author: WESTERPIELD, J.

text:
    No 9127
    Orleans
    STANLEY A. HARVEY, Appellant, vs. LOUIS MOUNCOU
    (December 14, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 261, 263.
    Parol evidence cannot be admitted to vary the terms of a written contract, but a. subsequent oral agreement altering, waiving, discharging or otherwise novating a prior transaction cannot be excluded because of the prior transaction having been reduced to writing.
    2. Louisiana Digest—Estoppel—Par. 34.
    Where the parties to a written contract subsequently enter into a verbal agreement abrogating the written contract, they will be estopped to deny the oral contract and cannot object to its introduction in evidence upon the ground that it is an attempt to vary the terms of the written contract by parol. The parol evidence rule has no application.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for the collection of a commission due for the sale of a certain piece of real estate belonging to the defendant.
    There was judgment for the defendant and plaintiff appealed.
    Judgment reversed and remanded.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    John D. Nix, Jr., and W. W. Wright, of New Orleans, attorneys for defendant, appellee.
   WESTERPIELD, J.

Plaintiff, a real estate agent, sues the defendant for $300.00 as a commission upon the sale of a certain piece of real estate, belonging to defendant, alleging a written agreement entitling him to the amount claimed.

Defendant admits employing defendant to sell his property under the written agreement setup by plaintiff but avers that plaintiff’s authority to sell his property and the written agreement between them was subsequently revoked by mutual consent long before the sale of the property.

There was judgment as prayed for and defendant has appealed.

The contract sued on describes the property listed for sale with plaintiff and stipulates that plaintiff as agent shall receive five per cent commission upon such amount as the property sells for; the agent is given full control of the property and the defendant as owner agrees not to interfere and to refer all prospective purchasers to the agent. In a word, the plain intent is that the agent shall have a commission if the property is sold during the term of the contract no matter how sold or by whom, and the owner agrees that “I will notify my agent in writing and give him ninety days notice if I desire this contract discontinued”. There was proof by plaintiff that the property was sold, though not by plaintiff, yet under circumstances entitling plaintiff to a commission if the contract sued on was still in force at the time of the sale. It is admitted that no written notice was given plaintiff by defendant of defendant’s desire to terminate the agreement as required by the terms of the contract. Defendant offered to show by parol that the provision of the contract requiring ninety days’ written notice of withdrawal by defendant had been waived by mutual agreement, but upon objection of counsel this evidence was excluded upon the ground that its effect would be to vary the terms of a written contract. The point presented for our decision by this appeal is the correctness of this ruling of the learned judge a quo.

The rule applied is of ancient origin and of unquestionable authority though it was. once otherwise. We quote the following interesting statement of Mr. Wigmore:

“In the primitive Germanic notions at the time of the barbarian invasions and under the Merovingian and Corlovingian monarchies, there was certainly no notion of the indisputability of the terms of a document. This is explained, and was indeed predetermined by the character of the civilization of those peoples. When the Germanic tribes spread west and south, and absorbed the Roman territories in 'Gaul, Spain and Northern Italy, they brought with them two marked traits—an ignorance of letters and a legal system of formal and oral transactions. They found writing in use among the Romanized peoples and (in Italy at least) an advanced habit of transaction by notarial documents, and this they, in part, fell in with. But it remained alien to their own ideas; and after the dissolution of the Corlovingian Empire and the subsidence of the Romanesque influence (say by the 900’s) the alien element that found entrance Was excised and the development of their native system proceeded on its own main lines. The document, then, even in its most definite type (carta) is, in the Germanic system, merely one of the symbols that entered into the formalism of the transaction, and like the wand, the glove and the knife, has an efficacy independent of its written tenor— which indeed could mean nothing to the parties who employed it.
“In this stage then the ‘carta’ merely plays a convenient part, first, by enabling the formal delivery of the land to be made symbolically away from the premises and next by preserving against future forgetfulness the names of the witnesses.”

Proof at this period of development was made by the witnesses who freely contradicted the terms of the writing if opposed to their recollection of the transaction.

The beginning of the modern doctrine is co-eval with the introduction of the seal. To quote again from Mr. Wigmore, “the legal value of the seal was the result of a practice working from above downwards, from the king to the people at large. It is involved in the beginning with the Germanic principle that the king’s word is indisputable. Who gives him the lie forfeits life. The king’s seal to a document makes the truth of the document incontestible. * * * ’As the habitual use of the seal extended downwards its valuable attributes go with it. First a few counts and bishops acquite seals; and then their courtesies are sought in lending the impress and guarantee of their seals to some document of an inferior person. Finally the ordinary freeman comes usually to have a seal and his seal, too, makes a document indisputable—at least by himself.”

The seal was also very useful in other respects. The great charter of Runnymede bears the picturesque seals of the barons who would otherwise not be parties to the instrument since they could not write. The indisputable character of documents under seal and the popular feeling in reference thereto is well illustrated by the greatest of lay writers on Henry IV:

“Dick: The first thing we do let’s kill all the lawyers.
“Cade: Nay, that ! mean to do. Is not this a lamentable thing, that the skin of an innocent lamb should be made parchment, that parchment being scribbled o’er should undo a man? Some say the bee stings; but I say ’tis the bee’s wax, for I did but seal once to a thing and I was, never mine own man since.”

(Wigmore, Vol. V, p. 297.)

The history of the rule to which we have adverted at length indicates that considerations of convenience largely influenced its development. Its first service in permitting the symbolical delivery of land and dispensing with livery of seizin and as a record of the names of the witnesses who were in no sense controlled by the terms of the document, was one of convenience. In its highest expression as “where a jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act” is largely practical. There is nothing sacrosanct about a paper writing which invests it with solemnity and prevents its modification under some prescribed formalism. It may not be opposed unilaterally by parol. Neither plaintiff nor defendant could be heard in an effort to prove any variance of its terms. It cannot be contradicted by oral evidence. This is and has been the rule for centuries. But oral testimony may be admitted to prove a subsequent agreement modifying or abrogating its terms. In that case the question is whether the subsequent convention or agreement is in proper form and if so it is admissible not to vary the written contract but as proof of another contract. The principle of law controlling in this situation has no relation to the parol evidence rule but is based upon estoppel. A privy to an agrément can not be heard to deny his connection therewith. To use a simple illustration, if A sells his horse to B and the transaction is reduced to writing and thereafter B, becoming dissatisfied with his purchase, enters into a verbal agreement with A whereby the horse is returned to A under conditions mutually satisfactory, the second transaction whereby A reacquires the horse is just as valid in law as the first since there is no requirement that the sale of personal property be in writing, and there can be no doubt of its being susceptible of oral proof notwithstanding its negation of the written evidence in the first contract as to the ownership of the horse.

“The general rule now under consideration rests on the assumption that a specific transaction has been embodied exclusively in a single document. All distinct and separate transactions may therefore be established. and availed of whenever they are in themselves valid. Now a transaction subsequent in time must always be a separate transaction. The rule of exclusion can only apply to negotiations contemporaneous in time, or prior but incomplete. Where a document, for example, is executed on July 1, it may be held to embody the' final and exclusive result of negotiations before and up to the time of execution; but a transaction on August 1 must be a separate one and therefore can never be excluded so far as the effect of the document of July 1 is concerned. It may be that some rule of form will sometimes make the transaction of August 1 invalid in itself; as when a writing is required by the statute of frauds, or where a parol release will not discharge a sealed contract; or when an agreement not to sue will not be enforced at common law. But the presr ent rule can interpose no obstacle.
“In particular any subsequent agreement waiving, discharging or otherwise novating a prior transaction is not excluded by reason of the prior transaction having been reduced to writing.”
Wigmore, Vol. V, Verbo Parol Evidence Rule, p. 330.

Reference to the following Louisiana authorities collectively establishes the principle here announced though no single case tells the whole story any more than a single stone reveals the design in a mosaic:

Page vs. Nicholson & Co., 27 La. Ann. 116.

Monarch vs. Board of Com’rs of McDonogh School Fund of City of New Orleans, 49 La. Ann. 991, 22 South. 259.

Crook vs. Tensas Basin Levee Dist., 51 La. Ann. 286, 25 South. 88.

Brink vs. Bartlett, 105 La. Ann. 336, 29 South. 958.

Selby vs. City of New Orleans, 119 La. 900, 44 South. 722.

Wellman vs. Smith, 114 La. 230, 38 South. 151.

Queensborough Land Co. vs. Cazeaux, 136 La. 724, 67 South. 641.

O’Leary vs. Board of Port Com’rs for Port of New Orleans, 150 La. 649, 91 South. 139.

We find tlie principle applied in building contracts , and wé select the following authorities from other states and from -the federal courts:

“Where a contract for alteration and repair of a vessel provided that the contractor should make no claim for extra work unless he could show a written order for the work and written approval of the designers and the price, and that no verbal agreement and order of any of the parties or their agents should be claimed by either party to modify the clause, and no waiver thereof not in writing and signed by the parties should have any force, allowances should not be made for extra work based upon verbal agreements unless on proof so clear and convincing as to leave no doubt as to the intention of the parties to waive the contract provision and substitute an oral agreement therefor.”

James Reilly Repair and Supply Co. v. Smith, 177 F. 168.

