted by final judgment rendered by this court, a writ of certiorari being refused by the Supreme Court.

The defendants set up that they were not called upon to defend the suit in eviction, and—

“* *'* that they could have gained said suit. That the judgment of the Court of Appeal was largely based on the failure of defendant to offer and file the deed and surveyors of her previous author on which her title was based and which your defendants as warrantors would have produced if called in warranty.”

The defendants aver that the prescription of three, ten and twenty years should have been pleaded.

The lower .judge, who first gave judgment in favor of plaintiff for the amount claimed, later granted a new trial and then dismissed the suit.

Plaintiff took-this appeal. ,

In the original opinion of this court in the case of Puritan Co. vs. Miss Margaret Ardill, No. 8235 of this docket, Judge Bell in his reasons for judgment, affirming the decision of the lower court in favor of plaintiff, uses the following words: .

“The plan of de Armas does not appear in. the' record before us, and in fact, there aré -nd documents of evidence which in any manner, locate the defendant’s prop, erty as being on the corner of Frenchmen and Virtue Streets, except the certificate of the tax collector, dated October 9, 1899, to the effect that all taxes have been paid up to October, 1899, and except another document, or application, by J. P. Martinez, addressed to the Auditor of Public- Accounts, in Baton Rouge, for the purchase of property located on the . corner of Frenchmen and Virtue Streets, in Square 1209, sold for unpaid State taxes of 1892.
“The evidence shows that defendant offered various deeds to be produced and filed, but which, in fact, appear not to have been filed in this proceeding. Of course, their absence precludes us from the opportunity of identifying by original deeds, if such identification were possible,, the property alleged to have been bought by Martinez, with that property now located on the corner of Frenchmen and .Virtue (or Rncheblave) Streets.”

In his opinion denying petition for rehearing Judge Claiborne uses the following language:

“Nothing in defendant’s title, or that of her authors, locates her lots at the corner of Frenchmen and Virtue or elsewhere than on Frenchmen Street.
“Neither the application of Martinez to the Auditor to purchase the Sanchez lots, nor the certificates of the tax collector as to the payment of taxes on' same, can add to defendant’s title, or locate the lots actually purchased. The former cannot make evidence for himself, nor can the ’■ latter certify to anything except as to What is upon his books. It is. true that the assessment, rolls of 1832 locaté the Emma Sanchez lots at the corner of Frenchmen and Virtue and the John Jackson lots somewhere on Frenchmen' Street. But it was not in the power of the assessor to confer or destroy titles by the order in which "he chose to assess owners of property. By buying the property assessed to ‘John Jackson’ the State acquired the lots, which Jackson owned, and not those which-.Emma Sanchez claimed.
“Although the auditor’s deed to defendant was mislaid, a copy of its registration, in the Conveyance Office, or other records,, might have‘been produced. .But the defendant did nqt buy on the. .assessment roll o£ 1882 but upon that of 1883, which, perhaps, were different.”

These extracts both ' show that the decision of-.this court in both' instances was based on the fact that there were nó certified copies of deeds or documents in .the record by which the lots of Miss Ardill could be definitely located. That defect’ has' now been, overcome as defendant in this case has filed, in the record, a certified copy-of the tax deed by which Charlés Cavanae, tax collector of the Second District, on March 11, 1885, sold to the State of Louisiana for the state taxes of 1882 property described as follows:

“Four lots in Square No. 1209, and measure 128 feet on Frenchmen Street, 120 feet deep, corner Frenchmen and Virtue Streets for $10.91, assessed in the name of Emma Sanchez.”

This deed was registered in conveyance office book on May 11, 1885, book 122, folio 603.

A certified copy of extract from conveyance book of this parish shows • that the auditor of this state, on October 19, 1899, sold to J. P. Martinez property described as follows: '

“Four certain lots of ground and improvements thereon in Third District in Square 1209, bounded by Frenchmen and Virtue, ‘ Elysian Fields' and Force Streets, said lots measure 128 feet on Frenchmen by 120 feet in depth, said property was adjudicated to the State for taxes in 1883 in name of Emma Sanchez, on March 7, 1885; by Chas. Cavanae, then tax collector.”

. The tax deed which must control shows that -the auditor made a mistake in saying (property was sold for taxes of 1883, for the deed recites sale was made for taxes of 1882.

.-A certified copy of another tax deed, offered in. evidence by .-defendants,. shows that the same tax collector, for taxes of the same year, 1882, sold February 28, 1885, to the State of Louisiana property described. as:

“Certain lots in Sqhare 1209, Frenchmen, Elysian Fields, Force and Virtue Streets, and measure 128 feet on Frenchmen Street by 126' feet in depth for $11.71, assessed in name of John Jackson.”

The deed was registered February 28; 1885, in C.O.B. 122, fo. 568.

The state auditor sold to the Aztec Land Co., on November 10, 1902, the following described property:

“Certain lots of ground and improvements thereon, in the Third District of the City of New Orleans, in Square No. 1209, bounded by Frenchmen, Elysian Fields, Force and Virtue Streets; said lots measuring 128 feet front on Frenchmen Street, by 128 feet in depth, adjudicated to the State for taxes 1882, assessed in name of John Jackson.”

Assessment rolls of 1882, offered in evidence by defendants, show four lots were assessed to Emma Sanchez at Frenchmen and Virtue Streets and certain property as follows: “Jno. Jackson, Frenchmen and Force, 128-128 (dimension of all lots) actual value $400.”

Thus the number of lots assessed to Emma Sanchez is given and the lots are definitely located, but Jackson is not assessed for any number and his lots are not definitely located in the square.

The State could not convey to the Aztec Land Co., in 1902, the property which ■ it had previously conveyed by valid deed to J. P. Martinez in 1899.

- ' After careful reading of the records in both suits we are convinced that the judgment appealed from is correct for the above reasons.

If is, therefore, affirmed.


text:
    No. 9650
    Orleans
    STEWART v. DIXIE LAUNDRY CO.
    (Mar. 28, 1927. Opinion and Decree.)
    (Apr. 11, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (SyllaVtis by the Court.)

    1. Louisiana Digest — Builders and Buildings — Par. 12.
    Where the-undertaker furnishes both labor and materials and the work is destroyed before delivery to the owner, the loss must be sustained by the undertaker.
    2. Louisiana Digest — Builders and Buildings — Par. 5, 30; Obligations — Par. 162, 182.
    When the contract between the parties stipulates the conditions and circumstances under which the work will be accepted, positive evidence is required to prove waiver of the conditions of the contract in that regard.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Seymour James Stewart against Dixie Laundry Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Curtis & Hall, of New Orleans, attorneys for plaintiff, appellant.
    Herbert S. Weil, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues defendant for $100.00, the contract price of materials and labor required to erect an electric sign equipped with a time clock. There was judgment for defendant and plaintiff has appealed.

It appears from the record that either just before, or just .after the completion of the work it was destroyed, presumably by persons unfriendly to plaintiff. Defendant contends that the destruction occurred before completion, and in any event before acceptance by it under the terms of the contract.

Plaintiff relies upon the effect of delivery to an officer of defendant corporation of the keys to the time clock, and the signature by this official of a “job ticket”. This occurred the day before the work was destroyed.

The contract sued on contained the following :

“It is agreed that the whole of the work described below shall be considered as having been completed by the first party (plaintiff) and accepted by the second party (defendant) ■■ whenever any part of said work is used, for the benefit of the second party in which event the second party waives his right to demand a wiring certificate.” .

