author: ODOM, J.

text:
    No. 2242
    Second Circuit
    ROBERTS v. PHILLIPS
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1.Louisiana Digest — Appeal—Par. 520, 566.
    Where an exception is overruled in the lower court and the party filing the l exception does not appeal from tho court’s ruling, and the case is brought up to this court by the opposing party, the ruling of the District Court is not before this court for review.
    2. Louisiana Digest — Appeal—Par. 499, 500.
    Answers to an appeal and motions to amend the judgment may be filed in this court by the appellee within the first three days of the actual sittings of any regular session, provided they are tendered for filing previous to argument and submission of the case, but not afterwards.
    3. Louisiana Digest — Prescription — Par. 12, 22, 48.
    Ownership of immovables is prescribed for by thirty years’ possession without any need of title, but the possession on which this prescription is founded must be 'in the nature of physical detention, must be continuous and uninterrupted during all that time, public, unequivocal and under the title of owner.
    4. Louisiana Digest — Prescription — Par. 12, 22, 31.
    Where one sells a tract of land for adequate consideration by act translative of property, which is duly recorded and remains in possession of the property sold, he can not acquire the property by prescription as against his vendee, unless he does some act or in some way makes known to the vendee his intention to possess adversely to him.
    5. Louisiana Digest — Prescription — Par. 9, 29.
    Prescription ceases to run whenever the possessor makes acknowledgment of the right of the person against whom he interposes this plea.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. J. E. Reynolds, Judge.

      Action by Mrs. Olive G. Roberts against A. H. Phillips, Sheriff, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    L. K. Watkins, of Minden; Roberts & Roberts, Jr., of Shreveport, attorneys for plaintiff, appellant.
    Drew & Drew, of Minden, attorneys for defendant, appellee.
   ODOM, J.

John W. Smith died in the year 1921 leaving a last will and -testament, but "named no executor. On May 1, 1922, J. W. Baker, a son-in-law of the deceased, applied to the court to have the will admitted to proof and to probate and to be appointed dative executor thereof, which was done by order of the court on July 31, 1922.

Baker qualified by giving bond and taking the oath.

On February 24, 1923, upon the application of the executor, the court ordered all the property belonging to said succession sold by A. H. Phillips, sheriff, to pay debts.

Along with other property of the succession, the sheriff caused to be advertised for sale the southeast quarter of the northeast quarter of Section 30, Township 21 north, Range 10 west, and the southeast quarter of the southeast quarter of Section 13, Township 21 north, Range 11 west, containing eighty acres, situated in the parish of Webster.

On December 8, 1923, plaintiff brought the present suit, alleging that she is the owner of the above described property, and asked that an injunction issue restraining the sheriff from selling same, and that:

“J. W. Smith, executor, be duly cited to answer this petition, and that, after due service hereof, and after due proceedings had, she be declared to be the'owner of the said described property, and quieted in her possession of same.”

The sheriff was cited but made no answer. Issue was joined as to him by default. The executor tendered in limine an exception of res judicata, alleging as a basis therefor that a previous suit between the same parties, involving the same cause of action, had been previously dismissed by the court on exception of no cause and no right of action, that appeal from said judgment was waived, and that therefore said judgment was final.

This exception was tried by the court and overruled.

The executor then filed answer in which he denied that plaintiff owned the property in controversy, but, on the contrary, alleged that the property is owned by the succession of Smith of which he is executor, and asked that said succession be decreed the owner thereof, and that a certain deed, alleged upon as the basis of plaintiff’s title, be adjudged a mortgage and the indebtedness represented thereby be recognized as fully paid and accordingly that said instrument be ordered cancelled and erased from the records.

As against defendant’s reconventional demand to be decreed the owner of the property, plaintiff plead the prescriptions of one, three, five, ten and thirty years.

These pleas were by the court referred to the merits.

The lower court rejected plaintiff’s demand and adjudged defendant to be the owner of the property in controversy.

Plaintiff appealed.

ON THE PLEA OP RES JUDICATA

This plea was tried separately in the lower court and overruled.

Counsel for appellee, in oral argument and in brief, ask this court to reverse the ruling of the lower court on that point.

But the lower court’s ruling on that plea is not before us for review. The exception was overruled, but there was no appeal taken from the court’s ruling, nor did the appellee answer the appeal. The case was brought to this court upon appeal by the other party, which did not bring up for review the ruling of the lower court made in appellant’s favor.

Code of Practice, 888, 889.

Siragusa vs. Ill. Cent. R. R. Co., 152 La. 745, 94 South. 376, and authorities therein cited.

Appellee filed in this court an answer to the appeal asking that the judgment of the lower court be affirmed—

“but amended to the extent to sustain the plea of res judicata filed in the lower court."

This answer to the appeal and motion were filed in this court after the case was argued and submitted to the court and was, therefore, too late.

Act 103 of 1908, amending Article 890 of the Code of Practice, specifically provides :

“That in the Courts of Appeal for the several circuits of the state such answers shall be allowed filed before argument within the first three days of the actual sittings of any regular session of said Courts of Appeal.”

Appellee filed his motion to amend on the third day of the term, -which would have been in time if the case had not been argued and submitted the day before.

ON THE MERITS

Mrs. Roberts, plaintiff in the injunction suit, has a perfect record title to the land in dispute. She traces her titje back to the United States through an unbroken chain of transfers. She is a daughter of A. Goodwill who died in '1904 or 1905. In 1917 the heirs of Goodwill, by notarial act, partitioned the property owned by him at his death. This land was- set- apart in the act of partition to Mrs. Roberts. Goodwill, plaintiff’s ancestor, acquired the property, along with eighty ’ acres more from John W. Smith, whose heirs now claim it by deed under private signature duly proved on January 30, 1892. That deed was recorded in conveyance record, volume 6, page 564, of the records of Webster parish, on March 9, 1892, and reads as follows:

“Be it known that I, John W. Smith, of this residence, in consideration of one liundred and twenty-five dollars cash paid to me by A. Goodwill, also of this residence, have sold • and hereby bargain, sell, transfer and convey to him with full delivery and possession, two tracts of land in this parish with improvements thereon, to-wit: Southeast quarter of northeast quarter, Section thirty (30), Township twenty-one (21), Range ten (10), containing forty acres more or less, and the southeast quarter of the southeast quarter of Section thirteen (13), Township twenty-one (21), Range eleven (11), 'and southwest quarter of southwest quarter of Section eighteen (18), Township twenty-one (21), Range ten (10), and northwest quarter of northwest quarter of Section nineteen (19), Township twenty-one (21), Range ten (10), containing one hundred and twenty acres, more or less; title guaranteed and purchaser subrogated to all my rights against or derived from all my vendors.
“Done, read and signed at Minden in the above written parish and state, in presence of the subscribing witnesses this 30th day of January, 1892.
(Signed) “JOHN W. SMITH.
(Signed) “A. GOODWILL.
"Attested:
“I. N. WALKER.
“T. N. BRADON, JR.”

Then follows an affidavit by one of the witnesses, made before the clerk of court, that he saw the parties sign.

The land now in controversy is the forty acres in Section 13 and the forty acres in Section 30.

These two tracts are more than a mile and a half apart. The land in Sectiton 30 is in the “flatwoods” and so never was cultivated. The forty acres in Section 13 joins the other eighty acres conveyed by Smith to Goodwill in the said deed.

The three forties together being known as the “Smith Home Place.”

The 120-acre tract was all under one fence and was either cultivated or used for pasture. Smith had his residence, barns and other outhouses thereon.

Smith, with his family, was residing on the property on January 30, 1892, the date on which he sold to Goodwill, and had resided thereon for a number of years previous thereto. He continued to live there, possess and use the land until the date of his death, in 1921, or nearly thirty years after he sold to Goodwill, and his heirs continued in possession after his death, the possession by him and his heirs being for a continuous, unbroken period of more than thirty years subsequent to the date on which he sold to Goodwill.

As against the title of Mrs. Roberts and a sa basis of title in the succession of Smith, the executor pleads:

First, prescription of thirty years; and,

Second, that the land was sold by Smith to Goodwill with right of redemption, that Smith owed Goodwill a debt at the time of the sale, it being understood that upon payment of the debt Goodwill was to restore the land to Smith, and that in the fall of 1892, following the sale in January of that year, Smith delivered to Goodwill two bales of cotton and' $75.00 in cash in full payment of the debt, whereupon Goodwill executed a deed conveying back to Smith the eighty acres of land now in controversy, which deed, it is alleged, was left in the hands of Judge Drew, the attorney who.. prepared it, to be recorded, hut that said deed was never recorded and cannot now he found.

If Smith and his heirs acquired title to the property by prescription, the other defens'e, or the other basis of title, -need not he considered; and if, in fact, Goodwill sold the property hack to Smith, prescription need not be invoked as a basis of title.

The District Court admitted testimony on both points, and counsel for the respective sides, both in oral argument and in brief, have considered both points together, and we shall do likewise.