In Jefferson Hotel Co. vs. Brumbaugh, 168 Fed. 867, it was held that where the owner retained possession and the enjoyment without protest ■ of extras orally ordered of the contractor by the superintendent, the owner was estopped to deny the general authority of the superintendent to give the order, and the contract provision that all extras should be ordered in writing was waived. ’

In Theis vs. Svoboda, 166 Ill. App. 20, the court held that notwithstanding a building contract provides that all extras must be ordered in writing, the owner may waive such provision, and if he orders extras verbally he is liable therefor.

In McGowan vs. Gate City Malt Co., 150 N. W. 965, it was decided that a subcontractor could recover for extra work verbally ordered notwithstanding a provision of the sub-contract to the effect that “no work done or material furnished by the sub-contractor should be considered as extra or paid for as such unless a separate agreement in writing therefor should be made before the commencement of such work or furnishing of such material”.

“A written contract to repair a building according to specifications may be modified by a subsequent parol contract for extra work.” Derrico vs. Muller, 142 N. Y. 5479.

In Pierce vs. Powers, 180 Ill. App. 687, it whs held that the parties may waive the conditions in a contract under seal by parol and when so waived the conditions are abrogated.

In Becker vs. Becker (Ill.), 95 N. E. 70, it was held that: “A waiver of a covenant by the party for whose benefit it is inserted into a written instrument may be made by parol and such waiver is held not to be a modification or change in the terms of the original agreement”.

Our conclusions are that the judge a quo erred in excluding the oral testimony offered in support of defendant’s case and that consequently the case must be remanded for the purpose of admitting and considering the rejected testimony.

For the reasons assigned the judgment appealed from is reversed and this cause is remanded for further proceedings according to law and consistent with the views herein expressed.


source: Caselaw Access Project

author: CLAIBORNE', J.

license: Public Domain

text:
    No. 9081
    Orleans
    MAX BARNETT FURNITURE COMPANY v. LOUIS J. MARTEL, Appellant
    (October 19, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)

      (Syllabus by the Ooiirt.)

    1. Louisiana Digest — Sequestration—Par. 5, 15. ' _
    When plaintiff claims a sum'‘of money with privilege, his affidavit' that he fears that the defendant will dispose of his property entitles him to' a seques- • tration; he need not support these fears ’ by proof. ■

      2. Louisiana Digest—Sequestration—Par. 2.
    While it is necessary that the plaintiff should claim a specific sum, his sequestration will not be dissolved if he claims more than is due him.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit, coupled with a sequestration, for the price of furniture sold and delivered.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Fred C. Marx, of New Orleans, attorney for plaintiff, appellee.
    Paul A. Sompayrac and Herman Wind-berg, of New Orleans, attorneys for defendant, appellant. R
   CLAIBORNE', J.

This is a suit for the price of furniture sold and delivered.

The plaintiff alleges that he sold and delivered to the defendant a lot of furniture; that in part payment thereof the defendant subscribed a note for $600.00 dated May 13, 1921, payable ninety days after date with eight per cent interest from date until paid; that the defendant has paid $200.00 on account of said note, leaving a balance due of $400.00; plaintiff further averred that it had a vendor’s privilege on said furniture and that it feared that the said Louis J. Martel “will conceal, part with, or dispose of the same in his possession during the pendency of this suit, and that a writ of sequestration is necessary to protect petitioner in the premises”.

Plaintiff prayed for a sequestration and for judgment for $400.00.

The affidavit for the sequestration read as follows:

■ “Lee J. Keeting, being duly sworn, deposes and says: That he is credit man for the Max Barnett Furniture Company, Incorporated, and that all the averments of the above and. foregoing petition are true and correct, except such as are stated upon information and belief, and those he believes to be true.”

The sequestration was issued as prayed for.

The defendant filed a motion to dissolve the sequestration upon two grounds: First, that plaintiff had no just cause to fear that defendant would conceal, part with, or dispose of the property subject to the privilege, and second, that defendant did not owe the full amount sued for.

It does not appear that the motion was served upon the plaintiff, or' that any action was taken concerning it.

For answer the defendant admitted the sale of the furniture to him, and the issuance of the note by him for $600.00; but averred that he paid on account of said note $155.00 on January 9, 1922, and $100.00 on February 20, 1922, leaving a balance due of less than $400.00. He further averred that “he notified plaintiff at the time of paying $100.00 on February 20, 1922, by messenger who took check that he would make every reasonable effort to pay the remainder of said note in ninety days and had every reason under custom to expect plaintiff would and had granted the time, as plaintiff made no answer to said notification”.

Defendant prayed for dissolution of the sequestration with damages and for dismissal of plaintiff’s suit.

On the trial of the case plaintiff admitted that defendant was entitled to a further credit of $23.27, reducing plaintiff’s claim to $376.73.

There was judgment in favor of plaintiff for that amount, maintaining the sequestration and dismissing defendant’s reconventional demand.

From this judgment defendant has appealed. First, it was not necessary for plaintiff to substantiate or justify his allegations that he feared that the defendant would conceal or dispose of his property. Since the case of Lowden vs. Robertson, Jr., 40 La. Ann. 825, 5 South. 405, the Supreme Court, affirming decision to the same effect, has decided that a creditor having a privilege, especially a vendor of movables, may issue a sequestration on the simple affidavit that he fears that the defendant will dispose of the property subject to the privilege. C. P. 275 S. S. 7 and 8, affirmed in the Cypress Shingle and Lumber Co. vs. Lorio, 46 La. Ann. 441, 15 South. 95, and Goldman vs. Goldman & Masur, 47 La. Ann. 1463, 747, 17 South. 881.

It is true that the Supreme Court in American Furniture Co. vs. Grant-Jung Furniture Co., 50 La. Ann. 931, 24 South. 182, decided otherwise. But no reference was made therein to the Lowden case, and it does not appear that it was called to their attention.

The American Furniture Co. case was affirmed in Vives vs. Robertson, 51 La. 11 (24) and Boimare vs. St. Geme, 113 La. 898, 37 South. 869.

But in order to put the question beyond the vacillating judgments of courts, the Legislature in 1912 passed Act 190 of 1912 which is an endorsement of the Lowden case, 40 La. 825, 5 South. 405. This statute has been enforced in Bomer-Ferguson Co. vs. Shapiro, 148 La. 736, 87 South. 720; Gueydan vs. T. P. Rauch Co., 156 La. 397, 100 South. 541, 10 Orleans App. 280; Teissier Digest 156.

The charge by defendant’s attorney that the decisions in the Lowden and other cases are “a blot upon our jurisprudence” stands alone against the opinion of eminent judges and the endorsement of the members of the Legislature, who passed the Act of 1912 on the recommendation of the Louisiana Bar Association.

Second. While it is necessary that the plaintiff in sequestration should claim a definite and specific sum the penalty for inadvertently praying for a larger sum is not a dissolution of the writ.

The case of Wilson vs. Churchman, 4 La. Ann. 452, does not support defendant.

Third. Plaintiffs’ affidavit for the sequestration is sufficient. The petition sets out its claim clearly and the affiant swears “that all the averments of the above and foregoing petition are true and correct”. C. P. 276. There is no proof that the plaintiff granted the defendant any extension.

Judgment affirmed.


author: WESTERFIELD, J.

text:
    No. 9032
    Orleans
    MORGAN’S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY, Appellant, v. GODCHAUX SUGARS, INC., ET AL.
    (November 16, 1925, Opinion and Decree)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Parties—Par. 12.
    There is no misjoinder of parties defendant where they have a common interest in the principal matter in controversy, notwithstanding some distinction in plaintiff’s claim against each defendant.
    2. Louisiana Digest—Parties—Par. 12.
    Where a consignor and a consignee of a shipment of sugar are sued in solido by a carrier for demurrage, there is no misjoinder of parties defendant.
    Appeal from Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit by a railroad for the recovery of demurrage charges.
    Both defendants filed exceptions of misjoinder of parties, which were maintained by the court, and plaintiff has appealed.
    Judgment reversed and case remanded for trial according to law.

      Denegre, Leovy, Chaffe and E. L. Gladney, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellee.
   OPINION

WESTERFIELD, J.

Plaintiff sues Godchaux Sugars, Inc., and Carroll K. War-moth in solido for the recovery of certain demurrage charges amounting to $373.87. It is alleged that plaintiff as the last connecting carrier transported and delivered certain sugar cane which had been sold by Carroll K. Warmotk to Godchaux Sugars, Inc., of Raceland, La., and shipped from Sara Switch, La., to Raceland, plaintiff railroad receiving the sugar in New Orleans, La., from its connecting carrier; that plaintiff paid to the initial carrier the transportation charges (freight to New Orleans and demurrage at point of origin, but collected from Godchaux Sugars, Inc., only the freight charges omitting inadvertently to collect the- amount due for demurrage at point of origin, and for that amount this suit is brought.

Both defendants filed exceptions of misjoinder of parties defendant, which were maintained by the court a qua, and plaintiff has appealed.

Plaintiff’s counsel contends:

“That it would approach a travesty on justice to affirm the judgment of the lower court and to require plaintiff to bring separate actions against each of the present defendants. Neither of them would gain anything by such a result and the only consequence would be to cause a multiplicity of litigation, and the expenditure of unnecessary costs and time on the part of all concerned. There might besides be-certain rights as between the two defendants which could be taken care of in one suit which on the other hand qould not be taken care of if it were handled as two suits.”