It is not in evidence that the wiring certificate was obtained, or the work used for plaintiff’s benefit. We do not attach the importance to the delivery of the keys to, and signature of, the defendant’s officer to the “job ticket” that plaintiff does. It certainly was not. equivalent to the wiring certificate nor a waiver thereof. The work during construction Was at plaintiff’s risk Art. 2758, R. C. C.


text:
    No. 10,819
    Orleans
    STATE OF LOUISIANA v. NAPOLEON AVENUE FERRY CO.
    (Apr. 11, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Corporations—Par. 209;, Licenses — Par. 6.

      a corporation operating a ferry on the Mississippi River between the Parishes of Orleans and Jefferson transporting passengers and vehicles from one side of the river to the other, and vice versa, is engaged in business in both parishes, and may be sued in either parish by the , State of Louisiana for a license tax.
    2. Louisiana Digest — Corporations—Par. 209; Courts — Par. 115.
    The District Court of Jefferson Parish, the parish of the corporation’s domicile, has jurisdiction of such a suit, notwithstanding the fact that all passenger fares are collected on the Orleans side and the charges for vehicular traffic collected ' in midstream.
    Appeal from Twenty-fourth Judicial District Cour.t, 'Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by State of Louisiana against Napoleon Avenue Ferry Company.
    ■ There- was judgment for defendant and (plaintiff appealed.
    Judgment.reversed.
    ' Chas. J.' Larkin, Jr., of New Orleans, attorney tot plaintiff, appellant.
    . Bond; .Cur.tis ■& Hall, of New Orleans, attorneys for defendant, appellee. .
   WESTERFIELD, J.

The sheriff and ex officio tax collector for the Parish of Jefferson brings this' suit in the Twenty-fourth Judicial District Court for the Parish of Jefferson for alleged delinquent license taxes due the State of Louisiana.

The defendant filed an exception to the jurisdiction ratione persona and ratione materiae. There was judgment maintaining the exception and plaintiff has appealed.

The argument on the exceptions was, as repeated in this court, that the defendant did no business in Jefferson Parish and that consequently it could not be sued by the tax collector of that parish.

The case was heard so far as the exceptions were concerned, upon the following agreed statement of fact:

“That the domicile of the defendant, as fixed in its charter, is the Parish of Jefferson; that the corporation operates a ferry between-the Parishes of Jefferson and Orleans; that the office of the company, as fixed by a resolution of its board of directors adopted in 1923, is room 606, United Fruit Company. Building, Orleans Parish; that all passenger fares are collected in Orleans Parish and all truck, wagon, automobile and vehicle traffic charges are collected in midstream.”

' The law (Act 205 of 1924, Sec. 36) provides that “all licenses shall be paid in the parish wherein is situáted or conducted the business for which the, license is due.”

It is obvious that defendant is conducting business in Jefferson Parish. The. fact that all passenger fares which represent a part of the proceeds- of business are coR lected on the Orleans side of the river, where the defendant has ah office is ¡immaterial. Transporting freight and passengers from Jefferson to Orleans and vice versa constituted doing business in Orleans Parish, .where the office is maintained and passenger fares collected,-but,' it also involves doing business in Jefferson Parish, where the defendant is domiciled.

That being true, and assuming that defendant might be sued in either, or both parishes, we see no objection, and nothing to complain .of, if the State brings a suit in the parish selected by defendant' as its domicile.

' The judgment appealed from is reversed and it is now ordered that the exceptions to the jurisdiction be ' overruled and the cause remanded for further proceedings not inconsistent with the views herein expressed.


text:
    No. 10,781
    Orleans
    CENTRAL FINANCE CO. v. KEATING
    (Mar. 14, 1927. Opinion and Decree.)
    (Mar. 28, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 302, 304. The vendor’s privilege on movables exists only so long as the property sold remains in the hands of the purchaser. But, where a sale is made by the purchaser, and, his vendee assumes to pay the unpaid price due the original vendor as a part of the consideration of the sale, the privilege follows the property in the hands of the second purchaser by reason of the assumption of the- debt.
    Appeal from First City Court, Section “A”. Hon. W. Alexander Bahns, Judge:
    Action .by Central Finance Company against Mrs. Carrie Keating, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Jas. J. Landry, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

.. Plaintiff, ' as the holder of a promissory note issued in part payment of the purchase price of an automobile, sued for $188.76 'as the balance due on thé noté, ‘caused a writ of sequestration to issue, and seized the automobile in the possession of defendant.

Defendant does not deny his obligation for the amount claimed but says that plaintiff was not entitled to the writ of sequestration, and in his answer claims damages, alleged to have been suffered by him.

There was judgment for plaintiff as prayed for and defendant has appealed.

The basis for the sequestration is the assertion of the right to a vendor’s lien upon the seized automobile. Defendant denies plaintiff’s alleged lien upon the ground that the automobile when seized was not in the possession of the original purchaser, by whom the note sued on was issued and thereafter acquired by the present plaintiff from the original vendor. R. C. C. 3217, 3227. But defendant assumed the payment. of the balance of the purchase price due at the date of his acquisition of the automobile as appears by the following letter:

“New Orleans, Louisiana, “June 7th, 1926.
“Central Finance Company, Inc.,
“826 Baronne Street,
“New Orleans, Louisiana.
“Gentlemen:
“Please be advised that we have purchased from' Mrs. Carrie Keating, divorced wife of Albert J. Comstock, her four-door Ford sedan automobile, 1926 model, motor number 12173587, and as part of the consideration paid her have assumed payment of the outstanding chattel mortgage notes securing payment of the purchase price- of the said car, the said car having been sold by Edwards Motor Company to Mrs. Carrie Keating by act passed before Louis G. Lemle, notary on August 2, 1925. The notes assumed are the last twelve described in the act of sale, being Nos. 4 to 15, both inclusive, at $47.19 each. “Yours very truly,
“MID-CITY REALTY COMPANY, “By (sgd.) J. B. G. Arnoult.
“We accept the above assumption.
«“CENTRAL FINANCE CO., INC.,
“By (sgd.) X X Gill.”

The principle which defendant invokes cannot be disputed. The vendor’s privilege exists only so long as the property remains in the possession of the purchaser. Dreyfous vs. Code, 138 La. 297, and authorities there cited. Even though subsequent purchaser knew of existence of balance due original vendor (supra). But it appears that it is different when the subsequent purchaser assumes to pay the balance due the original vendor.

In De Lisle vs. Succ. of Moss, 34 La. Ann. 164, Justice Bermudez, in speaking of the vendor’s privilege, says (page 166):

“This privilege was unknown in the old Roman Law, as also was the resolutory condition. It is of Gallic creation. The Modern civilians say that it adheres to the entrails of the thing. After delivery the old Roman Law abandoned the vendor selling on credit to the good faith or mercy of the purchaser and declined a resolution of the sale in case' of nonpayment of the price- unless the pactum commissarium had been expressly stipulated.”

Justice Bermudez proceeds with characteristic thoroughness to discuss the exalted nature of vendor’s privilege and concludes that the objections urged to the privilege in the case under discussion can not prevail. These objections are thus stated in the opinion-—

: “The objections made to- the vendor’s privilege claimed are grounded upon the charge that the amount claimed is not a debt created at the time of the sale, and due to the vendor, or to one of his authors, but that it is a debt which existed prior to the date of the purchase, in favor of one who was not a vendor and who was not a party to the act.”

This defense was not sound because “where the purchaser assumes to pay a mortgage debt of the vendor the creditor has the right to proceed against him directly”, and, the opinion [proceeds to declare, the moment the debt due the original vendor was guaranteed the subsequent purchaser the vendor’s lien formed an integral part of the price and when the assumption was agreed to by the vendor he “acquired the right to ask payment of the debt which the vendor’s privilege as effectually as he could have done had he been the holder of the note of the purchaser, furnished in settlement of the price of sale.” See also McCay v. Chambliss, 12 La. Ann. 413; Succession of Fergurson, 17 La. Ann. 256; Conte v. Cain, 33 La. Ann. 966; XII Orl. App. 97. The writ of sequestration was properly issued, and as there is no other defense, the judgment appealed from must be and it is affirmed.


text:
    No. 10,847
    Orleans
    HARRIES v. NORRIS.
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the trial court will be affirmed where clearly correct.
    Appeal- from First City Court, Division “C”. Hon. Wm'. Y. Seeber, Judge.

      There was judgment for defendant and ■plaintiff appealed.
    Judgment affirmed.
    ' D. Sessler, J. P. Sullivan, Claude de Baroncelli, of New Orleans, attorneys for defendant, appellee.
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellant.
   WESTERFIELD, J.