I

Under Civil Code, Article 3499:

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

And, under Article 3500:

“The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

The possession of Smith and his heirs was continuous and public for more than thirty years subsequent to his sale to Goodwill. Mrs. Baker, the daughter of Smith, and other witnesses, testified that it was always their understanding that Smith was the owner of the land and that he possessed as such. To all outward appearances he was the owner of the land. He cultivated one forty acres of it and cut firewood and sold timber from the other forty acres. Mrs. Baker, his daughter, who is thirty-five years old, and who lived with her father up until the date -of his death, testified that he always claimed the land as his own. But there is incontrovertible proof in the record that Smith did not possess the land through all those years unequivocally and as owner thereof. He sold his home place the 120 acres on which he resided, including the land in Section 13 now in controversy, as one tract to Goodwill in 1892. Twenty years later, in 1912, long after Goodwill’s death, Smith purchased back from the heirs of Goodwill eighty acres of the 120-acre home place. The sale by Goodwill’s heirs to him was by notarial act for an express consideration of $400.00, part cash and the balance represented by notes. The vendors were represented in the negotiations by Judge Robert Roberts, the husband of plaintiff.

He testified that Smith never at any time disputed Goodwill’s title or pretended that he had claims to any of the land, but, on the contrary, expressed a desire to purchase the other eighty acres (that now in controversy), but stated that he was not financially able to do so.

Judge Roberts testified also that at the time he told Smith that he might continue to use the other land if he would look after it and prevent trespassing upon other lands in that vicinity, owned by the Goodwill estate, which Smith agreed to do.

The purchase made by Smith of a part of the land which he had conveyed to Goodwill by deed in 1892 was a recognition of the Goodwill title under which he held not only the land which he purchased back but of the lands now in controversy as well, for it was all conveyed to Goodwill under the same deed.

Not only that, he expressed a desire to _ purchase the land which his executor and heirs now claim to own by prescription. By this purchase and by his statements to Judge Roberts he recognized Goodwill’s right and title to the land.

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

Civil Code, Article 3520.

Even if it be said that prescription began to run in favor of Smith back in 1892, it did not run for thirty years, for in 1912 he acknowledged and recognized Goodwill’s right and title.

It must be assumed, therefore, that Smith possessed the property under Goodwill as vendee and that his occupancy and use of the property for twenty years, from 1892 to 1912, was a matter of sufferance.

In order to acquire by prescription of thirty years, one must possess for himself as owner and not for another. The question whether he possesses for himself as owner is one of fact. In the absence of proof to the contrary everyone is presumed to possess for himself as owner.

Succession of Zebriska, 119 La. 1076, 44 South. 893.

But that presumption and the testimony of Mrs. Baker that her father possessed as owner are completely overthrown by the statements and conduct of Smith himself.

Aside from this, a vendor who remains in possession cannot acquire the property by prescription as against his vendee unless he does some act or in some way makes known to the vendee his intention to possess adversely to him.

Succession of Zebriska, supra.

Roe vs. Bundy, 45 Ann. 398, 12 South. 759.

There is no evidence in the record that Goodwill knew that Smith intended to possess adversely to him. Quite to the contrary; the evidence abundantly establishes that Smith possessed all the while under Goodwill and his heirs.

Defendant was permitted, over plaintiff’s objection, to introduce the testimony of Harper Smith, son of John W. Smith, the deceased, that in the fall of 1892, the year in which Smith sold the land to Goodwill, his father redeemed the land and Goodwill executed a deed to the eighty acres in dispute.

Casting aside all technical questions as to the admissibility of this evidence, we have considered it, such as it is. But we are not convinced, in view of other testimony, that Goodwill sold this land back to Smith and evidenced the sale by a deed.

Harper Smith’s testimony, in substance, is that his father needed funds in the early part of 1892; that he borrowed of Goodwill $125.00, and as security therefor deeded to him 160 acres of land; that the deed was intended as a mortgage; that his father was given the right to redeem the land; and that in the fall of the year his father did redeem the land by paying to Goodwill $75.00 in cash and by delivering to him two bales of cotton; whereupon, he says, his father had Judge Drew to draw a deed to the eighty acres of land in dispute; that the .deed was signed by Goodwill and his father and attested by him and Mr. Creichton; that the deed was turned over to Judge Drew to be recorded and has never been seen or heard of since.

He does not pretend to describe the act further than to say it was a deed to the eighty acres of land now in dispute. He says it was a redemption deed of the land which his father sold to Goodwill in the early part of the year.

The making of that deed, according to the testimony of Harper Smith, took place more than thirty years before the trial of this suit, and the witness Was twenty-two years old at that time. His recollection is somewhat hazy as to the details. He says the deed was drawn by Judge Drew in his office in Mi'nden and signed by the parties there, but he does hot recall what kind of an office Judge Drew had nor in what part of the town it was located, nor how it happened that Creichton, the other witness, happened to be there.

Mr. Goodwill, Mr. Smith, Judge Drew, and the witness, Creichton, are all dead. There is no witness to corroborate the statements of young Smith. We cannot accept his testimony as proof that a deed was made. We think the witness is mistaken. The witness may be honest in his belief that there was a redemption of the land evidenced by a deed, but in view of the circumstances and the subsequent conduct of the elder Smith, we do not believe there was.

In the first place, according to Harper Smith his father owed Goodwill only $125.00 at the time the original deed to the 160 acres was passed. Adding interest to that sum at the excessive rate of 20%, the elder Smith owed only $150.00 at the end of that year. Harper Smith says his father delivered two bales of cotton and paid $75.00 in cash to redeem the property. The proceeds of the cotton and the cash were sufficient to pay the entire debt, so that if the payments were intended to cover the original debt and to redeem the property it would seem reasonable to assume that the whole of the tract of 160 acres would have'been deeded back instead of only 80 acres, as young Smith says there was. His theory is that the whole debt-was paid, but he does not pretend to explain why all the 160 acres of land was not included in the deed. • ■ •

Then, too, it seems reasonable to assume that if the elder -Smith had been willing to accept a deed to only part of the land,' when the whole debt was paid, he would have wanted that part which was most valuable to him.

The evidence shows conclusively that the two forty acres of land which Harper Smith says were included in the deed were the least valuable to Smith. The forty acres in Section 13 was used principally for pasture or meadow and the other forty acres in Section 30 is nearly two miles away and in the “flatwoods” and was useful only for firewood. The timber was not valuable at that time. Smith’s residence was on the other eighty acres of land sold to Goodwill. If -he was permitted to redeem and take back any portion of the land, it is reasonable to suppose that he would have taken hack that part most useful to him; and yet young Smith says that only the least valuable portion of the land, or that now in controversy, was included in the redemption deed.

Again, if the elder Smith had redeemed this land in 1898, he, of all men, would most likely recall that fact. He did not recall it, for in 1912 he púrchased from the heirs of Goodwill .the eighty acres on which his residence was situated and which was most valuable to him, and at that time told Judge Roberts that he would purchase back -the other land but was not financially able to do so.

In all his talk with Judge Roberts about the land he said not a word- about having redeemed the land back in 1892 and made no claim to it, but agreed to look after other lands owned by the Goodwill estate ' as a consideration for- the use of the land now in dispute.

There is no question but that a great deal of the testimony found in the record was inadmissible under the pleadings and for the purposes for which it was offered. However, as stated, we have considered it in connection with the entire transaction.

We have considered the three scraps of paper offered in evidence to corroborate the testimony of young Smith. The three pieces, we think, constitute the whole of a mutilated document, although they seem to have been considered by counsel as forming two documents.

Taken as one instrument, it reads:

“John W. Smith — In Account with Goodwill, Minden, La.
“17 Dec. 1892, Sale 2 B/C.
“9587 500
“9588 5110 1010# 7% To Cr on cash on land $73.22.”

The part of the writing, “To Cr on cash on land $73.22”, seems to have been written by the same party who wrote the other, but it does not appear to have been written with the same pen at the same time. Just what the meaning of the document is we do not know. It may be that the proceeds of the sale of the cotton were intended to be credited on rent of the land for that year. That is the contention of Mrs.' Roberts, and she offered to introduce the books of Goodwill to show that but, on objection, the books were not admitted. Or it may be, as contended by defendant, that the amount was intended as a credit on the purchase price of the land. But the document is not sufficient corroboration of the testimony of young Smith to warrant us in holding, in the light of all the other facts and circumstances, that Goodwill deeded the land in dispute back to Smith.

As already stated, Mrs. Roberts, the plaintiff, has a perfect outstanding record title to the land, which cannot be overthrown by such testimony as is found in the record.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the. title of Mrs. Olive Goodwill Roberts, the plaintiff, to the southeast quarter of the northeast quarter of Section thirty, Township twenty-one north, Range ten west, and the 'southeast quarter of the southeast quarter of Section thirteen, Township twenty-one north, Range eleven west, be and the same is hereby recognized, and that A. H. Phillips, sheriff of Webster parish, be enjoined and prohibited from selling the same in these proceedings, as prayed for. Appellant to pay all costs.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. -
    First Circuit
    GOUDEAU v. GOUDEAU, ET AL.
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Donations—Par. 20, 27.
    A donation to two children of a divorced wife on condition that the wife abandon all claim to her paraphernal property is not null under Article 1497 of the Civil Code, but is an advantage for third persons provided by Article 1890 of the Civil Code.
    Appeal from the Parish of St. Landry. Hon. V. Robertson, judge ad hoc.
    Action by Theodule Goudeau against John E. Goudeau, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    M. H. Thompson, of Opelousas, attorney for plaintiff, appellant.
    A. V. Pavy, of Opelousas, attorney for defendant, appellee.
   MOUTON, J.