And defendant’s counsel argues:

“The railroad sues the consignor and the consignee in solido not alleging any special contract with either. The obligations of each, if any exist, arise out of separate, distinct and unrelated contracts which each has made with the railroad, the consignor not being a party to the contract between the railroad and the consignee, and the consignee not being a party to the contract between the railroad and the consignor. The contracts may each give rise to a cause of action, but the contracts being different, the causes of action are different and cannot be joined in one suit. Further, the consignor and consignee not being jointly or in solido liable, cannot be joined as defendants in the same suit.”

In Gill vs. City, 119 La. 19, 43 South. 897, the court observed:

“The Code is singularly silent on the subject of joinder of parties. The provision bearing nearest upon the subject is that contained in Article 147, et seq., dealing With ‘Cumulated Actions’, where the cumulation of several demands is expressly authorized, provided they are not inconsistent.
“This, apparently, leaves the door open for several plaintiffs to join 'their suits against several defendants, regardless of privity or connection between them, so long as the demands are not inconsistent. But no one ever understood that the intention was to sanction anything of that kind, and this court soon had occasion to discountenance such a practice, declaring that it was ‘at variance with well-settled rules of pleading’, (Mayor vs. Azmant, 14 La. Ann. 181; Dyas vs. Dinkgrave, 15 La. Ann. 502, 77 Am. Dec. 196), and that ‘the law diu not favor’ multiplicity of actions against different parties in the same suit”. Leverich vs. Adams, 15 La. Ann. 310. But the court did not say where this ‘law’ and these ‘well-settled rules of pleading’ were to be found.
“We look in vain for them in the Spanish and French systems of procedure prevailing at the time of the adoption of our Code of Practice; but we find them in the commonlaw books, and we know that our Code of Practice was derived largely from that system, while our Criminal Procedure was taken bodily from it. The rules there laid down are safe guides, all the more so because they are not the product of arbitrary legislation, but the gradual result of the application of pure reason to the exigencies of cases in actual practice.”

The court thereupon quotes with approval (p. 21) the following statement of the common law from 14th E. of P. and P. 195:

“There is no settled and inflexible rule as to whether or not a pleading is multifarious. The question is one which must be determined largely by the circumstances of each particular case.
“Multifariousness as to parties. The other form of multifariousness, and the one which is said to be more properly such, consists in joining in the same suit, either as complainants or defendants, parties who are without a common interest in the subject of the litigation and have no connection with each other. In order to complain successfully of multifariousness in this form,, a defendant must show that he is brought as a defendant upon a record with a large portion of which, and of the case made by which, he has no connection whatever; but a bill is not so multifarious where complainants have a common interest as to the point at issue, though their claims are in a sense distinct.”

We quote the following from Ruling Law, Vol. I, p. 362-3.

“It is generally prerequisite to the joinder of causes of action that all the causes of action should affect all the parties to the action, both parties- defendant and parties plaintiff. * * * But it is not necessary under the statutes or in the absence of statutes that all the parties should be affected equally, it being enough that they are all affected.
“It is no objection to the joinder of causes of action that they concern separate primary rights, enforc'ible by the proper remedy so long as they each reach back to ‘the point of union as the parent cause thereof they all arise out of one transaction and may be vindicated together regardless of the form of remedy requisite to each, provided they all affect the parties and do not require different places of trial.’

It is unnebessary to go as far as the authorities quoted from the common law in order to approve of the joinder of parties defendant in the case before us. Adhering closely to our local jurisprudence we extract the following statement of the rule as sufficient basis for overruling the exception of misjoinder in this case:

“The test to be applied in considering a plea of misjoinder is whether the parties, plaintiffs or defendants, have a common interest in the subject matter of the suit.” Reordon vs. Dickinson, 146 La. 556.

The interest of both defendants is common to the subject matter of the suit as set forth in the petition.

It must be conceded that plaintiff has a cause of action against both consignor and consignee. Central Georgia Railway Company vs. Birmingham Sand and Brick Co., 9 Ala. App. 419, 64 South. 202; Union Pacific Railway Co. vs. American Smelting and Refining Co., 202 Fed. 720.

The payment of transportation charges by either would release the other. A judgment against plaintiff in a suit 'against either defendant (if separately sued) would benefit the other. The liability of both defendants grows out of the same transaction, the transportation of the sugar, the contract of affreightment of carriage. If there are certain distinctions to he observed in fixing the liability of the consignor and of consignee, as counsel contends, they are unimportant and do not affect the principle involved.. We see no reason in law or expediency for compelling the plaintiff to conduct two suits, where one will suffice. The principle that two blades of grass should be made to grow where but one grew before, so pertinent to 'good husbandry, finds no application to litigation; consequently, tw.o law suits growing wher.e but one grew before is not a consummation devoutly to(,be wished for.

The whole tendency of modern practice in both state and federal' courts is toward simplicity and celerity. The ages old reproach of • the delays of the law seems at last to have sunk into our inner consciousness. That which caused Hamlet to contemplate suicide • and Dickens to • write with such withering satire concerning the circumlocution office and Jarndyee vs. Jarndyce seems at last to be receiving the intelligent consideration of those in a position to remedy its evil. We think there is ample and express authority to the announcement of the principles controlling our conclusions here, but we are frank to say that the sweet reasonableness of the rule is not its least commendation.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the exception of misjoinder be overruled and the case remanded to be proceeded with according to law, defendants to pay costs of this appeal.


author: CLAIBORNE, J.

text:
    No. 10,173
    Orleans
    MAX BARNETT FURNITURE COMPANY, Appellant v. B. A. GUY
    (November 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 252, 256.
    A purchaser of property who receives and uses it.for a long time notwithstanding defects which render its use inconvenient can demand only reductions in the price as will enable him to pay for necessary repairs.
    Appeal from the First City Court, Division “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit for balance due upon two promissory notes. The defense was want of consideration.
    There was judgment' for defendant and plaintiff appealed.
    Judgment reversed.
    Frank McLaughlin, of New Orleans, attorney for plaintiff, appellant.
    J. C. McGee, of New Orleans, attorney for defendant, appelllee.
   OPINION

CLAIBORNE, J.

This is a suit for $130.93 balance due upon two promissory notes made by the defendant to the order of petitioner dated respectively October 4, 1921, and December 12, 1922, for the sum of $44.43 and $314.80 upon which $128.30 have been paid on account.

Defendant admitted having made the notes sued on but denied being indebted thereon for want of consideration.

Defendant further averred- that said notes were given as part of the purchase price of a bedroom" set of $750; that said set was guaranteed to be of solid American walnut; that the rocker,- chair and bench of said set do not match the other pieces; that the plaintiff promised to match the same, but failed to - do so; that the head board of the bed has split; that the drawers will not open or close and plaintiff has failed to repair them; that the price also included a living room suit for the price of $158; that the 'chair belonging to said suit is falling apart and the plaintiff has failed to repair it.

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

Plaintiff has appealed.

There is absolutely no testimony nor any documentary evidence that intimates that the defendant purchased said furniture believing it to be American walnut or any other kind of wood, or that plaintiff represented it to defendant to be American walnut or any other kind of wood. In his testimony when asked what was the nature of his complaints concerning the furniture, he testifies that in March, 1922, he bought a bed room set from plaintiff; he found it defective and exchanged it for a more valuable set which is part of the furniture involved in this suit, and for which he paid an additional price represented by the notes in this suit, it is this second set of which he now complains. Being asked to mention the defects he says:

“The rocker to the $158 suite was defective. It has fallen apart and the bottom has fallen out.
“The dining room suite was also defective; the boards in the serving table had never closed. * * * In the parlor set all the bottoms are coming out. The spring in the duofold where it folds over has never been fastened, the drawers in the bed room suite stick and it is utterly impossible to open them, and they were to give a suite that matched. In the bed room suite the rocker, chair, and bench do not match. One of the rollers in the chair of the bed rodm suite does not fit. It is short and the chair rocks back and forward all the time.” * * * he has been using the furniture since it was bought. * * *

Mrs. Guy testified:

“In the living room set one of the chairs is coming to pieces and the bottom is coming out and coming unglued in the back, and the duofold does not open; also I noticed the other chair to the ’suite, the straight chair in the living room suite is coming unglued. In the dining room set the table does not fit, and the boards are about one-half inch apart which makes it impossible to close the table."

They have been using the furniture since December, 1922.

These are the only two witnesses on behalf of the defendant.

Two letters of the defendant one dated February 14, 1923, and the other April 16, 1923, are addressed to the plaintiff.

The former calls attention to the parlor suite as being out of order, and the other reminds the plaintiffs, that the defendant has not yet seen anybody “to give us service on our furniture”. Not a word said about any misrepresentation or deception concerning the material of the furniture.

On the other .hand the plaintiffs produce Harry L. Moses an expert furniture manufacturer and decorative contractor for twenty years. He called at defendant’s house and inspected the furniture. It was in “very good condition”. There was some slight usual conditions of sticking drawers and minor defects which constantly appear * * * the bed headboard was not split, “it had just come unglued”; there was a cane chair with the seat out, it had become unglued and was loose; it could be easily repaired for $6 or $8 including .the labor and material; the leaves of the table would not close tightly; this defect could be repaired for the same cost.