Plaintiff sues for $137.00 as the balance due on a contract for painting defendant’s house.

Defendant resists payment upon the ground that the work was poorly done, necessitating the employment of another painter to finish the work.

The evidence, effective in plaintiff’s favor, at least equals the effect of the countervailing testimony adduced by defendant. Under the circumstances the judgment appealed from must be and it is hereby affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    CANULETTE SHIPBUILDING CO. v. MONDAY
    (Feb. 12, 1927. Opinion and Decree.)
    (Mar. 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Appeal—Par. 475,482.
    Where one of several co-defendants delayed her appeal and the record had been lodged in the Court of Appeal for the other co-defendants, the date on which she files her appeal in the District Court is, on motion, made the date of filing her appeal in the Court of Appeal and the record of her co-defendants used as her transcript.
    2. Louisiana Digest — Partition—Par. 31, 32.
    Under Article 116 of the Code of Practice as'amended by Act 167 of 1924 an attorney at law appointed to represent absentee defendants in a (partition suit cannot join in submitting the case to the ■ court on the report of experts on the same day that the report was filed because he cannot waive time.
    3. Louisiana Digest — Partition—Par. 34, 37.
    Under Articles 256 and 457 of the Code of Practice the report of experts must be homologated and the opposing side has ten days in which to oppose the report. Therefore, a. judgment based on a report that has not been homologated is erroneous.
    4. Louisiana Digest — Partition—Par. 37.
    In view of Articles 448, 673, 675 and 770 of the Code of Practice in a partition suit, the court cannot order a partition by licitation and a sale for the purpose of effecting it, on the report of experts, if the experts have not been sworn.
    5. Louisiana Digest — Partition—Par. 39, 41.
    In view of Articles 1337, 1339 and 1340 of the Civil Code, the law favors partitions of immovable property in kind. Immovable property must be divided in. kind in all cases except when it cannot be done without dimunition in value and loss and inconvenience to some of the co-owners.
    Apipeal from the District Court, Parish of St. T'ammany. Hon. Prentice B. Carter, Judge.
    Action by Canulette Shipbuilding Company, Inc., against William Monday, et al.
    There was judgment for plaintiff and defendants. William Monday, Hal Price, Leander Price and defendant, Laura Price, appealed.

      Judgment reversed and remanded for new trial.
    •L. V.- Cooly, of Slidell, attorney for plaintiff, appellee.
    Harvey E. Ellis, of Covington, and R. S. Ellis, Jr., of Amite, attorneys for William Monday, Hal Price and Leander Price, defendants, appellees.
    Adrian D.- Schwartz, of Covington, attorney for Laura Price, defendant, • appellant.
   ON MOTION TO' DISMISS

ELLIOTT, J.

Canulette Shipbuilding Co., Inc., plaintiff and appellee, moves to dismiss this appeal by Laura Price, on the ground that her petition for, appeal, citation, order, bond,'etc.,'is all there is before the court. That the record or transcript of the case in which the appeal was taken was not filed therewith and is not part thereof, and that the appeal is incomplete.

The record shows that William Monday, Hal Price and Leander Price appealed from the judgment by (petition and order dated January 25, 1926. Their appeal was made returnable to this court on February 20, 1926. Laura Price, co-defendant in the suit and judgment, was not made a party to their appeal.

Canulette Shipbuilding Co., Inc., appellee, moved the dismissal of their appeal on the ground that Laura Price was not a party thereto, nqr before the court. The motion was sustained by judgment rendered June 26, 1926. Canulette Shipbuilding Co. vs. Munday, 4 La. App. 522, 523.

Laura Price appealed from the same judgment based on the same record, making the plaintiff and her three co-defendants parties thereto, while that motion was pending and her appeal was filed in this court at Amite on June 9, 1926, while the record was in the hands of the court and before any action was taken on the appeal of William Monday, Hal and Leander Price. The record was at that time available to her at Amite or Covington for the purpose of being re-filed in connection with her appeal.

The situation as regards the' record not being available at Covington or Amite at the time her appeal was lodged at Amite, having been explained to the court by her counsel at the time the motion to dismiss her appeal was filed, the court granted leave to her counsel to prepare and file instanter a motion to have the record taken and stand as part of her appeal.

The motion was accordingly prepared, filed, heard by the court and taken by the court under advisement. The facts being as above stated, it appears to the court that when her appeal was filed at Amite, the returning point for her appeal, that the record became a part of it, standing in support of her appeal, as much and for every purpose, as it was serving and doing for that of William Monday, Hal and Leander Price; and that refiling it as part of her appeal was not essential.

It does not seem to us that her appeal should, under the circumstances, be dismissed. The request of her counsel to have the record taken instanter and ordered to stand as part of her appeal and for the purposes of the same is therefore granted, and the motion to dismiss is overruled.

ON THE MERITS.

Canulette Shipbuilding Co., Inc., alleges that it is the owner and holder in indivisión with William Monday, a resident of Westonia, Mississippi, Hal Price and Leander Price of Enterprise, Mississippi, and Laura Price, residence unknown, but thought to be somewhere in Europe,' of lots Nos. 1, 2, 3, 4 and the NW% of the fractional SW% of fractional Section 21, T. 9 S., R. 15 E., containing one hundred and forty-five acres, situated in the Parish of St. Tammany, in the proportion of 1/3 to the petitioner, 1/3 to William Monday, and 1/9, each to Leander Price, Hal and Laura Price; and that it is unwilling to remain the owner of the same in indivisión with said parties any longer, and desires a partition; further alleged that said tract of land was not divisible in kind and must be sold to effect a partition, and brought suit against said parties accordingly.

The court appointed S. W. Provensal curator ad hoe to represent the four absentee defendants, and appointed on the petition of the plaintiff at the same time appraisers and experts to value the property and report to the court whether it was divisible in kind or not. The court appointed Homer Fritchie and G. A. Fritchie as such, directing that they be sworn.

On June 5, 1925, S. W. Provensal accepted service, waived citation all rights reserved, signing his waiver S. W. Provensal. On July 13, 1925, he filed an answer to the petition admitting the co-ownership of the property by the plaintiff and the defendants, as alleged by the plaintiff in averment one • of its petition; but plaintiff’s averment.No. 4, as to how it acquired an interest- in the property, was denied. The ■ answer also denies that the property is indivisible: in kind and must be sold to effect a partition. On the same day that the answer was filed, there was also filed a 'written- document dated July 10, 1925, signed by Homer Fritchie • and G. A. Fritchie, not addressed, to the court, but filed In court on the same day as the answer in which ' they described the property and-value-.-., it ; at. .$2000:00,. and state that., in their opinion “it is impossible to divide it in kind without doing material injustice to some of the owners and greatly diminishing the value of the land. That it is impossible to divide the land in equal ■ lots in value and amount, because some of the land i is very low and some high. A small portion fronts a gravel road. There is timber on part of the land and part of it is denuded. There is also an old house on the land which renders it more impossible to divide in kind.”

The case was set for trial on the same day that the answer and the above document were filed; submitted to the court and judgment rendered in favor of the plaintiff and against the defendant, recognizing the interest of each of the land, as alleged by the plaintiff. .A partition wa.s decreed and ordered effected by licitation, the-sale to be made for cash with the benefit of the appraisement, as shown by the report of the experts filed therein.

Laura Price has appealed and urges various reasons why the judgment should be set aside. She urges a defective verification of plaintiff’s petition against her. Plaintiff’s petition was verified by its attorney. The plaintiff is a resident corporation and the affidavit does not show that, any of the officers of the corporation were absent at the time, except the president. The law on the subject, Act 228 of 1924, pro,vides that the president, vice-president or other managing -officers should verify the petition. The law further provides that .the attorney may- verify in all- cases when the party or parties are absent from the parish, and in all other cases when, it is impracticable to obtain the. verification of, the. party or parties, and that'want of verification must be taken advantage of, if at all,in the case of a petition .by an- exception filed, in limine litis, and also contains other provisions from. all of which. it is, not clear that a defective verification should .result in the dismissal of a suit. ■ It seems to almost say that- if there is no verification the suit may proceed on the petition just as was done before the adoption of the present method of pleading.