In 1870, Catherine Guillory and Theodule Goudeau, plaintiff herein, were married. In May, 1886, she was divorced from him. In the judgment decreeing the divorce she was reserved the right to sue him in a separate action to liquidate the community or to demand her paraphernal rights. She died about twelve years ago. On October 26, 1926; plaintiff and Catherine Guillory, from whom he had been divorced, executed a deed jointly in favor of Jean Eliar and Pierre Portalis Goudeau, two children who were born during their married life. In this deed or act plaintiff and his divorced wife declared that they donated unto 'their children aforesaid, in consideration of their love and affection for them, a tract of land in the parish of St. Landry containing one hundred arpents with buildings and improvements thereon. The act declares that the donation is made on the condition that plaintiff was to remain agent of the property during his lifetime, that one-half of its revenues were to be expended by plaintiff for the improvement, cultivation and payment of the taxes for the place, and the other were to go to said children. The act ends with the following stipulation:

“And it is a further consideration of this donation that Catherine Guillory renounces, which she accordingly does, by this act, any and all community and any other claims which she may have against Theodule Goudeau.”

Plaintiff brings this suit, alleging that, by the act, he divested himself of all his property in violation of the prohibitory provisions of Article 1497, Civil Code, and that the act, which he construes as a donation inter vivos, is therefore null. In the act, Catherine Guillory, it will be observed, appears as a joint donor with her then divorced husband. If she were then a joint owner in the property it is evident that the act could not be set aside at the instance of the plaintiff, alone. If plaintiff were the sole owner, as contended for by him, it becomes necessary to look into the evidence and the stipulations of the act to ascertain its true nature. The proof shows clearly that, at the time of her marriage to plaintiff, Catherine Guillory owned about twelve head of horses and some time thereafter inherited approximately twenty or twenty-five head of cattle. It is shown that these horses and cattle were delivered to plaintiff and were by him counter-branded. It is well established by the record that these animals were worth about $700.00. Plaintiff made a vairi effort to show that the cattle had drowned in the high-water of 1882 and 1884. The proof shows that, after Catherine Guillory had obtained her divorce, plaintiff refused to deliver these horses or cattle or any at all. The fact that' a reservation was made in the judgment 'of divorce reserving, to Catherine Guillory the right to enforce her community and separate rights against her husband, and the further fact that he had failed or refused to account for the animals he had received from her, explained the reason for the stipulation we find in the act to the effect that Catherine Guillory, in consideration of what is termed a donation, renounces all her community or any other claims which she might have against plaintiff.

The fact is that Cleophas Guillory, a child of Catherine Guillory by her first husband, says that his mother and plaintiff not being on speaking terms after their divorce, that at the reguest of plaintiff he acted as an intermediary for the purpose of effecting an adjustment of the differences which existed between them. He says, at the initiative of the plaintiff, it was agreed with his mother that each would give as community property 50 arpents of the 100 arpents that were given to Jean and Portalis Goudeau under the terms of the act in question. He testifies, further, that this’ settlement was effected on the condition, as was proposed by plaintiff, that his mother would abandon all her claims. This testimony makes it clear that before executing the act plaintiff exacted from his former wife an abandonment of all her paraphernal rights. It is evident that, in consideration of this renunciation on the part of his wife, plaintiff agreed to give to the two children of their marriage the one hundred arpents of land in question. This was clearly an advantage which plaintiff was conferring on these children in consideration of the abandonment which Catherine had made of her claim. The benefit thus conferred comes squarely under the provisions of Article 1890, Civil Code, which says:

“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

Article 1902, C. C., is to the same effect, and adds that such a contract can not be revoked without the consent of the beneficiary.

The act in its recitals is termed a donation. It was not a gratuitous donation made from mere liberality, as the wife, in consideration of the benefit conferred on Eliar and Portalis Goudeau, renounced all her rights against plaintiff. It was not an onerous donation, as no charges were imposed on the donees, nor was it a remunerative donation, as the object of the act was not in compensation of services rendered.’ Its purpose was to confer an advantage on the donees, which brings the act under the purview of the Articles C. C. above cited.

In his petition plaintiff alleges that defendants made a written demand upon him for the delivery of the property, of which, in their answer, they also ask to be decreed the owners. They have therefore signified their assent to accept the stipuation which was made in their favor under the terms of the contract which can not be revoked at the instance of the plaintiff whose suit was properly dismissed.


author: WEBB, J.

text:
    No, 2227
    Second Circuit
    ETCHISON v. RICHARDSON OIL CO.
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused'.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Petitory and Possessory Actions — Par. 36.
    In a petitory action, the plaintiff carries the burden of proof to establish the boundary lines.
    2. Louisiana Digest — Petitory and Possessory Actions — Par. 36, 38, 39; Surveyors and Surveys — Par. 24.
    Where the plaintiff in a petitory action fails to prove the boundary lines because the survey made was not in accord with the rules promulgated by the United States for restoring lost or obliterated corners and lines, there should be judgment dismissing the case as of non-suit.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Mrs. Mattie E. Etchison against Richardson Oil Company, Inc., et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed dismissing suit as of non-suit.
    Bullock & Warren, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, M. E. Etchison, is the owner, in indivisión with R. L. May-field, of a tract of land of ten acres lying in the south half of the northeast quarter of the northwest quarter of Section thirty-two, Township twenty-one north, Range fifteen west, of Caddo parish, Louisiana, and defendant, Richardson Oil Company, Inc., is the owner of a tract of land adjoining the same on the west.

The defendant has a mineral lease on the land owned by plaintiff, and plaintiff, contending that defendant has drilled an oil well on the property owned by her and R. L. Mayfield, seeks to. force the defendant to account to her for her proportionate amount of the royalties under the lease; and as an incident to the action she prayed for service on her co-owner as well as on defendant; but the record does not show that service was made on Mayfield nor does it appear that a default was ■ entered against him or that he answered; while defendant, Richardson Oil Company, Inc., answered denying plaintiff’s allegations and setting up that the well was not located on the property owned by plaintiff and R. L. Mayfield but on the adjoining property belonging to it and suggested that surveyors be appointed to assist the court in locating the well.

No order was filed for the appointment of surveyors, and on trial the parties relied solely on the testimony of the respective surveyors who had been employed by them to run the line between the properties; and plaintiff appeals from a judgment rejecting her demands.

OPINION

While it is apparent that the rights of the parties are dependent upon the correct location of the boundary line between the properties, and while all of the evidence offered related to the location of the boundary, the action does not appear to have been considered by the parties as an action of boundary, and neither took any exceptions to the judgment which did not fix the bounds or order a survey of the property, and we must assume that the action was considered by the parties as in the nature of a petitory action, in which the plaintiff carried the burden of proof to establish the correct location of the line between the properties (Russell vs. Producers Oil Co., 143 La. 217, 78 South. 473); and from this point of view the trial court must have concluded that plaintiff had failed to establish the correct line and therefore rejected her demands.

The properties are located in Section 32, Township 21 north, Range 15 west, and the line and point of departure to be preliminarily established is the line between the east half and the west half of the northwest quarter of said section, and the center of said northwest quarter, neither of which was established in the original surveys but must be fixed with reference to the boundaries and corners of the section.

The copy of the government map and the testimony of the surveyors show that the government survey of the southern tiers of that township was made by different surveyors, the first survey having been made in 1838 and the latter in 1871, and that in the latter survey some of the lines which had been run in the former survey were retraced, and the map or plan filed in evidence purports to show the survey of some of the sections as run by the surveyor in 1838 and of the others as run and retraced by the surveyor in 1871; and while the evidence does not show which of the lines was run and which was retraced by the surveyor in' 1871 it appears that the latter survey, or the survey of 1871, was made for the purpose of establishing the lines or bounds of Sections 31, 32, 33 and 34, and the corners established or re-established in that survey' were all of the lines and corners affecting said sections.

It further appears that the corners at the northwest and southwest of Section 31 were found by the surveyors, or they agree to the locations of those corners, but that all other corners affecting the lower tiers of Sections 31, 32, 33 and 34 have been obliterated, and that in locating the agreed point of departure the surveyors followed the following method;

The surveyors employed by defendant started at the southwest corner of Section thirty-one, a point which the parties agree and the evidence shows as properly located, thence they ran east one mile in accordance with the plat, thence one-quarter of a mile east, the course being the same as called for by the plat, and the distance being one-fourth of the length of the south line of Section thirty-two as. called for by the field notes, thence they ran north three-fourths of a mile (which line is supposed to have been parallel with the west line of Section thirty-two, the course being the same as called for by map for that line and the distance being three-fourths of the distance called for by the said west line of Section thirty-two) where they established their point of departure or the center of the northwest quarter of Section thirty-four, from whence they established the line between the properties and found that the well was twenty-three feet to the west of the line established and on the Richardson property.

The surveyor for plaintiff also began at the southwest corner of Section thirty-one; thence he ran east as the surveyors for plaintiff, one mile and a quarter, and then he went to the northwest corner of Section thirty, which corner is shown and admitted to be correctly located, and from thence he ran a line to the northwest corner of Section thirty-four and found there was a surplus of one hundred and forty-three feet, and he prorated that surplus to the north line of each of the Sections 31, 32, 33 and 34, and from the northwest corner of Section thirty-one he ran east the distance called for by the plat, plus the surplus, and fixed the point, or northeast corner of northwest quarter of northwest quarter of Section thirty-two, thence he ran a line to the point which had been established by him in measuring a mile and a quarter east from the southwest quarter of Section thirty-two, the surveyor fixed the center of the northwest quarter of Section thirty-two and thence ran the line between the properties and found that the well was located forty-three feet east of the line on the Etchison property.