H. T. Quinan is salesman for plaintiffs; he sold “American Walnut Veneer”.

Under the law and the evidence defendant can claim only such sum as would be sufficient to repair defects in the furniture. There is no evidence as to what that amount might be except the testimony of Harry L. Moses about $16. See also Champion Shoe Machine Co. vs. Culmoney, 1 La. App. 486; Thompson Machinery Co. vs. Haley, 1 La. App. 541; Hooper vs. Dry Hand Mop Co., 1 La. App. 622.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that the defendant B. A. Guy be condemned to pay the plaintiff, the Max Barnett Furniture Company, Inc., the sum of One Hundred and fourteen 93/100 dollars with eight per cent per annum interest from November 17, 1924, together with ten per cent attorney’s fees thereon and all costs of suit.


author: BELL, J.

text:
    No. 9065
    Orleans
    H. T. COTTAM AND COMPANY, INC., Appellant v. ILLINOIS CENTRAL RAILROAD CO.
    (October 19, 1925, Opinion and Decree.)
    (November 16, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

      I. Louisiana Digest—Carriers of Passengers and Goods—Par. 137.
    Where goods are lost or damaged under an interstate contract of affreightment, the liability of the carrier is for the full actual loss or damage of such, property at the time and place of destination. Recovery for 'the resale profits on such goods, had same been delivered, will not be allowed.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    This is a suit for the recovery of the loss due to defendant’s failure to safely carry and deliver goods to point of destination.
    There was judgment for plaintiff in part and plaintiff appealed asking for an increase in the amount allowed.
    Judgment affirmed.
    Dart, Kernan and Dart, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellee.
   BELL, J.

The plaintiff, a wholesale grocery company at New Orleans, sues the defendant railroad company for recovery of $1,473.76, representing the loss claimed to have been sustained as a result of the defendant’s failure to safely carry and deliver certain goods, consisting mostly of candy, from Chicago, Peoria, Memphis and St. Louis, to point of destination New Orleans. There were seven shipments, and the total' claim for losses aggregated the above amount, but at the original trial of this case plaintiff reduced its claim for damages on the first shipment by $47.23, thus making the net amount claimed $1,426.53.

The answer admits the shipments, as alleged in the petition, but denies all other allegations for want of sufficient information. Further answering, the defendant avers that the shipments were interstate shipments; that the bills of lading covering same were issued in conformity with the Act of Congress known as the Cummings Amendment; that the only damage which plaintiff could recover would be the value of the lost or damaged goods at the place of destination, to-wit, New Orleans, Louisiana, at the time said shipments should have been delivered there.

Defendant admits that the shipments in question were damaged, but contends that plaintiff can only recover the cost price of the damaged or lost merchandise, plus such freight as was paid thereon, that is, the total replacement value which the merchandise would have had in the car at point of destination, if the contract of carriage had been properly performed. There is no dispute that this value totaled $1,074.35, the amount for which-the judge a quo rendered judgment in favor of plaintiff. Defendant contends that the judgment covers all possible damages which can be legally recovered, and therefore should be affirmed. Plaintiff, as appellant, seeks an amendment of the judgment so as to increase the amount allowed by $352.15, the amount of profiit which could have been realized as the resale value, that is to say, the price at which the plaintiff could have sold the goods at their reasonable wholesale cash value in New Orleans. Plaintiff bases their resale value upon the price obtained by it for similar goods sold in New Orleans at the time of the loss.

The sole question for determination is: “What is the proper measure of damages for the loss sustained?” That the shipments were interstate and were made under regulations found in the Cummings Amendment of March 4, 1915, is beyond dispute. That part of the Cummings Amendment which is pertinent and relevant to this case, reads as follows:

“And any such common carrier railroad or transportation company, so receiving "property for transportation, from a point in one state, territory or District of Columbia, to a point in another state or territory * * * shall be liable to the lawful holder of such receipt or bill of lading * * * for the full actual loss, damage, or injury, to such property caused by it, or by any such common carrier.”

Defendant admits that notwithstanding the stipulations printed in the bills of lading issued herein, and which provide that “the amount of any loss or damage for which any carrier is liable shall be computed upon the basis of the value of the property * * * at the place and time of shipment”, the ruling made in C. M. & St. P. R. R. vs. McCaull-Dinsmore Co., 253 U. S. 97, 98, upholding the Cummings Amendment, prevails, and that therefore it must be conceded that defendant is liable within the terms of the amendment, that is, “for the actual loss, damage, or injury to such property”. But plaintiff, in the instant case, contends for more than the full actual loss, damage, or injury to the property described in its» petition, and prays for not only the full value thereof, had the contract been performed, but for the profits which it would have realized if the the property had' been delivered and had been actually sold. It is argued on behalf of the plaintiff that this is exactly what was held in the McCaull-Dinsmore Company case, above cited. Our careful examination of that opinion does not lead us to such a conclusion. The effect of that decision —the Chief Justice dissenting—was to set aside a ruling by the Interstate Commerce Commission, said commission holding that the Cummings Amendment did not operate to invalidate the standard clause in bills of lading which limit liability to such values as obtained at the place and time of shipment rather than to those values shown to have existed—as under the Common Law—■ at place and time of delivery. The commodity involved in that case was a shipment of grain, with the natural result that the market value of the grain at the place where and at the time when delivery should have been made, was taken as the basis of settlement rather than that basis provided in the full bill of lading.

The market value at New Orleans, which plaintiff would now recover from the defendant, is one which plaintiff itself, as the exclusive wholesale dealer in the goods lost, would arbitrarily establish in resale made to local retailers.-

In Sutherland on Damages, 4th Edition, Vol. 4, p. 4178, Par. 1098, is the following:

“The retail price of property for sale is not the standard by which value is to be determined. Where a quantity of merchandise is sued for, the retail price would be unjust, for the merchant in fixing that price takes into consideration not only the first cost of the goods, but store rent, clerk hire, insurance and probable amount of bad debts, and adds to all of these a percentage or profit.
“The owner must be entitled to recover at such rate as he would have to pay in the nearest market where a like quantity could be bought to replace the property taken."

We find no difficulty in applying to the instant case the plain language found in .the Cummings Amendment, as above quoted. Ample authority, based upon the soundest reasoning, and responsive to every appreciation of justice and equity, impels us to adopt the contention of the defendant herein. In Silverman vs. St. Louis I. M. & S. Ry. Co., 51 La. Ann. 1786, 51 South. 447, it was held that the measure of recovery for goods damaged in transit was the difference between the value of the goods in their damaged state and their value at place of destination, had they been delivered in proper condition. In the present case, defendant would do as much, indeed more, by treating the goods as totally damaged and by offering their full value at place of destination, as though wholly undamaged. In the case just cited, plaintiff sought recovery not only of the cost price but ten per cent advance on values at time of shipment, also rent, clerk’s hire, and twenty-five per cent loss of profit on goods which he would have sold, and also personal expenses and loss of time. Affirming the judgment appealed from-and which denied such claims, the Supreme Court of this State, among other points observed, said:

“We do not understand that in case of loss or damage of part of a lot of assorted goods, the carrier is bound to purchase the whole consignment at the shipper’s price, with expected profits added.”

This is tantamont to what we are asked to do in the case now before us. Inasmuch as plaintiff is seeking to recover on its resale profits to the extent of thirty-seven per cent, it might be here noted that no special damages have been pleaded or proven, unless such proof is to be inferred from testimony on behalf of plaintiff to the effect that the undamaged portion of the shipments here involved was sold to unnamed parties at such prices.

In the light of the Cummings Amendment, the interstate contract of affreightment is simply one for indemnification to the holder of the bill of lading “for the full actual loss, damage, or injury to such property” as was lost or damaged in whole or in part. The goods in the present case being treated as wholly lost, the total damage or injury to them at the time and place at which they should have been delivered is such value or such price as the plaintiff would have to pay for similar goods at New Orleans, plaintiff being—as the facts show in this case—the sole agent for such goods at New Orleans. In other w'ords, what would have been plaintiff’s buying price, not selling price, of such goods, at New Orleans? The evidence establishes that there was ho wholesale buyer of such goods in New Orleans, except the plaintiff, who bought not at New Orleans, but at the point of shipment involved in this case. However, there are innumerable buyers of such goods in New Orleans, buying exclusively of plaintiff, and if plaintiff’s contention should here prevail, the effect would be to enlist defendant as an additional customer in plaintiff’s New Orleans trade. We cannot give such effect to the contract. There is no proof that the goods in question had been sold by plaintiff before or while in transit, or that they formed parts of any contracts which plaintiff was bound to fulfill upon due date of delivery at New Orleans. There is nothing to show that plaintiff had contracted for the resale of these goods upon expectation of their timely delivery by the defendant.

Only such damages should be allowed as were reasonably contemplated at the time of the contract, in the absence of fraud or bad faith.