This view of the law seems reasonable when all the defendants are residents, because they can appear and either waive it to proceed as they see proper. But when the defendants are non-resident absentees and the verification is for the purpose of obtaining jurisdiction in order to act against them and their property in the court, the reason which exists when the defendants are, residents does not apply, because it is well settled in law that nothing can be waived that the statute requires when acting against non-resident absentees for the purpose of subjecting their property and rights to the process of the courts.

It is also urged against the judgment appealed from that S. W. Provensal in accepting service and waiving citation, acted individually and not as an attorney and curator ad hoc. C. P., Art. 116 (amd. 167 of 1924), authorizes attorneys at law appointed to defend absentees, to waive service of the petition and citation.

We take cognizance of the fact that S. W. Provensal is an attorney at law authorized to practice law in this State, and that under the statute he had a right to accept service and waive citation; but it should have been done as attorney and curator ad hoc and not as an individual. The pleading Act 228 of 1924, provides that when an attorney appears as an attorney for another person, he must appear as attorney or as curator ad hoc. The capacity in which he acts must appear, as provided in the statute. An appearance individually is not such as the law requires, even though the party is an attorney. But be that as it may, as to the result of a defective verb fication and the acceptance of service andi waiver of citation by an attorney who has acted individually and not in the capacity in which he was appointed to act on a judgment against absentees, we withhold opinion and do not decide, preferring to rest our judgment on other grounds which we will now notice.

Under the law, C. P., Art. 116 (amd. 167 of 1924), an attorney appointed curator ad hoc to represent an absentee, cannot waive time or any legal defense. In answering the petition of the plaintiff the attorney at law appointed to represent the absentee defendants, admitted the co-ownership of the plaintiff with the absentee defendants. He could not do that; the party who brings a partition suit against absentees must prove that he is an owner in the land with the absentees, as alleged in his petition.

A judgment based on an admission of ownership in the plaintiff by the attorney appointed for absentee defendants, does not prove the plaintiff’s ownership and same cannot be regarded as proved when there is no other proof of the ownership. The ownership of the plaintiff must be proved aliunde and contradictorily with the plaintiff in open court.

The note of testimony shows that the plaintiff offered, produced and filed in evidence a certified copy of a deed from Walter Galatas, sheriff, to the plaintiff, as appears from certain records of the Parish of St. Tammany. This offering was made pursuant to plaintiff’s allegation No. 4 in its petition to that effect, and which the answer of the appointed attorney for the absentee defendants denies. The proffer is all right, and if there was a deed in the record from Waiter Galatas, sheriff, to the Canulette Shipbuilding Co., Inc., as stated, it would be all right; but it is not sufficient in an action of this kind to make a proffer of evidence. The proffer must be followed up by an actual production, filing and placing the evidence in the record.

There is no title from Walter Galatas, sheriff, to Canulette Shipbuilding Co., Inc., in the record in support of plaintiffs averment that it is the owner of an interest in the land described in its petition; consequently, no proof of that fact.

The attorney at law appointed for these defendant absentees joined in submitting the case in their behalf to the court on the report of experts on the same day that the report was filed. He could not do that. The law does not permit him to waive time. C. P., Art. 116 (amd. 167 of 1924). The law provides that when a court is to act on the report of experts, the report must be homologated and the opposing side has ten days in which to oppose the report. C. P., Art. 256 and-457. The report in this case had not been homologated, and never was.

In addition to the above, the report was not sworn to and the record does not indicate that the experts were sworn. The record contains a cost bill which purports to ¡provide for the cost in the case, but it contains no charge for swearing appraisers and experts.

The law C. P., Art. 448, directs that experts must be sworn; that their oath is to be taken in writing and annexed to their report to the court. We find and hold that these experts were never sworn.

The law provides in regard to appraisers that they must take an oath before they act as appraisers. C. P., Art. 673, 675 and 770.

T'he minutes of the court and the note of testimony shows that these experts were not called as witnesses; they were not asked any questions by the attorneys when the case was submitted to the court for_ judgment; and the minutes and the note of testimony shows that the case was submitted to the court on this unsworn and unproved report, and the proffer as to title from Walter Galatas, sheriff, to Canulette Shipbuilding Co., Inc., and that the judgment appealed from is based thereon, and nothing else.

In a suit for partition the court cannot order a partition by licitation and a sale for the purpose of effecting it, on the report of experts, if the experts have not been sworn. 2 N. S. I.; Locke & Co. vs. Dakin & Dakin, 15 La. 423; Vincent vs. Sharp, 10 La. Ann. 463; Saenger Amusement Co. vs. Masur, et al., 158 La. 745, 104 So. 701.

The law favors partitions of immovable property in kind. Immovable property must be divided in kind in all cases except when it cannot be done without diminution in value and loss and inconvenience to some of the co-owners. C. C. Art., 1337, 1339, 1340; Land vs. Smith, 44 La. 931, 11 So. 577; Mackin vs. Wilds, 106 La. 1, 30 So. 257; Kaffie vs. Wilson, 130 La. 350, 57 So. 1001. For other case see Louisiana Digest, vol. 5, Subject, Partition, pp. 784 and 785.

It is not necessary to notice matters occurring since the rendition of the judgment.

The judgment appealed from is erroneous and must be avoided and set aside.

The judgment appealed from herein is for said reasons annulled, avoided and set aside, and the case is remanded to be proceeded with anew and as the law provides. The plaintiff, Canulette Shipbuilding Co., Inc., appellee, to pay the cost in both courts.


author: LECHE, J.

text:
    No.-
    First Circuit
    FONTENOT v. LYON LUMBER CO.
    (Feb. 12, 1927. Opinion and Decree.)
    (Mar. 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    See syllabus to the case of Lebourgeois vs. Lyon Lumber Company. Reported on page 216.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by Mrs. Ameluse Fontenot against Lyon Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. C. Rownd, of Springfield, attorney for plaintiff, appellee.
    Leslie P. Beard, of New Orleans, attorney for defendant, appellant.
   LECHE, J.

The plaintiff sues for compensation for the death of her husband, who was gilled by lightning at the same time and under the same conditions, as the employee in the case of LeBourgeois versus the same defendant, this day decided.

For the reasons assigned in that case, the judgment herein appealed from, is affirmed.


author: WEBB, J.

text:
    No. 2200
    Second Circuit
    HARDY & HARDY v. WENZEL
    (Apr. 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 694.
    Where neither of the parties argue or file briefs and a review of the evidence shows it to be correct the judgment will be affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Hardy & Hardy against Victor Wenzel.
    There was judgment for • plaintiff and defendant appealed.
    Judgment affirmed.
    Hardy-& Hardy, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The plaintiffs, Hardy & Hardy, bring this action against defendant, Victor Wenzel, to recover judgment for a balance alleged to be due plaintiff for* professional services and funds paid out by plaintiffs for the account of defendant.

Among the items on the account is a charge for services in an action to render a foreign judgment executory, and the sole defense made by the defendant is as to that item, it being contended that the charge was excessive and that the defense of- that suit had not been properly handled.

On trial, judgment was rendered in favor of the plaintiffs as prayed for and defendant appealed.

OPINION

Neither of the parties ¡presented the case in argument or hy brief and we have, after reviewing the evidence, found that the account was proven to be correct, and neither of the defenses interposed is supported by the evidence, and the judgment appealed from is affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    PARKER v. STATE ASSURANCE CO.
    (Feb. 12, 1927. Opinion and Decree.)
    (Mar. 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 40, 42, 92.
    The clause in a fire insurance policy that “this entire policy shall be void if the subject of insurance be personal property and be or become encumbered by a chattel mortgage,” does not apply to new chattels bought and mortgaged as the policy went in effect because these chattels were not covered by the prior policy as issued.
    2. Louisiana Digest — Appeal—Par. 729; Insurance — Par. 184.
    Where, the plaintiff in a suit to recover from a fire insurance company failed to ¡prove the value of the goods burned, the case will be remanded to the lower court for the purpose of establishing that value.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by Sims E. Parker against State Assurance Co., Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case' remanded for new trial.
    Warren O. Watson, of Baton Rouge, attorney for plaintiff, appellant.
    J. C. Hollingsworth, of New Orleans, attorney for defendant, appellee.
   MOUTON, J.