None of the points used by the surveyors with the exception of the southwest and the northwest corners of Section thirty-one and the northeast corner o'f Section thirty-four, appear to have been established by the original surveys by the Government, and the parties have filed in evidence rules promulgated by the United States for restoring lost or obliterated corners and lines, but so far as we can determine neither of the surveyors followed such rules. (Houston Ice & Brewing Co. vs. Murray Oil Co., 149 La. 228, 88 South. 802.)

As previously stated, all of the original monuments at the corners and quarter section corners of Section thirty-two have been obliterated, and the nearest corners to the properties of the plaintiff and defendant would be the quarter section corners between the northwest and the southwest corners of Section thirty-two and between the northeast corner of Section thirty-two and the northwest corner of Section thirty-two, and in the rules for the resurvey of the lines in sections ori subdivisions of the sections it is stated:

“Preliminary to subdivision it is most essential to know. the actual boundaries of the section as it cannot be legally subdivided until the section corners and quarter section corners have either been found or restored by the preceding methods and the resulting courses and distances determined by survey. The practice of entering a section to survey a tract from only one qy two corners and those perhaps unreliable is unwarranted and may result in litigation. The order of procedure is: First, re-establish the obliterated boundary, next fix the lines of quarter sections, then form smaller tracts by equitable and proportionate measurements, etc.”

The surveyor appearing for defendant did not attempt to fix the boundaries of Section thirty-two, nor does it appear that he fixed any one of the corners in the section; and while it may be that one may be able to take his map in consideration with his testimony and determine the location of the northwest corner of Section thirty-two, that is, the distance which he would locate it from the northwest corner of Section thirty-one, we think the location would be in conflict with his map, and .while apparent error does not appear in the survey made by the surveyor appearing for plaintiff, it does not appear from his map and testimony that he established the boundaries of Section thirty-two, although it may be that an expert surveyor would be able to determine the location of the boundaries from his map and testimony; but it appears certain that he did not follow the rule, as stated above, in making his survey.

This is not a boundary suit but more in the nature of a petitory action, and the plaintiff carried the burden of proof to establish that the well was located upon her property (Russell vs. Producers Oil Co., 143 La. 217, 78 South. 473); and as we find that the evidence does not show the survey to have been made in accord with the rules admitted by the parties to be correct she cannot recover.

The question of fact upon which the rights of the parties is to be determined is the correct location of a boundary, and such being the case we are of the opinion that when the evidence in"'such cases is not sufficient to satisfy the court of the correct location of the boundary, or when the survey was not made in .accordance with the rules admitted to be correct, that the plaintiff’s demands should be dismissed as of non-suit rather than rejected.

It is therefore ordered that the judgment appealed from be amended and that plaintiff’s demands be rejected as of non-suit; all costs to be paid by plaintiff.


author: WESTERFIELD, J.

text:
    No. 9791
    Orleans
    HARRIS v. LASALLE FIRE INSURANCE COMPANY
    (-. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Corporations—Par. 6, .38.
    Subscribers to the capital stock of private corporations are bound by the provisions of law affecting the corporation.
    2. Louisiana Digest — Corporations— Par. 44, 46, 48; Insurance — Par. 8.
    When a subscriber to stock in an insurance corporation, in common with other subscribers, delays payment of his subscription beyond the time the law allows the corporation for the collection of its subscribed capital, thus contributing to the necessity of the corporation amending its charter by reducing its authorized capital to the amount paid in, in accordance with law, the subscriber can not complain of the inability of the corporation to make im-' mediate delivery of a stock certificate, nor justify his refusal to pay for his stock upon that ground.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by M. D. Harris against The-La Salle Fire Insurance Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    John R. Perez, of New Orleans, attorney for plaintiff, appellee.

      Anna Judge Veters, Joseph A. Breaux, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit to rescind a subscription to the capital stock of the defendant corporation and for return of the money paid on account thereof. Defendant reconvenes claiming the balance due on the subscription. From a judgment against it, defendant appeals.

Plaintiff subscribed to twenty-five shares of the capital stock of the Liberty National Fire Insurance Company of New Orleans, whose charter was subsequently, by proper proceedings, amended and the name changed to the La Salle Fire Insurance Company, defendant herein. He gave the corporation three notes of $625.00 each maturing at short intervals in settlement of his subscription. The first note was paid when due, but the second and third were not met promptly and an extension requested and declined. Finally plaintiff sent his check for $1250.00 to defendant. The check bore the following inscription on its face: “Balance due on $1875.00 worth of stock and payment in full of the two notes, $625.00 each, due 12/16/21.” Defendant, before attempting to cash the check, doubtless being influenced by the inscription on' the face of the check, wrote plaintiff that there was $32.71 also due as interest on the notes. Whereupon, plaintiff wrote defendant authorizing draft on him (he resided in Homer, La.) for the balance but stipulating that the stock certificate for the twenty-five shares be attached to the draft. Defendant replied that it could not deliver a permanent certificate because it had been forced to reduce its capital stock due to the failure of plaintiff and a number of others to pay promptly their subscriptions to stock, but that an ad interim certificate would be issued and a permanent certificate given later when a sufficient amount of money was realized from delinquent subscribers to warrant an increase of the capital stock. It appears that the original amount of the capital stock was fixed at $750,000.00, but that at the expiration of one year only $568,590.00 had been paid in. It was therefore necessary that the capital of the company be reduced to the amount paid in, which was done. See Act 203 of 1908, Section 2.

Plaintiff was fully advised of the situation some time before the capital was reduced and before the date of maturity of his notes, as appears by the following correspondence :

“Nov. 21, 1921.
“The La Salle Fire Ins. Co.,
“New Orleans, La.
“Dear Sirs:
“I have your notices that I am due 2 notes Dec. 16. I would like to have a one-year extension on same if possible as cash money is scarce at present and I am sure the company has to have interest bearing paper too. Please advise me if I. may be allowed this extension.
“Yours very truly,
(Signed) “M. D. HARRIS.”
To this letter defendant replied:
“Dec. 2, 1921.
“Mr. M. D. Harris,
“Homer, La.
“Dear Sir:
“Replying to your letter of the ‘ 21st ultimo, concerning your two notes for $625.00 each, representing balance due on your subscription for twenty-five shares of our stock, which will be due Dec. 16th, we note what you say and beg to advise that under the terms of our charter, regulated by law, we have only until next February in which to make collection of balances due on our subscribed capital or be forced by resolution of stockholders to reduce capital by amendment to charter. * * * Over $500,000.00 of our subscribed and authorized capital of $750,000.00 has already been paid in. * *
“Yours very truly, etc.”

Plaintiff, nevertheless, sent his check to defendant on June 7, 1922, for the principal of his notes, and it was only when defendant insisted upon collecting the interest on the notes that the demand for immediate delivery of stock was made.

So far as this suit is concerned plaintiff by his subscription to stock in the defendant corporation was just as much a stockholder as though he possessed a certificate of (stock.

“Since a certificate of stock is not the stock itáelf, but merely evidence of the ownership thereof, and is not necessary to make one a stockholder, with all the rights and subject to all the liabilities of a stockholder, the general rule is that the issue or tender of a certificate is not a condition precedent to the liability of a subscriber to stock on his subscription.”

Corpus Juris, Yol. 14, p. 550.

See also Fletcher on Corporations, Vol. 2, p. 1297, where the following occurs:

“A certificate is merely evidence of the holder’s ownership of stock and is not at all necessary to make one a stockholder. It is well settled that the issue or tender of a certificate of stock is not a condition precedent to the right of a corporation to levy assessments or maintain an action on subscription for stock.”

The sole complaint of plaintiff is his inability to obtain immediate possession of a permanent stock certificate. This deprivation, it is contended, is sufficient cause to rescind the agreement of plaintiff to buy the stock of the defendant company. We are referred to the following authorities:

“Subscriptions for stock which the corporation has no power to issue at all, as in the case of a contract calling for an issue of stock in excess of the authorized capital stock, are void both on the grounds of illegality and of want of consideration. Even though the president and directors may have power to authorize an additional issue, yet, until they exercise this power, any issue after the original limit has been filled will be void, and a subscription therefor unenforceable.” Citing McCord vs. Ohio, etc., Railroad Co., 13 Indiana 220. C. J., Vol. 14, p. 530.
“A subscription to the capital stock of a corporation which it has no capacity to issue is a nudum pactum and hence not enforceable.” Marion Trust Co. vs. Bennett, 82 N. E. 782.

“A subscriber for an increase of stock is not liable on his subscription unless the amended articles providing for the increase have been filed.” Reid vs. Detroit Ideal Paint Co., 94 N. W. 3.

“A subscriber may be discharged by refusal or failure of the corporation to issue or tender to him a certificate of stock.” In re Beaunisne, 182 Ill. A. 238.