Defendant relies, in support of its contention, upon the well considered ease of P. McCoy Fuel Co. vs. Illinois Central Railroad Co., 2 Series, 2 Fed. 287. Our examination of this authority, which we find fully applicable to the case at bar, states our appreciation of the law applicable to contracts of affreightment governed by the Cummings Amendment. In that case, defendants contracted to carry a certain carload of coal, weighing 88,700 pounds, from a point in Illinois to Minneapolis, Minn. On arrival at the place of delivery, it was found that 5,000 pounds of coal had been lost in transit. At the time, the value of the coal in carload lots in Minneapolis was $5.75 per ton, plus freight. The retail price of the same coal in Minneapolis was $9.70 per ton. Plaintiff was a coal dealer making purchases in carload lots from time to time, as necessity required, and had sufficient coal on hand for his needs until the arrival of the next carload of the same kind which should be purchased. The court held that plaintiff was only entitled to recover $5.75 per ton, plus freight. The opinion, in part, reads as follows:

“The basic thought in such case is that the plaintiff should be made whole. If he has sustained loss or damage he should be compensated by receipt of the proper equivalent in money.
/‘The contention, that plaintiff is entitled to recover the amount which he would be required to pay to replace the coal, which in this case would be the price at retail, is equivalent to a contention that the plaintiff is entitled to recover the amount for which, if he-had this lost coal, the same could be sold at retail. Reason and authority both are against recovery upon such a basis. This would involve a price which would include the price of unloading the coal from the car, reloading the same on trucks and wagons, hauling and delivering, insurance, collection, bad checks, overhead expenses, profits, and perhaps other items. Plaintiff has no right under the circumstances to sell missing coal to the defendant at any such price when none of these items are involved in the transaction.”

In supplemental brief, counsel for plaintiff calls the court’s attention to .the case— among other authorities of Berje vs. T. & P. R. R. Co., 37 La. Ann. 468. In that case the suit was for damages in delay in delivering cotton shipped from Shreveport and from several places in Texas. Plaintiff claimed the loss incurred in replacing 887 bales of cotton, and for expenses for re-classing, reweighing, the loss of interest on capital invested, and for the loss of market on 307 bales. These items were allowed and the Supreme Court, in affirming the judgment, noted that the claim was not for any injury to the cotton as delivered, but simply for delay in its transportation, and that the plaintiff was not seeking to recover hypothetical losses, but those actually incurred. The judgment .was predicated on the observation that the plaintiff had a right to expect his cotton at or near the fixed date; that his contracts with others were made on that expectation, and when disappointed, he had to go on the market and buy in order to replace that which defendant had contracted to deliver. The court particularly noted that the item was not for loss of profits but for an outlay of money, saying “the whole theory of damage is based on indemnity, and the indemnity here asked is of money expended in buying cotton which the plaintiff would not have had to buy if the defendant had delivered his cotton in a reasonable time”.

We are unable to see how the application of the above authority can be made to the case before us.

We are of the opinion that the judgment appealed from is correct, and should be affirmed.

It is therefore ordered that the judgment herein appealed from be and the same is hereby affirmed, at plaintiff’s cost in both courts.


text:
    No. 9023
    Orleans
    MRS. JAMES WITTENBERG, Appellant v. MRS. CATHERINE McGRATH, WIFE OF GEORGE H. DAVIS
    (October 5, 1925, Opinion and Decree.)
    (November 16, 1925, Rehearing Refused.)

      (Syllabus iy the Court.)

    1. Louisiana Digest—Brokers—Par. 15.
    A real estate agent who has failed in an attempt to effect a sale is not entitled to a commission on a sale made without the agent’s aid long afterwards by the owner to the person to whom the agent had tried but failed' to sell the property.
    Appeal from Civil District ¡Court, Hon. Percy Saint, Judge.
    This is a suit for a commission for the alleged sale of a house and ground.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. A. Parsons, of New Orleans, attorney for plaintiff, appellant.
    Dart, Kernan and Dart, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff, á real estate broker, claims a commission.

She alleged the following contract with the defendant:

“383 Walnut Street
“New Orleans, La., March 8th, 1920. “Mrs. James Wittenberg,
“710 Common Street,
“New Orleans, La.
“Dear Madam:
“Confirming our oral arrangement, I place my residence, 383 Walnut Street, New Orleans, La., exclusively in your hands until June 1st, 1920, to offer for private sale for my account.
“1st The real estate on which the house, garage and tea house are located is bounded by Walnut Street, Esther Street, Audubon Street and a line parallel to Esther Street located 150 feet South from the Esther Street property line;
“2nd It is understood that our minimum price of $85,000.00 cash to the purchaser is based on the unfurnished house, as delivered to us by the builders, including such builtin furniture as is actually a part of the house, but particularly excluding such property as the Hall Clock, Audubon Prints, etc., though attached to the house. “3rd Your total commission, including costs to me for your services or expenses, is to be three per cent (3%) of the selling price, amounting to $2,550.00 at the minimum selling price of $85,000.00. Payment is to be made to you upon the completion of the sale and upon receipt of this selling price. You are to receive no compensation and you relinquish all claims to any compensation or commission or reimbursement for any expenses if you have not completed the sale before June 1st, 1920. “4th If I sell the house during the life of this agreement, I will pay you a commission of three per cent (3%) or $2550.00 on a price of $85,000.00 and if I conclude no to sell to a bona fide purchaser • produced by you, I will pay you the said commission.
“5th This agreement is to become effective upon your written acceptance hereon noted, and is to become void on the 1st day of June, 1920.
“Very truly yours,
“(Signed) Katherine M. Davis,
“I approve and authorize the foregoing.
“(Signed) “George H. Davis. “Accepted: Mrs. James Wittenberg.”

The plaintiff alleged that she made every effort to sell the property during the term of the contract, but was unable to do so; that after the expiration of the contract, June 1, 1920, the defendant, verbally employed her to procure a purchaser for the property, without exclusive agency, but with the usual three per cent commission; that on July 11, 1921, plaintiff introduced Edward B. Benjamin to the property and showed him every part of it, and made every effort to induce him to buy the property and so notified the defendant; that plaintiff was later informed that the defendant had agreed to sell the property to Mr. E. B. Benjamin for the price of $60,-000.00; that the defendant informed plaintiff that this sale had been conducted by Miss Nicholls; that plaintiff notified the defendant that she had introduced Mr. Benjamin to the property and had used every effort to induce him to purchase it, and that she was entittled to the commission; she claims three per cent on $60,000 or $1800.00.

The defendant admitted signing the written contract mentioned above but alleged that the plaintiff did not procure the purchaser for the property, nor effect a sale within the period of the written contract; she admitted that the plaintiff had notified her that she had sought to interest E. B. Benjamin; she denied that sue had employed plaintiff after the expiration of her contract, but averred that she had advised real estate agents and plaintiff among them that her property was for sale; that on July 12, 1921, the plaintiff wrote that she had visited the property with Mr. Benjamin and that she would do her utmost to sell the property to him; that this was the only time that plaintiff made any reference to Benjamin; that on February 3, 1922, defendant agreed to sell a part of the property to E. B. Benjamin for $51,500; that the negotiations for the sale of the property were conducted by Miss Kitty Nicholls during a few days preceding February 3rd; that plaintiff bad nothing Whatever to do with said sale, which had no connection with the efforts of the plaintiff in July preceding; that all negotiations between plaintiff and Benjamin were off when Miss Nicholls undertook the sale; and when she alone induced him to buy the property.

There was judgment for the defendant dismissing plaintiff’s demand and she has appealed.

It is admitted that during the life of her contract from March 8, 1920, to June 1, 1920, the plaintiff procured no buyer, not even a prospect. After the expiration of the contract namely on July 11, 1921, plaintiff showed the property to Mr. Benjamin; no sale effected by her with him. On February 3, 1922, more than six months after her negotiations with Benjamin had ended, Miss Nicholls effected a sale of part of the property with the same Benjamin for one-third less than the price fixed in plaintiff’s contract.

The sole .question in the case is whether the plaintiff procured the purchaser, and whether her efforts in the matter were an element conducive to the sale subsequently-made, or whether the negotiations between the plaintiff and Benjamin in July, 192L were ended when he refused to buy, and whether the sale finally made by Miss Nicholls was the result of new negotiations initiated by her and successfully carried out through her efforts.

The judge of the District Court was of the opinion that the tentative efforts of the plaintiff in July, 1921, had nothing to do with the sale effected by Miss Nicholls in February, 1922, and so are we.

George H. Davis, the defendant’s husband testified that in July, 1921, he was in New York and never returned until the trial. of this case; that in that time he never saw the plaintiff and never heard of her until after the sale of the property in February, 1922; that in February, 1922, he received a letter from A. Kains, occupying his house, informing hiih that Miss Nicholls had interested Mr. Benjamin who offered $45,000.00 for 100 feet of the property; that he answered demanding $51,500.00; that he finally sold 165 feet front for tha°t price and wired his acceptance to Miss Nicholls; he represented his wife; he did not employ Miss Nicholls; she came to him. Plaintiff had no part in the deal, he had not been in touch with her for over six months, he was away in New York from June, 1921, to date.

Mrs. Edward B. Benjamin testified that she was married on October 19, 1921, that her husband had promised her a home as a Wedding present; that he had bought a lot and was about to build, the plans were made and bids were out; that Miss Nicholls called them up one day and asked them to look at a house on State Street, they had no serious idea of buying, they went over however and did not like the house and on their way home Miss Nicholls suggested looking at the Davis house; Mr. Benjamin said he had already seen it and had not considered it, but said it was an interesting house, and would like her to see it; so they went there and she liked it very much; they visited it several times and finally bought it. She does not know the plaintiff and never met her, and plaintiff had nothing to do in the purchase by them.