April 7, 1925, the defendant company insured the household goods, furniture and wearing apparel of the plaintiff against fire. On August 29, 1925, while the insurance policy issued by defendant was still in force, the residence of the plaintiff caught fire and was burned with most of its contents.

Plaintiff brings this suit against defendant company claiming that he has suffered a loss in the sum of $800.00 by the destruction by fire of the goods and effects which were covered by the policy. He also prays for 12 per centum damages on the total amount of his loss, with attorney’s fees and^ legal interest.

His demand was rejected. He appeals.

The policy provides, as follows:

“This entire policy, unless otherwise provided by agreement entered hereon or added thereto, shall be void-if the subject of insurance be personal ¡property and be or become encumbered by a chattel mortgage.”

More than four months after the issuance of the policy, on August 20, 1925, plaintiff bought household furniture in the sum of $572.83, from the Globe Furniture Company of the City of Baton Rouge. On The same date he executed a chattel mortgage in favor of that company to secure the purchase price of the goods. This chattel mortgage was restricted to these goods and did not include the household goods and wearing apparel that were covered by the policy which had, on April 7th, been issued to plaintiff by defendant company.

The clause of the policy above referred to pertinent to the issue presented reads in part, viz.: “If the subject of insurance be personal property, and-become encumbered by a chattel mortgage.”

The “subject of insurance” mentioned in that proviso has reference to the personal property which was intended to be protected by the policy. The clause so inserted in fire insurance policies is to prevent the insurer from burdening the property with some future encumbrance, because if encumbered, the owner’s interest in the goods or effects might be lessened and as a result, the risk correspondingly increased. If the insured were permitted to burden the property with a chattel mortgage, he could encumber it to its full value, and such a situation it can easily be seen could be turned into a source of profit. In this case, however, plaintiff gave no chattel mortgage on the effects he had insured with defendant company. T'he risk was not in any way increased by the chattel mortgage he gave to the Globe Furniture Company as that mortgage was restricted, as above stated, to the goods he had bought from that company. It is evident that the clause prohibiting the encumbrance had reference to the property which was being insured by the company, and was not intended as a prohibition to a chattel mortgage given four months thereafter on the household effects which were purchased from the Globe Furniture Company. The giving of the mortgage to that company was not a violation of the policy herein sued upon.

Plaintiff testified to the amount which his household goods and wearing apparel had cost him. This showing fell short of the proof required in cases of this character. It was incumbent upon him to establish the value at the time of the fire that destroyed the goods. Germier vs. Springfield Fire & Marine Ins. Co., 106 La. 341, 33 So. 361.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; that this case be remanded for the reception of proof to establish the value of the household goods, effects and wearing apparel at the time of the fire, and which were covered by the policy issued to plaintiff by defendant company, as hereinabove expressed; that appellee pay costs of appeal, and those of the lower court to abide the decision of the case.


author: ODOM, J.

text:
    No. 2252
    Second Circuit
    SNIDER CIGAR & TOBACCO CO. v. CRAVENS
    (Apr. 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 694.
    Where the appellant does not appear to point out any error in the judgment and the court finds no error therein, the judgment must be affirmed.
    Appeal from the City Court of the City of Shrevepoi't. Hon. David B. Samuel, Judge.

      Action by C. C. Snider Cigar & Tobacco Company against J. Prank Cravens operating as tbe Ardis Building Cigar Stand.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    J. Prank Cravens, of Shreveport, in persona propria.
   ODOM, J.

Plaintiff brought suit in "the City Court of the City of Shreveport, Louisiana, to recover of defendant the sum of $145.95, the amount being alleged to be due as a balance on an open account for merchandise sold and delivered to defendant.

The defendant was duly cited and made appearance in the lower court for the purpose of filing an exception, but otherwise made no appearance.

Just what the defense to the suit is, does not appear from the record.

There was judgment in favor of the plaintiff and against the defendant as prayed for.

There is filed in evidence a sworn itemized account showing goods and merchandise sold to defendant amounting to $161.25 with credits amounting to $15.30, leaving a balance due of $145.95.

This is the only evidence found in the record.

The appellant, since the filing of the record in this court, has made no appearance, either by filing brief or otherwise.

The appellant not having appeared, to point out any error in the judgment and we finding no error therein, the same must be affirmed.

Por the' reasons assigned, it is therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both -cburts.


text:
    No.--
    First Circuit
    STEVENS v. ILLINOIS CENT. R. R. CO.
    (Mar. 8, 1927. Opinion and Decree.)
    (May 3, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Pleading—Par. 62; Railroads — Par. 64, 80.
    In view of Act 12 of 1924, the fact that one fails to stop, look and listen before crossing a railroad track is not negligence per se and an exception no. cause of action on that ground will be overruled.
    2. Louisiana Digest — Automobiles—Par. 5, 7 (b), 8.
    The negligence of an automobile driver who did not stop, look and listen before crossing a railroad track where the accident could have been avoided had she done so, is clearly established.
    3. Louisiana Digest — Railroads—Par. 60, 62.
    Where the evidence in a crossing accident case shows that although there were box cars parked near the crossing yet the railroad ■ used all alarm signals required by law, the railway is not negligent.
    4. Louisiana Digest — Automobiles—Par. 4.
    The driver and owner of an automboile owes the duty of protecting her in-invited guests from all harm.

      5. Louisiana Digest — Marriage—Par. 97.
    In view of Article 2315 of the Civil Code and Act 186 of 1920, damages suffered by the wife are her separate and personal property and her husband cannot recover for them.
    6. Louisiana Digest — Damages—Par. 105.
    Fifteen hundred dollars is sufficient quantum of damages for personal injuries which partially paralyzed the right side and affected one of the eyes of a lady 60 years of age.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Mrs. Nancy Stevens, et al., against Illinois Central Railroad Company, et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. W. Spiller, of Hammond, attorney for plaintiff, appellee.
    Edward Rightor, of New Orleans, attorney for defendant, appellant.
    Mrs. Mattie D. Tycer, Carroll Buck, of Amite, for defendant, appellee, Illinois Central Railroad.
   LECHE, J.

Mrs., Nancy Stevens was invited by Mrs. Mattie D. Tycer to accompany her, in her Ford sedan, on a trip from the latter’s home to the town of Hammond. The road upon which the journey was made, crosses the main line of the Illinois Central Railroad at Tickfaw, frqm east tq west, and then, more or less, parallels the railroad tracks in a southerly direction down to the town of Hammond. The two ladies, after their visit to Hammond, were returning along the same road, and when crossing the railroad tracks at Tickfaw, met with the unfortunate accident that gave rise to the present litigation. The automobile, which belonged to Mrs. Tycer and was being driven by her, collided with a southbound freight train of the railroad company, was badly wrecked, and Mrs. Stevens, the guest of Mrs. Tycer, was seriously injured. In this suit Mrs. Stevens and her husband make claim for damages both against Mrs. Tycer and the railroad company.

The District Court rendered judgment in favor of plaintiff, Mrs. Stevens, and against Mrs. Tycer but rejected the demand of plaintiffs against the railroad company. Both of the plaintiffs and Mrs. Tycer have appealed from that judgment.

Plaintiffs in their petition charge that the collision resulted from the fault and through the joint negligence of both the railroad company and Mrs. Tycer. They allege that Mrs. Stevens was seriously and permanently injured, and they ask for judgment against the defendants in solido, for the sum of fifteen thousand dollars in favor of Mrs. Stevens and in the sum of five thousand six hundred dollars in favor of her husband, John Stevens. The trial judge’s finding is in favor of Mrs. Stevens and allows her fifteen hundred dollars against Mrs. Tycer.