All these decisions relate to the subscription for stock which the corporation had no power to issue at the time of the subscription to stock sold in excess of legally authorized amount, or to increased issues which have not met the legal requirements. In the instant case the only reason there is no certificate available for immediate delivery to plaintiff is due to his fault in conjunction with the fault of other subscribers 'who, like plaintiff, failed to pay their subscriptions in time to avoid the necessity of reducing the capital stock in conformity with law. Plaintiff was warned that this action by the defendant would be necessary and urged to pay up in order to help to get the capital stock fully subscribed. If plaintiff had paid promptly he would have- had his certificate delivered to him at once, just as others who paid their subscription received theirs. He was, of course, bound by any provision of law, which affected the corporation for whose stock he had subscribed, and can not complain of the effect of the application of the law to the affairs of the corporation. It does not appear whether the defendant corporation has prospered or not, nor is it material. However, if a subscriber may, by his failure to pay promptly, contribute to a situation ' requiring a reduction in the authorized capital of corporation to the amount paid in and then demand immediate delivery of his stock certificate as a condition of the payment of his subscription (a condition he knows can not be met) a very convenient method of repudiation of stock subscriptions would result. Assuming the corporate stock to have depreciated in value, subscribers who paid promptly would be penalized for having discharged their obligations.

We conclude that the case is with defendant and therefore the judgment appealed from is reversed, and it is now ordered that there be judgment dismissing plaintiff’s demand.

It is further ordered that there be judgment against plaintiff, M. D. Harris, and in favor of defendant on its reconventional demand in the sum of $1250.00 with 6% interest from' December 16, 1920, until paid, with 10% attorney’s fees and all 'costs.


author: JONES, J.

text:
    No. 9718
    Orleans
    ZION v. HIBERNIA BANK & TRUST CO.
    (May 23, 1927. Opinion and Decree.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Obligations — Par. 182; Banks and Banking — Par. 47, 56.
    Where a bank contracted to cable one hundred and ten dollars to Russia on April 1, 1917, and failed to deliver the money to payee, to sustain its defense, when sued for return of the money, it must prove that it employed reasonably expeditious means to carry out the contract.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Sam Zion against Hibernia Bank & Trust Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Sol Weiss, of New Orleans, attorney for plaintiff, appellee.
    McCloskey & Benedict, of New Orleans, attorneys for defendant, appellant.
   I respectfully dissent. C. C. 3008.

(Signed) CHAS. P. CLAIBORNE,

Judge.

JONES, J.

This is a suit for one hundred and ten ($110.00) dollars, which plaintiff turned over to defendant on April 11, 1917, to be cabled to Jenia Aronow in Russia.

Plaintiff alleges that defendant failed either to transmit the money or to return it to petitioner. and is therefore indebted to him for said amount.

Defendant admits receipt of the money, but denies all indebtedness. Further answering, respondent averred that on the date mentioned, in consideration of one hundred and ten ($110.00) dollars deposited with it, it agreed to "transmit by cable to Jenia Aronow in Russia the said one hundred and ten ($110.00) dollars, payment to be made in rubles after deducting all charges”, that “in accordance therewith and acting through its agents respondent transmitted said sum to its agent in Petrograd, the National City Bank of New York at the then rate of exchange, which amounted after deducting charges of transmission to three hundred and forty-nine (349) rubles, sixty-five (65) kopecks; that Jenia Aronow could not be located and meanwhile rubles declined; that it informed plaintiff in April or May, 1918, that it' could not locate payee and was therefore unable to make payment”; that plaintiff then demanded his money, and defendant wrote its agent, the National City Bank, to cancel order of payment and credit respondent with said amount; but meanwhile the rubles had so fallen in value that they brought, when sold, only forty-three and 71-100 ($43.71) dollars, which amount was tendered to plaintiff and refused; that respondent faithfully performed its contract and plaintiff’s loss is due to fall of rubles; that defendant has always been and is still ready to pay plaintiff forty-three and 71-100 ($43.71) dollars, but plaintiff should pay costs of this suit.

There was judgment for plaintiff and defendant has appealed.

Although the answer shows that defendant recognized the National City Bank as its agent throughout the transaction, defendant says in his brief: “Plaintiff’s cause for complaint, if any, is against the National City Bank of New York and not against the defendant.”

It is true that plaintiff testified that Mr. Villere, vice-president of the bank, had told him that the Hibernia Bank had no agent in Russia and that it would forward his money to the National City Bank of New York.

Mr. Villere testified on direct examination that he impressed upon plaintiff that the National City Bank was handling the transaction for his account, but on cross-examination he testified that the National City Bank, in this transaction, acted as the agent of the Hibernia Bank.

The record contains four letters offered' by defendant from New York bank to defendant, but in the letters plaintiff’s name is never mentioned, but, on the contrary, offer is twice made to cancel payment, provided defendant will give written guarantee to hold New York bank harmless against loss. .No copies of defendant’s letters to the New York bank were offered in evidence.

The only documents in the record offered by plaintiff bearing on this matter are the receipt and a letter from defendant to plaintiff of date April 28, 1919.

The receipt reads as follows:
“New Orleans, April 11, 1917.
“Received from Sam Zion, 1941 N. Rampart Street, one hundred ten ($110.00) dollars to be cabled to Jenia Pinchusova Aronow at Beresau, Poltawsky (hyb) Kievo Poltarsky R. R. Russia after deducting all charges through Nat. City Bk., N. Y.
“HIBERNIA BANK & TRUST CO.,
(Signed) “PAUL YILLERE,
“Asst. Cashier.”

In the letter of April 28, 1919, Mr. Villere quotes from the National City Bank’s letter to him of April 28, 1919, in part as follows:

"In view of the great difference in the rate, at which this transfer was sold you, and the rate at which we can now refund the same, we thought it well to write you regarding the matter.”

Both of these documents confirm the position taken by defendant in its answer, namely, that the New York bank was acting as the agent of defendant, for defendant says that the money is to be cabled by it to Russia through the New York bank and the New York bank says that the rubles were sold for defendant not for Zion.

Furthermore the letter of plaintiff to defendant of August 2, 1918, a copy of which is in the record, shows that plaintiff relied on the defendant throughout, a trust that was natural under the circumstances as he had long been their depositor. Although he knew the money was to be sent through the New York bank, he never thought and under the circumstances had no legal reason to think that he was employing the New York bank as his agent.

After a thorough and careful study of the entire record we are of the opinion that the New York bank was the recognized agent of defendant, not of plaintiff, and that defendant is responsible to plaintiff for any loss caused by its agent.

This view is strengthened by the fact that in the case of Martin vs. Hibernia Bank & Trust Co., 127 La. 301, 53 South. 572, the Supreme Court held -there was no privity of contract between the depositor and the sub-agent bank.

Defendant’s main argument is that this transaction, which amounted to a special deposit, created the relation of bailor and bailee (not that of creditor and debtor) and limited his responsibility to that required of the usual bailee, namely, ordinary care and prudence.

In support of this argument he cites Cutler Hall & Co. vs. Exchange National Bank, 113 N. Y. 593, and Ruling Case Law, Vol. 3, p. 522, par. 150.

This last citation states that money deposited for cable to a foreign country is a special deposit and may not be mingled with the general funds of the bank, as the depositor is entitled to receive back the identical money deposited, the right of property remaining in the depositor.

In Cutler Hall & Co. vs. Exchange Bank, 113 N. Y. 593, plaintiff in New York City wishing to make a payment in Leadville, Colorado, and the defendant having refused to give a draft directly on a Leadville Bank, gave plaintiff the following letter:

“New York, July 20, 1888. “Bank of Leadville,
“Leadville, Col.
“Yojir account is credited this day $500, received from Cutler Hall & Co. for use of J. Seymour Hall. — E. Burns, Cashier.”

When J. S. Hall attempted to use the letter, the Bank of Leadville had failed, and later plaintiff sued for return of his five hundred ($500.00) dollars.

The New York Court of Appeals in deciding the case uses the following language:

“Prom that moment, the defendant became the depositary of a fund which was by its own agreement devoted to one particular purpose and to no other. If that purpose failed or became incapable of being affectuated or was recalled by plaintiffs, the absolute right to the moneys was in them and in no one else. The defendant’s undertaking was to effect the payment of the sum deposited by plaintiff to Hall and at no time did the money become mingled in the general funds of the defendant or cease to be under the dominion for the purpose of its assumed agency. Its so-called letter of advice was equivalent to its certificate to its western correspondent of the deposit of a sum of money by the plaintiffs for the use of the person mentioned there. * * * When that payment was' refused and the letter of advice was returned to plaintiffs, the defendant became ' at once liable to repay the money to plaintiffs. * * * No contractual relation existed between the plaintiffs and the foreign bank.”

This decision, although holding that the fund was a special deposit, with which we fully agree, supports plaintiff on all other points.

Plaintiff, whose testimony shows him of but limited education, says that he called at the bank some two. or three months after he left the money, to ask an explanation, as he had received a letter from his Russian relatives at the.address given saying nothing had been received; that he was told Mr. Villere was in France and no one knew about it; that about fifteen days after his return Mr. Villere showed him papers which he did not understand, and later he refused to accept forty-three ($43.00) dollars in full settlement; that his relatives resided all the time at the given address; that rubles were not mentioned by either party at the time receipt was given, but he had put in pencil three hundred and forty-nine (349) rubles, sixty-five (65) kopecks, on the receipt on his second visit to the bank when he was told the amount, and had later erased it.