E. B. Benjamin corroborates the testimony of his wife. He says that in June, 1920, the plaintiff showed him the Davis property which he did not care to consider at that time. Later in December, 1921, the plaintiff again asked him if he would not consider the property and he said no, “but very definitely I informed her I was - not going to buy the Davis home”.

Miss Katherine E. Nicholls testified:

That she was not acquainted with Mr. and Mrs Benjamin; that she knew they w'ere looking for a house. * She tried to interest them in the Pugh house on Palmer Avenue, they did not like it, she persuaded them to visit the Davis house, she knew the price asked was $85,000 but she was informed it could be bought for $51,500; she had Mr. Kains to wire to Mr. Davis, then she communicated with him by wire and finally effected a sale, no one was associated with her in making the sale.

None of that testimony is contradicted by the plaintiff.

In Ford vs. Shaffer, 143 La. 635, 79 South. 172, the court said:

“A broker who has failed in an attempt to effect a sale is not entitled to a commission on a sale made without his aid long afterwards by the principal to the person to whom the broker had tried but failed to sell the property. Quoting Lewis vs. Manson, 132 La. 817, 61 South. 835; McWilliams vs. Soule, No. 8453, Ct. App. and 8734.
“So if the principal and the customer introduced by the broker cannot agree on the terms of a sale, and the broker or his customer drops the negotiations, or the principal withdraws his authorization, the broker is not entitled to a commission on a sale being subsequently made by the principal, acting either independently or through another broker. 9 C. J., p. 602.
“Where an agent fails to get his offer within the terms of his authorization and the purchaser afterwards buys the same piece of property on the same or less terms than those on which the first agent had authority to sell the chain of causation would be broken since the efforts of the first agent would have produced no result and his labors would not be the proximate, legal or procuring cause, and therefore he would not be entitled to any compensation-^-id note 62 (A)—see also (b).
“The law is undoubtedly well settled that where an agent sets on foot a sale of property which wholly fails, and after such failure, another agent steps in and makes the sale to the parties negotiated with by the first agent, if the first agent has shown his inability to make the sale and even though there is a possibility that the work of the first agent made some impression or had something to do with the sale, yet under such a state of facts, in legal contemplation, the first agent would not effect the sale and consequently would not be entitled to any compensation.—id p. 603 note 67 (a) 204 TJ. S. 240.
“(b) Thus if a rival broker sells the property at a lower price after the broker first authorized fails to sell it at the price proposed by the principal, no compensation is due to the one first authorized although the sale is made to his customer” id p. 603 (b).

The broker has not a vested interest in any sale that the owner may thereafter make to a man whom he introduced as a prospective purchaser. Ford vs. Shaffer, 143 La. 636, 79 South. 172.

In order to be entitled to a commission the broker must have ultimately been the procuring cause of the sale. Ford vs. Shaffer, 143. La. 636, 79 South. 172; Taylor vs. Jay, 119 La. 163, 43 South. 993; Taylor vs. Martin, 109 La. 137, 33 South. 112; Tessier Dig. p. 31, 15—Nos. 7797, 7901 Ct. App.

“If a broker attemps unsuccessfully to effect a sale of land or his proposed purchaser abandons the idea of buying, but he is afterwards induced to do so by the principal or by another person, without being in any way influenced by the broker, the latter is not entitled to any commission.” Junk vs. Golden Ranch Sugar and Cattle Co., 122 La. 794, 48 South. 267; Lewis vs. Manson, 133 La. 817, 61 South. 835; 9 C. J. 608—Note 89.

Judgment affirmed.


text:
    No. 9870
    Orleans
    VINCENT P. CADY, ET AL., v. NEW ORLEANS PUBLIC SERVICE, INC., Appellant
    (October 5, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Street and Interurban Railroads—Par. 34.
    In an action for personal injuries against a street railway company, plaintiff must prove in order to recover that the accident happened under circumstances involving the negligence of defendant.
    2. Louisiana Digest—Evidence—Par. 60, 352.
    When the evidence concerning the manner in which the accident happened is conflicting and doubtful there can be no recovery.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Civil District Court, Parish of Orleans, No. 152,400, Division “G”, Hon. Sam A. LeBlanc, Judge.
    This is a, suit for damages for personal injuries sustained by a minor child.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Prank S. Norman, of New Orleans, attorney for plaintiff, appellee.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellant.
   WESTERPIELD, J.

Plaintiffs, the father and mother of Albert Cady, a ten-year-old boy, sue the plaintiff Street Railway Company on behalf of their son for personal injuries sustained by him in the sum of $20,000.00 and in their own behalf for mental pain and suffering $5000.00, or a total of $25,000.00.

It is alleged that the child on May 4, 1923, desiring to board a street car of defendant company, signalled the motofman to stop at the lower side of Terpsichore and Prytania streets; that the motorman responded to the signal by slowing the speed of his car to four or five miles per hour and nodded his head as an invitation for the boy to board the car; that while the car was moving at this slow pace, the boy attempted to board the car by taking hold of the grab-handle with his right hand and placing his right foot on the step; that while the boy was in this position and in the act of raising his left foot from the ground, the speed of the car was suddenly increased, causing ' the boy to lose his hold on the grab-handle and throwing him with such force against the rear portion of the step as to fracture his skull and otherwise severely injure him.

It is also alleged that the defendant company was in the habit of permitting passengers to board its cars while in motion and that plaintiff’s son had himself on previous occasions boarded moving cars.

Defendant denied all charges of negligence and averred that plaintiff’s son, Albert Cady, was playing with other children on the sidewalk of Prytania street and that as the Prytania car of defendant neared the corner of Terpsichore and Prytania streets where the children were at play, the Cady boy ran out intending to catch on the step of the car, but stumbled and fell, striking the edge of the car step as he fell. Defendant denies that any signal was given the motorman or that answer or response was made by the motorman indicating in any way that he was aware of the boy’s intention to board the car and invited him to do so. It is also denied that there was any unusual slowing up of the car.

The case was tried by a jury which, by a vote of nine to three, returned a verdict in plaintiff’s favor for $11,000.00. Judgment was rendered accordingly and defendant has appealed.

If plaintiff’s son was injured in the manner claimed in the petition, he must recover, for we understand the rule to be as stated in Corpus Juris, Vol. X, p. 950:

“Where a street car slows down and then suddenly starts up again before it has fully stopped, the carrier will be liable for injury to a passenger resulting therefrom, if the passenger, while in the exercise of due care, has reason to believe that the slowing down is for the purpose of enabling him to get on board or to alight or the place is one where passengers should naturally be expected to get on board or alight.”
“Nor is it negligent to board a slowly moving electric car.”

Jones vs. Canal and Carondelet R. R. Co., 109 La. 213, 33 South. 200; Pitard vs. N. O. Ry. and Light Co., 120 La. 926, 45 South. 943.

“It is a matter of common observation that persons do every day get on and off from street cars while they are in motion under circumstances that would not in the estimation of a reasonable man be considered negligence.”

Finkeldaye vs. Cable Company, 114 Calif. 28, 43 Pac. 96.

“Although the act of boarding a car while in motion is always attended with some risks, the rules applicable to persons entering cars operated by steam are not usually applied with the same strictness to street railways. It is a general rule, established by numerous decisions, that if a person, who has the free use of his faculties and limbs, has given proper notice of his desire to be taken on, and the speed of the car is slackened in the usual manner, it is not negligence per se to attempt to get on while it is moving slowly, and that if a passenger is injured under such circumstances, the question of his contributory negligence is ordinarily one of fact for the jury.”

Booth on Street Railways, p. 336.

Albert Cady, the injured boy, testified that he had been in the habit of meeting his aunt, Mrs. Baker, every Friday night at the terminus of the Prytania Line on Camp and Canal streets, for the purpose of going .with her to a picture show or other place of amusement; that on the night of the accident (Friday, May 4, 1923, at 7:10 p. m.) he went to the corner of Terpsichore and Prytania streets, where he had been in the habit of boarding the Prytania car, for the purpose of meeting his aunt; that he arrived some fifteen minutes before car No. 372 of the Prytania line was due and, while waiting for this car, he was playing with several children on the corner. He explains that he was waiting for car No. 372 because he knew the motorman and conductor of this car by reason of his having often ridden with them before. He testifies further that as car No. 372 approached, he shouted to the children with whom he had been playing, “Watch me catch this car”, or, as other witnesses put it, “Watch me hop this car”, at the same time signaling with his hand to the motorman to stop; that the motorman nodded his head as a signal for him to get on the car as he had done on previous occasions and slowed up the car; that he attempted to board the car, grabbing the handle with his right hand and putting his foot on the step, when the car started forward, suddenly throwing him against the vestibule post, causing him to fall to the ground on his left side with his head resting on his arm and his head facing uptown; that he lay in this position until the blood flowed from his wound on his h'ead when he got up and ran some two blocks to his home and his mother. Mrs. Jones, another aunt of the boy, was with him just before the accident, standing on the street corner talking with him, and she remained in that position until after the accident. She testified substantially, as did the boy himself, concerning his. hailing the motorman, the slowing of the car, the boy’s effort to board it, its sudden acceleration, and consequent injury to the boy’s head. In other words, this witness completely corroborates the plaintiff’s theory of the accident. The case for plaintiff. mainly rests upon the testimony of these two witnesses.