Before answering to the merits of plaintiff’s petition, Mrs. Tycer excepted on the ground that plaintiff’s allegations failed to show a cause of action as against her, in this, that the only fault charged to her, is her failure to stop before crossing the railroad tracks and that such failure did not constitute negligence per se. In support of her plea, she cites the case of Aymond vs. Western Union, et al., 151 La. 187, 91 So. 671, where it was held that the rule to sto:p before crossing a railroad track, does not require one to come to a position of absolute immobility. This construction of the rule says the court, is based on common sense and common practice. But where it appears that a position o.f absolute immobility would have enabled the automobile driver crossing a railroad track, both to see and to hear an approaching train, we have no doubt that the court would not sanction the construction of the rule as applied in the Aymond case.

Act 12, p. 16, of 1924, adopted more than two years after the rendition of the decision in the Aymond case, has however, removed all doubt on this subject. The title of the Act says: “full stop” and the provisions of the same require automobile drivers to stop not less than 10 nor more than 50 feet from the nearest track. But admitting that one must come to a “full stop” before driving his automobile across a railroad .track, Mrs. Tycer contends nevertheless, that the proviisons of the Act No. 12 of 1924, only apiply to actions by drivers of automobiles for damages against railroads. She was driving the automobile in this case, but she is not suing the railroad company for damages, and therefore, she contends, plaintiffs cannot invoke the railroad stop law against her. We see nothing in the provisions of the Act to justify such a narrow construction of its object and purposes. The announced purpose of the statute is to prevent collisions between railroad trains and motor driven vehicles and the question as to what may constitute negligence on the part of the driver of an automobile, is expressly not restricted to a violation of the provisions of the Act but is left to the legal discretion of the jury or of the court. The pertinent clause in the Act is couched- in this language :

“In the trial of all actions to recover personal injury or property damages sustained by any driver of such motor driven vehicles by collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions of this Act, the question of whether or not the said violation was the sole or proximate cause of the accident and injury shall be for the jury to determine regardless of the penalizing feature qf this Act: That the violation of this Act shall not affect recovery for damages and the question of negligence or the violation of this Act shall be left to the jury, and the contributory negligence statutes of Louisiana shall apply in these cases as in other eases of negligence.”

The evident purpose of the Act is to protect from harm, and to secure the . safety qf all persons, be they passengers in automobiles or drivers of automobiles, and the regulations therein contained with regard to the manner of approaching and going over railroad crossings, are merely in furtherance of that end, and are not designed solely to establish the rights and responsibilities of drivers of automobiles as against railroad companies. The negligence of the driver of an automobile who fails to stop before crossing a railroad track, is not only a defense which may be pleaded by the railroad company, but from the expressed purpose of the Act, furnished ground for damages against such driver in favor of the occupants of the automobile who might be injured by his failure to stop.

For these reasons we believe the trial judge properly overruled Mrs. Tycer’s exception of no cause of action.

The facts in this controversy are not seriously contested. • The road from Hammond, upon which Mrs. Tycer and Mrs. Stevens were travelling, is along the west side of the Illinois Central tracks, contiguous to the railroad right of way and runs north and south. The occupants of the automobile could see the tracks of the railroad for a considerable distance, probably several miles, to the north and south of the Tickfaw crossing. When the automobile was turned to the east to make the crossing, it was still some forty or fifty feet and perhaps more, from the nearest rails. Here there is a switch ' track besides the ..two traffic tra.cks over the road bed. Mrs. Tycer whose bounden duty it was, to stop, look and listen, acknowledges that she did not stop and she says that her view to the north was obstructed by three, box cars which were on the switch track and that she slowed down, kept going across and only saw the southbound freight train when it was almost on the automobile. She at once steered and turned to the south, on the road bed, but was struck a glancing blow from the rear left by the train. The automobile was partially wrecked and Mrs. Stevens was seriously injured.

The three box cars and the telegraph poles did interfere to some extent with a clear view of the railroad tracks towards the north. But these obstructions could . not completely conceal the incoming freight train. It is established beyond doubt that the usual alarm signals were given by the engineer in control of the locomotive. Whistles were blown, the bell was ringing, the noise of the rolling train could be heard, the smoke of the locomotive and in fact the whole train could have been seen by Mrs. Tycer, if she had used the ■least diligence and caution.

The purpose of stopping an automobile before crossing a railroad track, is to enable, the occupants of the automobile to see and hear. The greater the difficulty of seeing and hearing, the greater the necessity, of stopping, looking and listening. Barnhill vs. T. & P. Ry. Co., 109 La. 44, 33 So. 63; Ortolana vs. Morgan’s L. & T. R. R. & S. S. Co., 109 La. 902, 33 So. 914; Sutton vs. Lee Logging Co., 121 La. 557, 46 So. 649; Perrin vs. N. O. Terminal Co., 140 La. 819, 74 So. 160. Mrs. Tycer did not stop and for that reason, did not see and could not hear. Her negligence is established beyond doubt by the evidence in this record. . .

It is equally well known that there was no negligence on the part of the railroad company. There was no. death trap at this crossing. The box cars were parked, where the company had the right to park them for the benefit and convenience of its shippers. The sign post was located at the crossing as required by the statute and the alarm signals were given in due time. We therefore fail to see any reason to apply in this case, the decisions in Holstead vs. V. S. & P. R. R., 154 La. 1099, 98 South. 679, and Draiss vs. Payne, 158 La. 652, 104 South. 487.

We agree with the learned trial judge that the collision was due entirely to the fault and negligence of Mrs. Tycer and not to any fault on the part of the railroad company.

The plaintiff, Mrs. Stevens, was a guest by invitation of Mrs. Tycer, and Mrs. Tycer owed her the duty of protecting her from harm. Cristadoro vs. Hon. Behren’s Heirs, 119 La. 1028, 44 So. 852; Gray vs. Foundation Company, 151 La. 7, 91 So. 527.

The plaintiff, Mrs. Stevens, was allowed damages against Mrs. Tycer in the sum of fifteen hundred dollars. She complained of the insufficiency of this amount. John Stevens, her husband, also complains of the ruling whereby his claim was rejected.

T'he reason why the husband, John Steven’s claim was rejected does not appear from the record, nor is it argued in brief of either counsel. In plaintiff’s brief, it is said that Mrs. Stevens incurred an actual expense of aipproyimately six hundred dollars for medical attention, hospital bills, etc., and that yet the court failed to award him this item of expense. According to the decision in LaGroue vs. City of New Orleans, 114 La. 253, 38 So. 160, he had the right to join in his wife’s suit for damages. Of course, he has no iuterest in the damages suffered by his wife on account of her injuries. These damages are her separate and personal property. Act 186, p. 304 of 1920. But he could, according to that decision, recover in the suit by his wife the losses and expenses which he incurred for medical attention to his wife. The finding of the trial judge is nevertheless correct on the merits of Mr. Steven’s claim. In his testimony Mr. Stevens says he had to borrow five hundred and seventy-five dollars from Mrs. Tycer, and on being asked the leading question whether that money was spent for Mrs. Stevens, he answered, “yes”. He gives no details as to how this sum was spent and we do not believe that this testimony is sufficient to serve as a basis for a judgment in his favor.

As to the quantum of damages fixed by the District Judge in favor of Mrs. Stevens, we see no reason to increase the amount. Mrs. Stevens is over sixty years of age, her husband says that she is partially paralyzed on the right side and that one of her eyes was affected by the injuries which she received. It is difficult to say to what extent she is thereby affected. We have no doubt the trial judge exercised proper legal discretion in making his estimate of damages, and we have no reason to alter his finding.

For these reasons the judgment appealed frqm is affirmed.


author: CLAIBORNE, J.

text:
    No. 9948
    Oi leans
    GUIDRY v. TEXAS & PACIFIC RY. CO., Appellant
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 135.
    In an action against the carrier for damage to goods the presumption of liability is against him and the burden is upon him to prove that the loss occurred without his fault.
    Appeal from Twenty-fourth Judicial District Court. Hon. L. Robert Rivarde, Judge.
    Action by M. L. Guidry against Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Prowell & McBride, of New Orleans, attorneys for plaintiff, appellee.
    John E. Fleury, of New Orleans, attorney for defendant, appellant.
    JONES, J. Dissents.
   CLAIBORNE, J.