The latter statements are confirmed in part by evidence on the receipt of a pencil erasure and by a pencil letter in the record from Berezan, October 30, 1917 (English date November 14, 1917), stating money hadn’t come. The bank’s copy of the receipt was not offered in evidence, though referred to as showing amount of rubles.

Mr. Villere says he left for France about September 1, 1917, having told plaintiff prior thereto why matter was delayed. He also says that he tried to dissuade plaintiff, on account of difficulty of sending money in war time, but plaintiff insisted. He further explained that it was possible, but not practical, to send dollars at that time, and that he had stated to plaintiff that his bank would have to send rubles through the New York bank.

The copies of the letters from defendant to New York bank, though referred to in evidence, were not offered or filed, and the four letters from the New York bank to defendant show the following:

The first, ■ dated March 16, 1918, says Petrograd Branch had written there was no postoffice at Beresau, through which transfer could be made, but it had written to payee for instructions and would give further information in a short time.

The second, dated May 4, 1918, says it had no further news, but “if you so desire, we can write Petrograd askihg them to cancel the payment and on receipt of their reply we will re-credit you, or if you will give us a written guarantee to hold us harmless against any loss which we might sustain should this payment be effected before advice of cancellation is received by our branch, we will re-credit you immediately”.

The third; dated November 23, 1918, says Petrograd Branch had closed temporarily, without giving further information, and repeats above offer to cancel with proper guarantee.

The fourth, dated April 18, 1919, says they are now in position to buy back the transfer at twelve and one-half (12%c) cents, original conversion having been made at twenty-nine (29c) cents, and ask further instructions.

It is thus seen that the evidence fails to sustain the allegations. of the answer to the effect that the payee had changed its address and that defendant had upon request of plaintiff in April or May, 1918, instructed the New York bank to cancel order.

Although we are fully cognizant of the great difficulty of transmitting money to Russia at that time on account of the war and should hesitate to hold the bank responsible, if it had proved the allegations of its answer, there appears there is no alternative. On this point see:

Vincinzo vs. Richwood Bank & Trust Co., (W. Va.), 117 S. E. 822;

Sapain vs. Irving National Bank, 196 N. Y. Sup. 141;

Chemical National Bank vs. Equitable Trust Co., 194 N. Y. Sup. 177.

For above reasons the judgment is affirmed.


text:
    No. 10,905
    Orleans
    SCIORLINO v. RIECKE
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    Where only matters of fact are involved, the judgment of the lower court will be affirmed, unless plainly erroneous.
    Appeal from ---— • — —•
    Action by Joseph Sciorlino against L. G. Riecke.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. H. Wagner, of New Orleans, attorney for plaintiff, appellee.
    Walmsley, Beard & O’Keefe; A. L. Christovich, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for one hundred and sixty-seven and 25-100 ($167.25) dollars, damages to a Dodge Sedan, alleged to have been caused to plaintiff’s car by defendant’s Ford on May 27, 1926, at the intersection of De Soto and N. Dupre streets, about 7:30 P. M.

Plaintiff alleges that he was driving slowly out De Soto street with his family, and when he reached N. Dupre saw the Ford car standing still on the down-town side of De Soto; that he then proceeded forward and, when about two-thirds across, was struck broadside by defendant’s car; that it was the duty of defendant to wait after he had commenced to cross the street; that the two right doors, the right running hoard and the right step plates on his car had been ruined and the body of his car twisted, and repairs would cost the amount claimed.

The defendant admits the collision, but denies negligence and avers the damage was caused by petitioner’s want of care.

There was judgment for plaintiff for seventy-two and 30-100 ($72.30) dollars.

Defendant has appealed and plaintiff has answered the appeal, asking for an increase of the judgment to the full amount claimed.

The testimony of plaintiff, his wife, his married daughter and his son-in-law tends to support the allegations of the petition, but they vary on one important point.

Plaintiff swears that he blew his horn and stopped his car when . he reached N. Dupre street; that he shifted to second and went across, and as he was about to shift to high he saw the Ford coming, swerved to the left and hit the curb on De Soto street; that both streets are paved and of same width; that he knew that defendant’s car had the right of way. When asked if he had given defendant opportunity to start, he answered: “We were both stopped, I did not see her come across and I went ahead”; that the left rear wheel of the Ford struck the right side of his car, when he was three-fourths of the way across, the cars locked and stopped right there; that he had an estimate of cost of new doors, new running board and new plates and straightening his car, but had made no repairs.

Mrs. Sciorlino said her husband blew his horn and slowed down to one-half his speed, but did not stop; that she saw the car of defendant standing at N. Dupre street.

Mrs. Denbin, the daughter, testifies her father slowed up and blew his horn, but did not stop, and that she did not see the Ford until the accident happened; that Dupre street was about thirty feet wide, and that her father’s radiator had passed the property line of Dupre street when the accident happened.

The son-in-law' states that plaintiff’s car was in second speed going about eight miles an hour over intersection,' and that the front wheels of the Dodge were beyond the Dupre line at time of accident.

It is thus seen that plaintiff testifies that he came to a stop before crossing, his wife and daughter say he did not, and his son-in-law says nothing about it.

Walter Pilie, an expert mechanic, says that plaintiff’s car could have been fully repaired with two doors, “just like new”, for seventy-two and 30-100 ($72.30) dollars.

Defendant’s wife, who was driving the Dodge, says she stopped at Dupre street to let a man, and two children pass, sounded her horn and started her car across, and while in the center of the street saw a Dodge Sedan come from Esplanade into De Soto, turned her caito the left and her left front wheel was caught in his running board and she was dragged ten feet and her wheel was broken; that she looked to the left, where you can see for one-fourth of a block, but did not see plaintiff’s car until it was right on her; that she was in low gear at the time; the accident happened about center of intersection; the plaintiff, who was not coming very fast, about eight miles per hour, did not stop his car; that her left front wheel and left front fender were broken.

The mother of defendant’s wife, who was in the car with her at the time, confirms her daughter on all points, except that she says her daughter turned to the right and the left rear wheel of defendant’s car caught on plaintiff’s right front fender in the middle of the intersection and their car was dragged about twelve feet and both cars were pointing the same way.

We do ,not see how it is possible for the accident to have happened if defendant’s wife turned her car to the left, as she says she did, and we. think her mother’s version more probable, nor do we see how plaintiff’s car one-quarter of a block away could have come that distance at the slow speed of eight miles an hour, while defendant’s car was going half-way across Dupre street, about fifteen feet.

Although the evidence as to the facts is conflicting, we can not say that the decision of the lower court is plainly erroneous, and, as the city traffic ordinance was not introduced in evidence, we cannot consider which car had the right of way.

As defendant’s expert testimony on the amount necessary to put the plaintiff’s car in good repair is not contradicted, there is no basis for an increase of the judgment.

For above reasons the judgment is affirmed.


text:
    No. 10,927
    Orleans
    MOSELY v. CONTINENTAL CASUALTY COMPANY
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    When only matters of fact are involved the judgment of the lower court will be affirmed, unless clearly erroneous.
    Appeal from First City Court, Section “A”. Hon. W. A. Bahns, Judge.
    Action by George A. Mosely against Continental Casualty Company.
    Therfe was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Norman, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This suit is for $110.00, composed of $55.00, alleged to be due under an accident and health, policy for one month’s disability from illness, plus the. one-hundred-per-cent penalty, provided by Act 310 of 1910 for defendant’s unwar-, ranted refusal to pay the claim.

The trial court declined to impose the penalty but rendered judgment for $55.00, from which defendant alone has appealed.

The only issue presented is whether plaintiff’s . disability was occasioned by bronchitis, as he alleges in his petition, or by prostatitis, which is excluded from the policy by Part VI (p. 2), reading in its pertinent part, as follows:

“This- policy does not cover any loss caused by or resulting from * * * (3) venereal diseases; or (4) diseases not common to both sexes.”

Only matters of fact are involved and it would serve no useful purpose to make a detailed analysis of the evidence. It suffices to say that a careful study of the entire record, which does not contain the report of defendant’s physician, although it was offered in evidence, fails to show error in the judgment below.

The judgment is therefore affirmed.


text:
    No. 10,914
    Orleans
    BENDISH v. CHICAGO DEMOLISHING COMPANY
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625. Where only matters of fact are involved, the judgment of the lower court will be affirmed unless clearly erroneous.
    Appeal from, the Eirst City Court, Section “B”. Hon.. Val J. Stentz, Judge. .
    Action by Mark Bendish against Chicago Demolishing Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Chas. A. Danna, of New Orleans, attorney for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit on a written contract, dated July 20, 1926, to recover the sum of two hundred and 00-100 ($200.00) dollars, purchase price of two buildings sold by the plaintiff to the defendant company, to be demolished by the said defendant company. The defense ad: mits the execution of this contract' and pleads, as an offset to the debt, a bill of one hundred and six and 40-100 ($106.40) dollars for material taken from the said buildings, by the plaintiff under the terms of the contract, and a further offset of eighty and 00-100 ($80.00) dollars for certain sales purchased by the plaintiff, and not paid for. Since this case was tried in the lower court, the slates have been sold and that item has been dropped.

The trip.1 judge gave judgment for plaintiff for the full amount, with reservation of defendant’s rights, and defendant has appealed.