On the other hand, defendant has introduced a letter admittedly signed by counsel for plaintiff in which demand is made for compensation for injuries sustained by Albert Cady by reason of “having been run into by a downtown Prytania street car at the corner of Prytania and Terpsichore streets”.

Another letter is introduced in evidence in which it is stated that the boy was run down by the car as he was crossing Prytania street. This second letter is unsigned, but the envelope in which the letter was enclosed bore the name, V. P. Cady, and the address, 1115 Terpsichore street, in the left-hand corner (the boy’s father’s name is Vincent P. Cady, and his address at the time of the receipt of the letter was 1115 Terpsichore street). The letter was registered. The letter reads as follows:

“New Orleans, August 3, 1923.
“Claim Adjuster,
“Care N. 0. Public Service Corp.,
“201 Baronne Street, “City.
“Dear Sir:
“You no doubt remember this accident that occurred on May 4, 1923, at 7:15 p. m. The injured, Albert Cady, while crossing Prytania street, was knocked down and seriously injured by the Prytania street car. My son suffered a permanent injury, namely, a fracture of the skull, which necessitated the removal of several bones by very delicate operations. He was attended at St. Rita’s Hospital and is still in a critical condition.
“I have interviewed several people who witnessed the accident and each one agrees with me that the accident was caused purely 'through the negligence and carelessness of the person operating the street car, and they are all willing to testify to this effect.
“The writer, Mr. Vincent P. Cady, 1115 Terpsichore street, has an idea that this case can be amicably adjusted and would like to be informed of your feelings in the matter.
“A prompt reply will be very much appreciated.
“Yours respectfully.”

Vincent P. Cady, testifying, denies any knowledge of the letter, but the letter was sent by someone and no explanation of this fact is offered. Even though not sent by the father and without his knowledge as he claims, it could hardly have been written by anyone other than a member of the injured boy’s family directly or indirectly. At all events, the circumstantial account of the boy’s injuries as narrated in the letter could only have been obtained from a source very close to home. A. T. Whitaker, an employee of defendant, testified that Vincent P. Cady, the boy’s father, told him on the day after the accident that his boy declared as he came home just after the accident with his head bleeding that he had stumbled and a street car hit him.

W. H. Reynaud, Jr., claim agent of defendant, testified that in discussing the accident with him, Mr. Cady seemed to think his boy was hurt while crossing the street.

Robert E. Leithma, chief clerk of defendant, testified that Mr. Cady told him that his son was hurt while walking across Prytania street by the car. crossing down Prytania street, knocking him down.

Dr. P. L. Thibaut testified that the injured boy told him on the day after the accident that he was walking across the street and stumbled on' some bricks, fell and was struck by the street car.

Neil Brown, Coralie Nelson, Alfreda Nelson, Elena Delanor, the children with whom Albert Cady had been .playing just before the accident, all tell substantially the same story. They say in substance that Albert was playing with them and as the car approached he exclaimed, “Watch me hop that car”, and ran from the sidewalk toward the moving car and was injured in the attempt to “hop” the car; that he had “hopped” another car that same evening and that the car had not slowed down but was moving fast.

R. J. Dorothy, a bookkeeper for the Alden Mills, and a passenger who was standing on the back platform of the car which injured Albert Cady at the time of the accident, testifies that the car was moving 12 or 15 miles per hour as it crossed Terpsichore street where the accident occurred. He saw a boy lying in the street about 75 feet away from the car.

The mbtorman denies having seen the boy on the crossing or to have nodded to him or to have slowed down as an invitation to the boy to board the car.

With the record before us we' cannot give our approval of the verdict °of the jury and the judgment based thereon. We fully realize that the findings of a jury as well as of a trial court upon questions of fact should not, under familiar principles often announced by appellate courts, be lightly considered or set aside unless manifestly erroneous. We also realize that in setting aside the verdict of a jury we are destroying the result of the labors of twelve men who have contributed days and perhaps weeks of their time taken from some gainful occupation by which they maintain themselves and their families and given to the public at the behest of the state. Nevertheless, it is plainly our duty to disregard a verdict and judgment in a ease like the present, which, as it seems to us, is clearly contrary to the evidence.

The use of a jury in civil cases in Louisiana should be discontinued. Perhaps under the Common Law where facts found by a jury cannot be re-examined except under the rules of the Common Law, which means that the case must be remanded when the appellate court does not agree with the jury, there is some reason for a jury in civil matters, though it would appear advisable to amend the Common Law by statute, but in Louisiana where on appeal the case is disposed of and such judgment rendered as in the opinion of the appellate court should have been rendered in the first instance, there does not seem to be any justification for the retention of the jury in civil matters. The waste of the juror’s time and the irritation of his feelings might be avoided without sacrificing anything, which makes for a better administration of civil justice.

It is interesting to observe that England, the natural parent of the Common Law, takes more liberties with its offspring than America, the foster parent. For in England, the archaic character of the trial by jury in civil causes has long been recognized and methods of doubtful propriety resorted to to mitigate the evil. In the Law Quarterly Review of July, 1891, an English periodical, there appears the following :

“To not only set aside a verdict, but at once enter a judgment for the other side, seems in these days of long-drawn-out litigation a daring mode of summary jurisdiction. Lord Halsbury in Toulmin vs. Miller (12 Ap. Cas. 746), had strong doubts about such a proceeding; but as the Court of Appeal is satisfied that it is invested with the power, its action undoubtedly saves a vast amount of trouble and expense. Trial by jury in civil cases, for whatever reason, is on the wane. The rules of court which reflect judicial experience began it by making trial by judge without a jury the normal mode of trial requiring the party who wants a jury to ask for one. (Jenkins vs. Bushby, 91 Ch. (C. A.) 484). The frequent disagreement of juries has helped it on. The fact is not susceptible of doubt. Even in Queen’s Bench Division non-jury actions outnumber the jury actions. * * * Ordeal, combat, jury have succeeded one another as tests of truth. Just now the wise and upright judge is in favor. The twentieth century may see a newspaper plebescite the approved mode of trial.”

Perhaps the jury as a fact-finding instrument of justice (our juries interpret the law as well) will eventually be consigned to the legal lumber room, there to remain in a state of inocuous desuetude, not dead, but dormant, until some ferret of the law invokes his ancient constitutional right, whereupon discovering no jewel in the toad’s head the jury in civil causes will be abolished.

Such was the experience in England with that other method of fact-finding and truth discovery known as the trial by battle which was introduced at the time of the Norman conquest and had long fallen into disuse, when in 1811 its discovery and invocation led to its abandonment as a means of discovering hidden truths in legal controversy in 1819.

The judgment appealed from is reversed and it is now ordered that there be judgment for defendant dismissing plaintiffs’ suit at their cost.


text:
    No. 10,117
    Orleans
    H. F. FOSTER, Appellant v. JOSEPH L. QUEALY
    (November 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    I. Louisiana Digest—Obligations—Par. 87. 90.
    Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances 'that naturally imply a consent to such contract.
    Appeal from the First City Court, Hon. Wm. Alexander Bahns, Judge.
    This is a suit to collect four promissory notes. The defendant denied any indebtedness to plaintiff. There was judgment in favor of plaintiff subject to a judgment granting defendant certain credits against the plaintiff.
    Plaintiff appealed.
    Judgment amended and affirmed.
    Francis P. Burns, of New Orleans, attorney for plaintiff, appellant.
    J.J. McCloskey, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit on fouipromissory notes.

Plaintiff alleged that he was holder of four promissory notes made by the defendant to the order of plaintiff; that three of said notes were dated February 24, 1921, and were for $67.50 each, payable respectively at 30, 60 and 90 days after date with eight per cent per annum interest from date till paid, and twenty per cent attorney’s fees on principal and interest; and the fourth note was dated February 27, 1922, for the sum of $27.50 payable on demand with eight per cent per annum interest from date till paid and twenty per cent attorney’s fees on principal and interest.

Plaintiff prayed for judgment for $202.50 with eight per cent per annum interest from February 24, 1921, till paid, and for twenty-seven 50/100 dollars with eight per cent per annum interest from February 27, 1922, till paid, together with twenty per cent attorney’s fees on the capital and interest of said two sums, and all costs of suit.

The defendant denied any indebtedness to plaintiff; he admitted making the four notes sued on, but denied any liability thereon to plaintiff “for the reason that the said notes have been paid out of commissions or premiums of insurance paid to the plaintiff by Joseph A. McMahon and Co., from which said premium of insurance defendant was to receive 50 per cent of the amount thereof, and which said payment was made to the plaintiff by defendant by crediting defendant’s indebtedness to plaintiff on said note's herein sued upon”.

There was judgment in favor of plaintiff for $230, and in favor of defendant against the plaintiff for $179.20 to be deducted from the judgment in favor of plaintiff.

The plaintiff has appealed.

The agreement between the plaintiff and the defendant is evidenced by the following document:

“New Orleans, La., October 11th, 1917. “Mr. H. F. Foster, City.
“Dear Sir:
“In consideration of your advancing me the sum of $300 I do hereby agree to the following:
“I am to write all business that necessitates my calling upon the agent exclusively with you. All business that I may write personally will be written and credited as follows:
“The commission on this business is to be credited by you on the above amount advanced me. The business that I write with you personally we are to split fifty-fifty and one-half of my commission on this business is to be paid by me to you and credited on the above advanced amount. I am also to place with you all the fire insurance, automobile, liability and workman’s compensation on the basis of fifty-fifty. My fifty to be retained by you and credited to the above advanced amount. This agreement in consideration of the above advance is to run from one year from date.
“Yours very truly,
“(Signed) Joseph L. Quealey.”