This is a damage suit against the defendant for delivering vegetables in a damaged condition.

The plaintiff alleged that, on February 23, 1922, he shipped over defendant’s road one carload of vegetables from Hahnville to Gridley, Macon & Co., Chicago, composed of the following:

127 barrels shallots.
20 barrels carrots.
6 barrels beets.
2 crates cabbage.

That they were all in good condition at the time of shipment and all properly loaded; that the car arrived in Chicago on February 28, 1922, five days after shipment; that the vegetables were then found to be in a heated and decayed condition, the majority being unfit for human consumption; that if the car had arrived in Chicago in good condition they would have sold for $1157.00; but that the entire carload sold for $112.18, equal to a loss of $1044.82; that this loss was caused by the defendant “not properly transporting the said car and not properly icing and caring for same during the course of transportation.”

Defendants admitted the shipment of the vegetables and their arrival in Chicago on February 27th at 3:45 p. m. in a decayed condition, but denied all the other allegations of the petition; that previous to the, loading of the car they had properly iced it and re-iced it at all regular icing points during its journey from Hahnville to Chicago; that it was not through any fault of theirs if the vegetables arrived' in a decayed condition, but that it was evidently due to the inherent nature of the vegetables themselves.

There was judgment in favor of the plaintiff for $744.00 and the defendants have appealed.

. The law of the case stated in C. C. 2754 is . as follows:

“Carriers and watermen are liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.”

The burden of proof was upon ’the defendant to show the uncontrollable event and that it was free from fault. Flash, Hartwell & Co. vs. New Orleans, J. & G. N. R. Co., 23 La. Ann. 353; Julien vs. Capt. of Steamer, 27 La. Ann. 377; Maignan & Laborde vs. New Orleans, J. & G. N. R. Co., 24 La. Ann. 333; National Rice Milling Co. vs. New Orleans & N. E. R. Co. et al., 32 La. 615, 61 South. 708; McIntosh vs. Gastenhoffer, 2 Rob. 403; Kelly vs. Benedict, 5 Rob. 138; Chapman vs. New Orleans, J. & G. N. R. Co., 21 La. Ann. 224; Brauer vs. Barque Almoner, 18 La. Ann. 266; Mahon vs. Steamer Olive Branch, 18 La. Ann. 107; Succession of Perret, 17 La. Ann. 302; Watts & Co. vs. Steamboat Saxon, 11 La. Ann. 43; Grieff & Co. vs. Switzer, 11 La. Ann. 324; Lengsfield vs. Jones, 11 La. Ann. 624; Whitney & Co. vs. Gauche, 11 La. Ann. 432; Brourseau & Co. vs. Hudson, 11 La. Ann. 428; Ship Rappahannock vs. Woodruff & Co., 11 La. Ann. 698; Edward vs. Steamer Cahawba, 14 La. Ann. 224; Tardos vs. Ship Toulen, 14 La. Ann. 430; Montgomery vs. Ship Abbey Pratt, 6 La. Ann. 410; Steamer Jean Webre vs. Kendall Carter & Co., 12 La. Ann. 446; Price, Frost & Co. vs. Ship Uriel, 10 La. Ann. 413; Bond vs. Frost, 8 La. Ann. 299; Bliss vs. Patrick, 6 La. Ann. 546; Bond vs. Frost, 6 La. Ann. 802; Shaw vs. Gondolfo & Co., 9 La. Ann. 33; Benadon vs. Nolte, 7 Mat. (O. S.) 283; Hunt vs. Morris, 6 Mart. (O. S.) 681-682; Patton vs. Pickles, 50 La. Ann. 857, 24 South. 290; Hopkins vs. New Orleans Ry. & Lt. Co., 150 La. 61, 90 South. 512; Spurlock vs. Shreveport Traction Co., 118 La. 1, 42 South. 575; State ex rel. Lindner vs. City of New Orleans, 110 La. 405, 34 South. 582; Lehman, Stern & Co., Ltd., vs. Morgan’s La. & Tex. R. & S. S. Co., 115 La. 1, 38 South. 873; Southern Cotton Oil Co. vs. New Orleans & N. E. R. Co., 146 La. 541, 83 South. 821; Savings & Homestead Assn. vs. Frank, 146 La. 223, 83 South. 491.

The Civil Code should prevail as it is not in conflirt with federal law or jurisprudence.” 132 La. 615 (651), 234 U. S. 412, nor with the common law, 10 C. J., p. 132, S. 168, p. 377, note C.

“Where the class of goods shipped requires refrigeration it is the duty of the carrier to provide a supply of ice sufficient for the purpose not merely at the point of shipment hut at such places along its line as will reasonably insure, a safe transit to the point of destination.” 10 C. J. 92 S. 101; 133 Iowa 522; 110 N. W. 897.

The plaintiff has established by his own testimony and that of Henry Zeringue and M. L. Guidry that the vegetables were in first-class condition when shipped, and that the weather was cool; Zeringue had no interest in the shipment and had been raising vegetables thirty years.

A. W. Scholz, commission merchant in Chicago, testifies that the vegetables were in a heated condition, especially the shallots, which were yellow and slimy, and the carrots were badly heated “due to improper icing of the car bunkers being less than one-third full”, and “were practicaly unsalable”; the air in the car was too warm.

G. W. Bollbach, vegetable salesman for Guidley, Maxon & Co., of Chicago, for thirty years: “Beets and cabbages were but slightly affected, carrot tops all yellow, shallots slimy and yellow due to improper refrigeration of car; due to their heated condition, together with the warm air in the- car and the bunkers being about one-third full of ice, bunkers closed.”

L. J. Labry, agent of the defendant railroad at Hahnville, testified that the car arrived there at 10 a. m., February 22, fully iced; the plaintiff released the car at 4 p. m., February 23.

A. P. Harvey testified that he put four tons or 8000 pounds of ice in the bunkers of the car at New- Orleans prior to sending it to Hahnville in February.

H. Ruppert, employed by defendant in February to check, and re-ice freezers or refrigerator cars; the car in suit arrived in the city at 3 a. SR of the 24th with bunkers one-quarter full of ice, or 1500 pounds to each end; he added 5000 pounds; at 5:30 the car was delivered to the Illinois Central; he makes a rough record of these facts himself and then his son writes it out for him; his son is also employed by the Illinois Central as a messenger; he is 17 years of age.

C. F. Seiler, freight agent for the Illinois Central, knows nothing about icing, but his records show that when the car left the station its bunkers were full of ice.

H. M. Carruth, yard clerk at McComb City, testified that 900 pounds were put in the car at 5:10 a. m., February 25, 1922.

F. C. Reaves, icing clerk for Illinois Central at Nonconnah, Tennessee, put 600 pounds of ice in car; fourteen-fifteenths full of ice. ■

A. A. Ulrich, refrigerator clerk at Nonconnah, Tennessee, for Illinois Central Railroad, issued instructions to. re-ice car full capacity; car fourteen-fifteenths full; 600 pounds needed.

E. W. Duncan, icing foreman for I. G. Railroad at Mounds, Illinois, testified from records that the car was iced .by him on February 26 with 600 pounds of ice.

E'. Fl McPike, manager of perishable freight service of Illinois Central system; has made special study of perishable freight of fruits, veg'etables and other commodities, and icing, ventilating and refrigerating these cars. After enumerating the different p'óints of re-icing óf the vegetables in suit he says:

“It is my opinion that the alleged damaged condition in which these vegetables were upon arrival at Chicago was either the direct .result of their own inherent nature and tendency to deteriorate and decay, or were attributable to their bad condition at time of loading, or some other cause before the receipt of the car by the Illinois Central Railroad.”