The evidence shows that there were two buildings to be demolished, the front of wood and the rear of brick. Under the contract, the plaintiff or seller was entitled to retain from the rear building all serviceable framing lumber at eighteen and 00-100 ($18.00) dollars per thousand, and all the serviceable framing lumber in the front 'building was to be left stacked on the premises and three thousand cleaned bricks as property of plaintiff (free of charge). In the itemized bill plaintiff is charged with 100 pieces of 3x10x18 and with ten pieces of 3x8, 300 feet of weatherboarding, 2800 bricks and $10.20 for certain water pipes.

The plaintiff and his foreman both swear positively that no lumber was ever used from the rear building and none was ever ordered. This foreman also says that the defendant had two trucks hauling away lumber, bricks and slates and that he had one wagon hauling trash out of the yard; that he began to cut some of the lumber for the new building, which he erected on the site after the other buildings .were removed, from the front building as it was being taken down.

Bowden, a carpenter for plaintiff on the job, says he saw some laborers hauling away trash for plaintiff and the trucks hauling away material for defendant, but did not see what it was.

Hibered, who lives across the street and visited the work twice every day for his father-in-law, the owner of the lots, saw the defendant’s trucks hauling away bricks, lumber and slate from the reart building and a colored laborer hauling trash.

Clay Thibodaux, a carpenter, who came on the job when it was nearly completed, saw the old colored man hauling trash.

It was admitted by counsel that the old colored man, who was in court, would swear that he hauled away nothing but trash.

The president of the defendant company says that he found considerable material cut when he first went on the job and called plaintiff’s foreman’s attention to it; that plaintiff’s workmen had started to demolish the front building, but weren’t qualified to do it and then, when he had practically finished the rear building, plaintiff had requested him to take the front building down.

It will be noted here that the contract reads in part as follows:

“We will pay the sum of $200.00 for the double one-story attic building and the two-story brick building in the rear on the premises known by municipal number 1423-25 Burgundy street. We are to start work at once and clear away all surplus debris derived from the demolition.”

Apparently the work of "demolishing both buildings was to be done by defendant and the statement of defendant’s president does not accord with the contract.

This witness then identified a pencil memorandum of the lumber, which had been made by him and plaintiff together and stated that plaintiff told him he had used three hundred feet of weatherboarding and twenty-eight hundred bricks from rear building and had fixed the price of the water pipe removed by him at ten and 20-100 ($10.20) dollars; that he knew lumber was cut up, but did not know whether it went' in new building. When asked by the court if he gave Mr. Bendish a copy of his statement at the time it was made, he answered "No, we usually make dray receipts, and the reason he did not get it is we did not have his address; he was not much on the job; otherwise he would have received it on the job”.

This is a poor reason. If plaintiff’s address was unknown and he was rarely on this job, it was all the more necessary to have him sign the receipt then and there.

He further states that plaintiff had taken three thousand bricks, before he took the twenty-eight hundred which are involved here, and that he left all the serviceable framing lumber on the premises at plaintiff’s request; that the rear building had been demolished and the front building was being demolished when cheek was made with plaintiff.

Defendant’s foreman says he saw his president with plaintiff, but noticed no checking. Later he says he did see checking; that he saw plaintiff using lumber from both buildings, but he took front building first, getting the 2x6 from the front and “they used all the joists in the back building”.

Toca, a witness for defendant, says he saw plaintiff’s carpenters sawing lumber, but when asked where it came from answered: “I could not say, we were demolishing the front part”.

Defendant’s able attorney attempts to show from the dimensions and size of the new building that the floor joists for theirs must have been taken from the rear building, because a large number of • such joists were used. This argument, while inore or less persuasive, is not convincing, because plaintiff and his foreman both' swear that they bought eleven hundred and 00-100 ($1100.00) dollars worth of lumber from Hortman for the new building and some new floor joists were used.

Defendant’s president, when placed on the stand a second time, says they worked on both buildings at the same time and that he did not know whether the 3x8x10, used for floor joists, came out of the front or back.

This analysis shows that defendant has failed to make his claim certain, and for that reason the judgment is affirmed.


author: WESTER-FIELD, X

text:
    No. 10,917
    Orleans
    WEISS v. ZILBERMAN
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription — Par. 173, 175, 178.
    A verbal promise to pay a debt, made before prescription had run, is sufficient to interrupt prescription.
    Appeal from First City Court for the Parish of Orleans.
    Action by Sol Weiss against Lucien Zilberman.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. L. Barnett, of New Orleans, attorney for plaintiff,' appellee.
    Bertrand Cahn, of New Orleans, attorney for defendant, appellant.
   WESTER-FIELD, X

This. is. a suit by a. lawyer'for a fee. fTIm amount claimed is $200.00. It is admitted that the services were rendered by plaintiff and that they were worth $200.00. The sole defense is a plea of prescription.

For the most part the services for which this fee is claimed were concluded in 1922, and as this suit was not brought until February 24, 1926, unless prescription is shown to have been interrupted, the greater part of plaintiff’s claim would be barred. Fortunately, however, for plaintiff, he was able to prove, at least to our satisfaction, that prescription was interrupted.

Plaintiff testifies that statements were rendered defendant at regular intervals, beginning shortly after the debt was incurred, and that defendant agreed verbally a number of times before prescription had run to pay the bill. Defendant denies promising to pay but admits getting the statements. A verbal promise to pay made before prescription had run is sufficient to interrupt prescription. Utz vs. Utz, 34 La. Ann. 752. We are convinced that plaintiff is correct in his statement concerning defendant’s promises to pay. In addition to our confidence in the veracity of plaintiff, who is a lawyer of excellent standing at the bar, the natural thing for a client, who knows he owes his • lawyer a fee, which he can not,' or will not, pay, is to make promises.

We see no reason to disturb the judgment appealed from, therefore it is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,888
    Orleans
    PALMETTO FIRE INSURANCE CO., Appellant, v. CLARKE GARAGE CO.
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6.
    A garage keeper is not an insurer of the automobiles left in his charge, but he is bound to use the same diligence in their care that he uses in preserving his own property.
    2. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6; Negligence — Par. 15.
    When the employee of a garage keeper, . in filling the oil tank of plaintiff, spills upon the floor a small quantity of oil which is ignited by a lighted match thrown upon it "by a customer, and the fire burns plaintiff’s automobile, the garage keeper will not be liable, as the oil spilled upon the floor was only the remote cause of the danger, while the lighted match was the proximate cause.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by Palmetto Fire Insurance Company against Clarke Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. M. Irwin, of New Orleans, attorney for plaintiff, appellee.

      Thos. J. Dobbins, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for the burning of an automobile.

The plaintiff alleged that it insured a certain automobile, the property of one Watson; that Watson delivered said car to defendant’s garage on storage with instructions to fill the gas tank; that in filling said tank defendant’s employees caused the gasoline to overflow and run upon the floor of the garage near and around the automobile; that some customer of the garage threw a lighted match upon the floor and thus ignited the gasoline causing the burning and damage of Watson’s car to the extent of $141.70; that the burning of the automobile was caused solely by the negligence of the defendant in failing to take proper precautions in the filling of the gasoline tank and in allowing smoking upon the premises; that plaintiff had insured said automobile against fire and upon paying the loss had been subrogated to all the rights of the assured Watson against the defendant company. The plaintiff therefore claimed of the defendant $141.70.

The defendant averred that a party wholly disconnected with defendant’s business, whose name, on information and belief, was Frank J. Mangham, of No. 4900 St. Charles Avenue, did light a match and threw it upon the floor of the building on a spot adjacent to the gasoline filling tank to the Watson car; that no gasoline spilled adjacent to the automobile could have caught fire without the act„ of the third person in lighting the match, which was the proximate cause of the fire.

There was judgment in favor of defendant dismissing plaintiff’s suit.

The plaintiff has appealed.

The defendant has established the allegation of its answer.

George S. Clarke, president of the defendant company, testified that the Watson car was standing in the driveway; the tank had overflowed and perhaps a pint or more was spilled upon the floor and a customer who was standing over near the car, waiting for his car to be brought down, lit a cigarette and threw the match down in a puddle of gas, while it was not out, and that caught the backend of the car and set it on fire; he got a fire extinguisher and put it out; there are two signs in the building prohibiting smoking.

Leslie M. Watson testified that he gave general instructions at the garage to keep the tank of his automobile filled; he was paid the amount of the damage and he subrogated the plaintiff to all his rights.

Charley White was working for the defendant company; he was pumping gas into Watson’s car when about a pint flowed over; a customer threw a match on the floor and the oil caught fire.

James Robertson testified that Mr. Mangham admitted to him that he had thrown the match; Mangham was a customer.

The contract between the defendant and Watson contains the following clause:

“3. Lessor will endeavor at all times to protect the property of lessee but will not be responsible for loss or damage to automobiles or their contents from any cause whatsoever except damage resulting from fault or negligence of lessor’s employees while handling automobiles within the building under lessor’s orders.”

This is substantially the liability of the garage keeper under the law.

C. C. 2929 (2900): “The deposit is essentially gratuitous. If the person with whom the deposit is made receives a compensation, it is no longer a deposit, but a hiring.”

C. C. 2937 (2908): “The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”

C. C. 2938 (2909): “The provision in the preceding' article is to be rigorously enforced. 1st. * * *

“2nd. If it has been agreed that he shall have a reward for preserving the deposit.” See Levy vs. Kirwin, No. 9679 Ct. App.; No. 10,883, idem.