The plaintiff contends that the above agreement was, as stated therein, for one year only, and was never renewed or continued, while the defendant asserts that the agreement continued for the succeeding years until the year 1923, when he and the plaintiff ceased to be friends. There is no evidence of any express agreement to that effect after the expiration of the contract on October 18, 1918. But the .conduct of both parties shows that there was an implied understanding to that effect.

The testimony of both the plaintiff and of the defendant is to the effect that subsequent to the issuances of the note of $300 and for several years thereafter, they had several adjustments of the debt, which was each time reduced, by credits arising from defendant’s share in the commissions and new notes issued to represent the balance due, until the note of $300 was reduced to $202.50 for which the three notes sued on were issued in May, 1921. Both plaintiff and defendant testify that defendant never paid plaintiff any money. The credit on the original indebtedness were therefore exclusively as many commissions to which plaintiff acknowledged defendant was entitled. These credits were for years subsequent to the expiration of the contract, namely for 1918, 1919 and 1920. It was n acknowledgment on the part of the plaintiff that defendant was entitled to these credits after the year 1918. If defendant was entitled to a credit for the years 1918, 1919 and 1920, for the same reason he was entitled to a credit for commissions subsequent to these years in 1921 and 1922, until the plaintiff and defendant fell out. All the circumstances surrounding the origin of the agreement between the plaintiff and the defendant prove that he was so entitled.

Defendant was an accountant in the employ of McMahon; he knew the plaintiff who was in the insurance business; he procured from the plaintiff a promise to divide commissions on policies he might secure for him; he solicited McMahon and induced them to give their insurance to the plaintiff'; on that assurance plaintiff loaned him $300 which1'were to be repaid by his share in the commissions which plaintiff was to earn; plaintiff knew that the defendant’s share in those commissions would not be sufficient to extinguish the debt in one year; at the end of the year 1917, and during the year 1918, McMahon continued to insure with Foster and so during 1919, 1920 and 1921, and 1922; and, at intervals during three of those years adjustments were made of the note of $300 between the plaintiff and defendant by crediting the debt with commissions earned during those years, when at last the amount of commissions reduced the note to $202.50.

There was nothing said, then, that the agreement should not continue, and McMahon continued to give the plaintiff his insurance with a view of assisting the defendant..

R. J. Coburn, fully confirms this conclusion. He waá Vice-President and Treasurer of McMahon in 1917, and defendant was the bookkeeper. He says:

“We gave the business solely to Mr. Foster through Mr. Quealy * * * That is why we gave the business to Foster., Mr. Quealy used to keep hooks for P. J. McMahon and Co., and we only gave the business to Mr. Foster because Mr. Quealy got a commission out of it * * * only through Mr. Quealy’s solicitation * * * he insisted on giving it to Mr. Foster to get a commission * * * if Quealy had not gotten commissions he would not have given the business to Foster * * * he gave him the business for the years 1917 and 1923, he ceased giving the business to Foster in 1923 because Quealy asked them to take it away as he was not getting any more commissions.”

We remain satisfied therefore that defendant was entitled to a share in the commissions for the year 1921 and 1922. C. C. 1816 ^Actions without words either written or spoken, are presumptive evidence of a contract, when they áre done under circumstances that naturally imply a consent to such contract^

He is not entitled to a share in the commissions of the year 1920, amounting to $173.23 for the reason that an adjustment or settlement was made in February, 1921,. Which is presumed to have included the commissions earned in 1920 as there is no allegation or proof of error in that settlement.

The sole question remaining is the amount of the commissions to which defendant is entitled.

The evidence is that the commission earned, by plaintiff from McMahon during 1921 amounted to______ ____________________________$156.15 and during 1922 to__________________________________ 29.03

making a total of----------------------------$185.18

entitling defendant to a credit of one-half or ____________________________________________92.59.

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

It is ordered that the defendant Joseph L. Quealy be condemned to pay to the plaintiff Horace F. Foster the sum of One Hundred and Thirty-seven 41/100 Dollars with eight per cent per annum interest from February 24, 1921, till paid together with twenty per cent attorney’s fees on the principal and interest, the defendant to pay the costs of the District Court and the plaintiff to pay the costs of appeal.

Judgment amended and affirmed.


text:
    No. 10,220
    Orleans
    WM. CLARK, JR., Appellant, vs. CHARLES HUDSON
    (January 4, 1926, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Quasi Contracts— Par. 12; Warehouses—Par. 9.
    The plaintiff cannot recover for storage on a quantum meruit a larger amount than the value of the thing on storage.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.

      This is' a suit for the price of wood sold and delivered and for storage.
    There was judgment rejecting plaintiff’s demand against the defendant, and in favor of the defendant against the plaintiff.
    Plaintiff appealed.
    Judgment against plaintiff reversed and judgment on defendant’s reconventional demand amended.
    E. E. Talbot, Spencer, Gidiere and Phelps of New Orleans, attorneys for plaintiff, appellant.
    Jules Grasser, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of wood sold and delivered and for storage.

The plaintiff alleged that between October 17 and November 9, 1921, he sold and delivered to the defendant certain wood amounting to $145 according to itemized statement annexed which defendant refused to pay.

The statement contains the following items:

October 17: 11% cords pine knots $ 69.00
Subject to a credit of____________________________ 8.50
$ 60.50
Nov. 9th: 13 cords pine wood at $6.50 ........................................................ 84.50
$145.00

Defendant filed a general denial and averred: That plaintiff called on him and stated that he had a carload of pine knots at the railroad yard; that demurrage was due on same; that defendant, at the request of the plaintiff, hauled the knots for account of plaintiff to a yard he owned, where the same remained piled for more than eighteen months; that defendant vacated the yard where the knots were piled, and a Mr. Lindsley took possession of the same; that Lindsley notified the plaintiff to move the knots; that the knots remained stored for account of plaintiff in the yard during the ownership of Lindsley; that defendant never purchased the pine knots and never accepted the same; that at a later date defendant purchased from the plaintiff a load of wood for $84.50; that there was due to defendant five dollars per month as storage on the pine knots for eighteen months or $90, and the further sum of $12 for twelve loads of pine knots, hauled from the railroad, making $102 in all, thus leaving a balance of $18 in favor of defendant.

Defendant prayed for dismissal of plaintiff’s suit and for judgment in his favor for $18.

The three questions therefore are: 1st did defendant purchase the eleven and a half cords of pine knots; and if he did not, does plaintiff owe him $12 for hauling them to defendant’s lot, and $90 for storage of the same.

There was judgment rejecting plaintiff’s demand against-the defendant, and in favor of the defendant against the plaintiff for eighteen dollars.

Plaintiff has appealed.

The burden of proof was upon the plaintiff to establish' that he had sold the pine knots to the defendant.

He says he did. But defendant denies it. He is corroborated by David Dieg, a disinterested witness who hauled the knots for Hudson and who says that he was present at a discussion between Hudson and Clark about the hauling of some pine wood. He testifies:

“This man, Mr. Clark, had two carloads of pine knots at the Northeastern Railroad, the demurrage was eating it and increasing every day. I told Mr. Hudson he could not do anything with the pine knots and Mr. Hudson told Mr. Clark that he did not want to buy them; so Mr. Clark came back and said, well, you have plenty of room here, I will pay for the hauling and storing and Hudson asked me if I could haul them.”

Joseph Liquor who bought the Hudson lots, said he notified Clark to remove the knots; Clark asked him if he would not buy them, he offered them to him for $20; Clark did not tell him that the knots belonged to Hudson. Liquor gave some of the knots away, and people stole some, there are about three cords left.

There are eight letters in the record addressed by the plaintiff to the defendant, which remind the defendant of his indebtedness to the plaintiff on account of “wood”. But as plaintiff claims on two counts: one for pine knots and one for wood; it is not clear to what count plaintiff referred. Besides, defendant swears that he is outside of the letter-carrier’s limits and 'that he never received any of those letters and therefore did not answer them.

We think the preponderance of the evidence is in favor of defendant, and that plaintiff has failed to prove that he sold the knots to defendant.

2nd We -are. also of the opinion that the plaintiff owes the defendant $12 for hauling the knots.

3rd We are also of the opinion that the defendant is entitled to a reasonable amount for storage of the knots. The defendant claims 18 months at $5 per month or $90. But we do not think that the defendant can claim a larger amount for storage than the value of the knots themselves. The amount claimed as their value is $60.50, which together with $12, makes $72.50. The defendant admits owing $84.50 for the wood. This leaves him indebted to plaintiff for $12.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment in favor of plaintiff William L. Clark, Jr., condemning the defendant Charles Hudson to pay him Eighty-four 50/100 dollars with five per cent per annum interest from November 9, 1921, until paid.

It is further ordered that there be judgment in favor of the defendant Charles Hudson condemning the plaintiff William L. Clark, Jr., to pay him Seventy-twó 50/100 Dollars with five per cent per annum interest from November 9, 1921, till paid.

It is further ordered that the defendant Charles Hudson pay all the costs of both courts.

Judgment reversed.