The outside temperature was as follows:

1922 — Feb. 24, New Orleans________60 degrees
Feb. 25, McComb ________________58
Feb. 25, Gwin ......................50 “
Feb. 26, Nonconnah ...... — 40 “
Feb. 26, Mounds ....... 40
Feb. 27, Chicago ________________32

The evidence establishes beyond a doubt two essential propositions: 1st, that the vegetables were shipped in good condition and that they reached their destination in Chicago in a damaged condition. The burden of proof was upon the defendants to account for that change. They have attempted to show that the change occurred from the inherent nature of the vegetables and their tendency to deteriorate, and for that purpose they (produced the opinion of their expert, E. T. McPike. But there is no testimony that any of the vegetables of the kind shipped by the plaintiff would spoil within the period of five days if given the usual proper attention. Therefore, this testimony cannot avail the defendants.

There is, therefore, left only one escape for the defendants, and that is that the car was properly iced. It is true that employees of the defendants testify that the bunkers of the car were kept supplied to capacity with ice. But the testimony of these witnesses must be taken with all the influences of interest and uncertainties of times and conditions. They handle thousands of cars and s-peak of occurrences years behind and mostly from records. There is every occasion for error and confusion. Their testimony is confronted by the contradiction of witnesses who opened the car in Chicago and by the stern fact that when the car was opened at Chicago the bunkers were only partly- filled with ice, the air within the car was warm, and the vegetables were heated and spoiled.

The defendants carry thousands-of vegetables from New Orleans to Chicago in refrigerator cars, and there is no testimony that vegetables plucked as these were from the ground a few hours before shipment, placed in refrigerated cars, and delivered within five days, were unfit for consumption at destination, as in Corso & Co. vs. New Orleans & N. R. Co., 48 La. Ann. 1296, 20 South. 752.

Opinions and testimony must yield to stubborn facts. McCubbin vs. Hastings, 27 La. Ann. 718; State vs. Crozat, 8 La. Ann. 297.


text:
    No. 2785
    Second Circuit
    RUTLEDGE v. HARRELL
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Prescription—Par. 35, 36; Mandate — Par. 48, 50.
    A power of attorney showing that the president and secretary of a corporation are authorized to make a transfer, at-' tached to a deed signed by the president alone, is sufficient transfer of title to serve as the basis of prescription of ten years.
    2. Louisiana Digest — Prescription—Par. 37.
    The State of Louisiana vested an equitable title in the puchaser as soon as the title of the state was confirmed, the state having sold the warrant under which the location was made by the purchaser. Therefore, it was the equivalent of a final receipt and operated as a severance of the land from the public domain and is sufficient title to serve as a basis of the prescription of- ten years.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of More-house. Hon. Percy Saridel, Judge.
    • Action by W. J. Rutledge against S. J. Harrell.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Todd & Todd, of Bastrop, attorneys for plaintiff, appellant.
    Mad'son & Madison, of Bastrop, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, W. J. Rutledge, alleging title by mesne conveyances from the United States to SW% of NW% of Section 17, Township 22 North, Range 7 East, of Morehouse parish, Louisiana, brought this action against S. J. Harrell to be decreed the owner and to be placed in possession of the property, alleging that Harrell illegally held possession.

Defendant excepted that ' the petition failed to state a cause of action, and further alleged that he had acquired the property on the 7th day of March, 1901, as per deed recorded on the same date in the conveyance records of Morehouse parish, Louisiana, and that he had been in possession of the property since that date to the date of the suit, May 21, 1925, and especially pleaded the prescription of ten years; and, further, defendant answered in effect, denying plaintiff’s allegations and alleging his ownership and again pleading the prescription of ten years.

T'he record does not show whether or not the exception and plea of prescription was referred to the merits, but it appears to have been tried and evidence introduced thereon without objection, and judgment was rendered sustaining the plea of prescription and rejecting plaintiff’s demands, from which he appeals.

OPINION

The evidence offered on the trial of the plea consisted of a notarial act of transfer by the Morehouse Lumber Company, represented by its president, of date and recorded as above, and evidence was also introduced which established that defendant took actual physical possession of the property immediately following the sale, and had continued in possession until the date of the trial.

There were also offered in evidence the following instruments:

(a) A copy of an instrument from the United States Land Office at Baton Rouge, Louisiana, which purports to be a sale of Land Warrant No. 4117 by the State of Louisiana to Henry M. Bry, of date January 9, 1858, authorizing the purchased, his heirs or assigns, to select three hundred and four acres of land donated by the United States to the State of Louisiana under Act of Congress of date December 20, 1848.
(b) A copy of an instrument from the United States Land Office at Baton Rouge, Louisiana, which purports to be an application for and location by W. H. Gayle under the above warrant No. 4117, of date December 26, 1860, in which the land in contest is described.
(c) A copy from the entry book from the United States Land Office at Baton Rouge, Louisiana, showing thei selection of the property in contest by the State of Louisiana under warrant No. 4117 of 'date February 6, 1861, and the approval of the government, of date March 23, 1908.
(d) A copy of a patent covering the land in contest issued to W. H. Gayle under a location under warrant No. 4117, of date August 31, 1920.

All of the instruments referred to were offered without objection and are apparently conceded to establish the transactions purported to be shown thereby, but the plaintiff contends that the plea of prescription should not have been sustained on the following grounds:

First: That the title acquired by defendant from the Morehouse Lumber Company was invalid in point of form and not sufficient for the basis of the prescription of ten years.
Second: That the title to the property was vested in the United States until March 23, 1908, the date of the approval by the government of the selection by the state, and in the State of Louisiana from that date until August 31, 1920, and that prescription did not begin to run until the latter date, and that ten years had not ipassed since that date.

I.

The instrument of date March 7, 1901, under which defendant acquired the property from Morehouse Lumber Company, was signed by the president of the company, who declared that he was specially authorized by a resolution of the board of directors as shown by a copy of the resolution, and attached to the instrument there appears a resolution of the board of directors, of date December 1, 1899, in which the president and secretary were authorized to sell the property of the company, and as the secretary did not sign the act of transfer with the president the plaintiff contends that the act of transfer was, on its face, insufficient in point of form to serve as the basis of the prescription.

In Bowers vs. Langston, 156 La. 188, 100 South. 301, where the former decisions of the court are referred to, the court, quoting from Greening vs. Natalie Oil Co., 152 La. 467, 93 South. 682, said:

“A sale of immovable property followed by tradition, by a person styling himself the attorney in fact of the owner but whose power of attorney is not produced, is only defective for want of evidence of his authority and not for a nullity of form resulting from his legal incapacity”; and
“Where one takes upon himself, as the attorney in fact of another, to sell, and delivers possession, his deed may form the basis of prescription, because the defect consists in the want of evidence of the mandate, and is not a nullity of form resulting from the legal incapacity of the vendor.”

And in Greening vs. Natalie Oil Co., 152 La. 467, 93 South. 682, supra, it was also said:

“A conveyance by one purporting to act under a written power of attorney will form the basis of prescription acquirendi causa under Civil Code, Article 3479, though the power of attorney did not embrace the property in dispute, and he had no written authority to convey such property.”

We are therefore of the opinion that the fact of a power of attorney, which shows that the president and secretary of a corporation are authorized to make a transfer, being attached to a deed signed by the president alone, is not such a defect as to render the transfer insufficient to serve as the basis of prescription of ten years.

II.

The evidence, as stated, shows that the defendant had possession of the property from the 7th day of March, 1901, to the date of the suit, May 21, 1925, and passing the question as to whether or not prescription could have run in favor of the possessor prior to March 23, 1906, when the selection by the state was approved, by the United States, to the question presented as to whether or not prescription ran subsequent to that date, it appears to be conceded that, insofar as the State of Louisiana was concerned, the equitable title at least was vested in W. H. Gayle as soon as the title of the state was confirmed, the state having sold the warrant under which the location was made, and we are of the opinion that the location made by Gayle was the equivalent of a certificate of purchase or final receipt and operated as a severance of the land from the public domain which became effective on the final approval of the title of the state, and that prescription ran in favor of the defendant possessor under the title translative of property acquired by him in good faith from the Morehouse Lumber Company. (Gay vs. Ellis, 33 La., Ann. 249; Jopling vs. Chachere, 107 La. 522, 32 South. 243; Trumbull vs. Sample, 158 La. 629, 104 South. 479.

The judgment appealed from is therefore affirmed.