We have been very materially assisted in the decision of this case by the very able opinion of the Honorable Yal J. Stentz, judge of the City Court, from whom this appeal comes. He said in part:

“The only acts of negligence imputed to the defendant were the spilling of the gasoline on the floor of the garage and in not posting signs of ' “no smoking”. A garage keeper is not an insurer of the automobiles left in his charge to be cared for, but he is bound to use reasonable or ordinary diligence in their care and keeping and they are bound to take the same care as a prudent man ordinarily takes of his own property. Berry on Autos, See 1408 a, C. J. S. 42, p. 85; 3 R. C. L., Sec. 21, p. 94.
“In the absence of a special statute on the subject, or a special contract, a garage keeper is bound to exercise reasonable care, but does not' insure a vehicle in his custody from damages from fire in the garage. He is liable for the injury only when his negligence has contributed thereto.
“Huddy, Sec. 243: * * * ‘Ordinary care requires only that precaution be taken against occurrences that can be and should be foreseen; but does not require that one should anticipate unusual and improbable, though entirely possible, occurrences.’ 8 Orl. App. 216. Nor to anticipate when persons will be negligent. Damonte vs. Patton, 118 La. 530, 43 South. 153; Ford vs. Tremont Lbr. Co., 123 La. 742, 49 South. 492. Nor do I believe that the spilling of a little gasoline in a garage, while filling an automobile tank, is negligence per se; it is merely incidental to the business. But if it were a negligent act, it was only a remote cause of the fire, the direct and proximate cause being the throwing of the lighted match. Globe & Rutgers Fire Ins. Co. of N. Y. vs. Standard Oil Co. of La., 158 La. 763, 104 South. 707.
“It is said to be a universal rule resting upon obvious reasons and justice that a wrongdoer shall be held responsible only for the proximate and not the remote consequences of his actions. 13 Gray 481; Maxwell & Putnam vs. Southern Pacific R. R. Co., 48 La. Ann. 402, 19 South. 287.”

The damages for the violation of a contract are such as had “entered into the contemplation of the parties at the time of the contract”. C. C. 1931 (1928).

The rule is the same in offenses and quasi offenses. S. 3.

“The defendant is held liable for the probable and natural consequences of his acts, i.e., those which would ensue in the usual course of things.” 1 Sedgwick, p. 108, S. 68, p. 128, S. 79.

“If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause and refuse to trace it to that which was more remote.”

Cooley on Torts, p. 68.

“The damage must follow the negligence as the efficient cause in unbroken sequence without any intervening independent cause to break the continuity.” 17 C. J. 714, S. 39, note 87.

“Remote damages are such as are the result of accident or an unusual combination of circumstances which could not reasonably be anticipated and over which the party sought to be charged had no control.” 17 C. J. 715, S. 11.

The damage in this case was net caused immediately by the spilling of the gas upon the floor which was a remote cause, but was occasioned directly and proximately by the negligent act of the person who threw the lighted match.

For the above reasons we are of the opinion that the judgment appealed from is correct, and it is therefore affirmed.


text:
    No. 10,887
    Orleans
    COMMERCIAL CREDIT CO. v. PARRETT
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Exemptions from Seizure — Par. 11.
    A motorman employed by a street railway company to operate an electric street car is a “laborer” within the meaning of- the law exempting laborers’ wages from seizure.
    Appeal from First City Court, Division “A”. Hon. Wm. A. Bahns, Judge.
    Action by Commercial Credit Company, Inc., against Ernest Parrett.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Sanford Levy, of New Orleans, attorney for plaintiff, appellant.
    J. W. Hopkins, of New Orleans, attorney 'for defendant, appellee.
   WESTERFIELD, J.

The question presented by this appeal is whether a motorman of an electric street car is a laborer within the meaning of the law exempting a' laborer's wages from seizure.

The duties of a .motorman, as described in the record, may be briefly stated. After serving a short apprenticeship, covering a few days, during which he is instructed in the guidance and control of electric cars, he is installed as motorman, when his occupation consists in starting and stopping his car. It is true that he runs a machine propelled by electricity; that he must learn to use a “controller” by means of which the power is turned on and off, and he must use a pneumatic air brake in stopping his car. But the controller and the "brake, though far from simple in their adaptation of physical laws to commercial purposes, offer no difficulty whatever to the motorman, who merely moves them backwards and forwards, describing an arc of a circle within the mechanical limitation of their construction. It is suggested that the duties of a motorman are not entirely physical, and we must concede this to bo true. Perhaps more than the usual mental equipment is required for this particular kind of labor. Certainly more than is demanded by certain occupations we can call to mind. However, we can not subscribe to the idea that a laborer needs only to possess sufficient strength for his tasks. It is difficult to perceive of any occupation which does not require some quality of the mind, however primitive, in the discharge of its duties. It is, of course, difficult to draw the line which distinguishes the laborer from the artisan or professional worker. Webster gives us the following definition of labor:

“Human effort, bodily or mental, made wholly or partly, for some end other than the pleasure directly ensuing from its performance.”

Of course, the physical predominates over the mental activities of the laborer. The word “laborer” is defined by the same authority as:

“One who does physical .labor; one who works at a toilsome occupation; esp. a person who does work that requires strength rather than skill as distinguished from artisans and from the professional classes.”

Our Supreme Court in holding that a car repairer was a “laborer”, State vs. Ross, 144 La. 915, 81 South. 386, said:

“A laborer has been held, by various courts, in a restricted sense, to be one who performs manual labor, menial or physical exertion, labor or toil, not requiring special accuracy, knowledge or training, for hire, or wages, under the direction of his employer,' master or superior, and hence distinguished from an artisan, professional man or skilled workman.”

In Groves and Rosenblath vs. Atkins, 160 La. 107, the court held that a carpenter was a “laborer” but limited its decision to the particular carpenter under consideration.

“We prefer, however, to rest our decision in this case on the ground and nature of the work performed by relator in determining whether he was a laborer within the meaning of the statute, and not to lay down any definite rule by which all carpenters would be brought within or all excluded from the provisions of the statute. We have previously noted that relator worked under the direction of his employer. He exercised no skill, discretion, or 'judgment of his own. He did the bidding of his employer, and had, so to speak, no independent mind of his own. He earned his living by the ‘sweat of his brow’.”

A railroad engineer was held not to be a “laborer” because '“his position is highly responsible, and required judgment and attention and conscientious discharge of duty” and “is not to be compared with a laborer who hires himself out to serve on plantations or to work and toil in manufacturies as a mere servant, subject without question to the will and direction of the master”. His “eye and hand are relied on to protect the hundreds of passengers whose safety depends on his skill and duty intelligently performed. He is an employee and not a mere laborer”. State vs. Land, 108 La. 512, 32 South. 433.

In other jurisdictions we find that under a mechanic’s lien law which extends to those who perform labor, an architect has been held to be included. Strykes vs. Cassidy, 76 N. Y. 50.

“A bookkeeper of a corporation who, though occupying a position as one of the directors thereof, and for that purpose having been made a nominal holder of stock, yet has no pecuniary interest in the corporation, has been held to he a laborer and entitled to a lien for services.” Consolidated Coal Co. vs. Chemical Co., 54 N. J. Eq. 309; Bouvier’s Law Dictionary, Vol. 2, p. 1819.
“Under acts exempting the wages of laborers from garnishment a superintendent of the erection of a building: Moore vs. Heany, 14 Md. 559; a shipping clerk; Butler vs. Clark, 46 Ga. 466: an overseer of a plantation; Coraker vs. Matthews, 25 Ga. 571; the forwarding clerk of a railway company; Claghorn vs. Sancy, 51 Ga. 576; a bookkeeper; Lamar vs. Chisholm, 77 Ga. 306; a teacher; Hightower & Co. vs. Slaton, 54 Ga. 108, 21 Am. Rep. 273 (contra Seymour vs. School District, 53 Conn. 502, 3 Atl. 552); a private secretary to the president of a corporation; Abrams vs. Anderson, 80 Ga. 570, 5 S. E. 778, 12 Am. State Rep. 274; and a telegraph operator; Boyle vs. Vanderhoff, 45 Minn. 31, 47 N. W. 396; are held to be included in the term ‘laborers’.”

Bouvier, Vol. 2, p. 1820.

“Whether a person is a laborer or not under statutes exempting wages from garnishment depends upon whether his duties are mainly physical or mental.” Buchanan vs. Echols & Nix, 70 S. E. 28.
“The test for determining who is a ‘laborer’ is whether the work of a particular person involves mental skill, business capacity, involving the exercise of the intellectual faculties, or whether the work depends on, mere physical power and manual labor; in other words, whether mind or muscle preponderate in the performance of the work.”

Thompson vs. Passmore, 72 S. E. 185.

In the case at bar there can be no doubt that defendant exerts far greater physical than mental powers in the performance of his duties. A motorman is easily distinguished from a railway engineer, as will appear by reference to the description of the engineer’s occupation given in the quotation from State vs. Land, 108 La. 512, 32 South. 433 (supra).

Our conclusion is that the defendant, motorman, is a laborer within the meaning of the law exempting laborers’ wages from seizure.

For the reasons assigned the judgment appealed from is affirmed.