author: ODOM, J. CARVER, J.

text:
    No. 2233
    Second Circuit Appeal
    JAMES G. DAVIS, DIRECTOR GENERAL OF RAILROADS OF THE UNITED STATES, v. SELIG & BAUGHMAN HARDWARE COMPANY, INCORPORATED
    (May 9, 1925, Opinion and Decree.)
    (June 23, 1925, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Laws—Par. 70; Carriers of Passengers and Goods — Par. 160; Prescription — Par. 3, 5, 7.
    Section 424 of the Transportation Act, 41 Federal Statutes 492 applies only to common carriers apart from their operation under Federal control and therefore will not act as prescription against a claim of the Director General of Railroads for the balance of a freight charge.

      2. Louisiana Digest — Prescription—Par. 3, 5, 7.
    The two-year prescription provided by Act 223 of 1914 of Louisiana has no application to a suit by the Director General of Railroads for a balance due on freight charges.
    3. Louisiana Digest — Estoppel—Par. 22, 26.
    The defendant in a suit by a Railroad or Director General of Railroads to collect a balance due on a freight charge cannot 'successfully invoke the principle- of estoppel against 'the right to collect the legal rate.
    4. Louisiana Digest — Evidence—Par. 182.
    Section 16 (L) of the Interstate Commerce Commission Act, Volume 4, Federal Statutes Annotated, 2nd edition, page 488 makes schedules of rates on file with the Interstate Commerce Commission certified to as correct by the Secretary of the Interstate Commerce Commission under the Commission seal as prima facie evidence with like effect as to the original in all judicial proceedings.
    5. Louisiana Digest — Judgment—Par. 11.
    Amount of war tax not proven in court cannot be allowed plaintiff.
    ON APPLICATION FOR A REHEARING.
    6. Louisiana Digest — Costs and Fees — Par. 50.
    Where the decree of tlie Court of Appeal reduced • the judgment of the lower court by a very minor amount the costs of appeal will still be paid by the appellee.
    7. Louisiana Digest — Evidence—Par. 13.
    The proper war tax to be applied to a charge for freight is a matter of law and needed no proof.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. H. E. Dawkins, Special Judge.
    This is a suit brought by the Director General of Railroads for the balance of a freight charge which was erroneously computed by the agent. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    H. G.- Fields, of Farmerville, Hudson, Potts, Bernstein and' Sholars, of Monroe, attorneys for plaintiff, appellee.
    Elder, Thompson and Digby, of Ruston, attorneys for defendant, appellant.'
   ODOM, J.

On February 13, 1918,’ .Selig & Baughman Hardware Company, Incorporated, the defendant, had a carload of wagons shipped to it at Farmerville, Louisiana, from South Bend, Indiana.

The shipment arrived . at Farmerville over a branch of the Missouri Pacific Railroad Company March 5, 1918,' and was delivered to the defendant on the same day.

Before or at the time the shipment was delivered to defendant it paid the freight charges of $42.38, which was' the full amount claimed to be due by the agent of the railroad company. ■

It subsequently developed ' that the railroad company agent had made an error in computing the amount of the freight charges and that instead of the amount being $42.38 the correct amount was $165.00, or $122.62 more than the amount defendant paid.

At the time of the shipment the Missouri Pacific Railroad Company as well as its subsidiary lines was under Federal control and was being operated by the Director General of Railroads.

This suit is by the Director General to recover the undercharge, plus $3.74 war tax.

As stated, the shipment was made on 'February 13, 1918, and arrived at Farmer-ville and was delivered to defendant on March 5, 1918.

No demand was made on defendant to pay the additional amount of freight due until about three years later.

This suit was filed on March 3, 1923, just two days less than five years from the date of the shipment.

It is not disputed, as we understand counsel for defendant, that the correct amount of freight due on this .shipment was $165.00, and the testimony shows that the only reason that this amount was not paid by defendant is that the agent of tbe Missouri Pacific Railroad Company, the delivering carrier, made an error, in computing the freight. Defendant paid the amount. demanded by the agent. And . we understand that a carrier’s right under the law to .recover the correct amount of freight where an error of this kind is made is conceded.

But defendant resists the payment of the amount demanded in this case on three grounds,, set out by counsel in his brief as follows:

“First, that plaintiff’s cause of action, if any he had, is barred by the prescription of three years as contained in Transportation Act Section 424 (41 Statutes 492) and the prescription of two years as set forth in Act 223 of the Legislature of Louisiana for thq year 1914.”
“Second, by equitable estoppel; and, Third, by the failure of the plaintiff to make out 'its case in the trial court by competent -evidence.”

On the question of prescription, counsel quotes Section 424 of the Federal Transportation Act as follows:

“All actions at law by carrier subject to this act for the recovery of their charges, or any part thereof ’Shall be begun within three years from the time the cause of action accrues, and not after.”

The United States Supreme Court, with Justice. Sutherland as its organ, said, in the case of Dupont De Nemours & Co. vs. James C. Davis, Director General of Railroads, 264 U. S. 456 (68 Law. Ed. 788):

“Moneys and other property derived from the operation of carriers during Federal control., as we have seen are the property of the United States. An action by the the ' Director General to recover on a liability arising out of such control is an action on behalf of the United States in its governmental capacity and therefore is subject to no time limitation in the absence' of congressional enactment clearly imposing it.”

And in the same ease the court concluded its opinion as follows:

“The foregoing analysis of the act of congress veiwed in the light of the principles just stated demonstrates that section 424 (of the Transportation Act) has no application to an action of the kind here involved but applies to common carriers apart from their operation under Federal control and we so hold.”

This case involving the identical point raised by counsel for defendant in the case at bar. This decision was rendered by the court in October, 1923, and is the .last word of the highest court in the land on this subject which we have been able to find.

See, also, the following decisions.

In re: Bibner Oil Co. 264 Fed. 668.

Chesapeake & Delaware Canal Co vs. U. S. 223 . Fed. 926.

State of Iowa vs. Carr, 191 Fed 257.

Our Act 223 of 1914 provides that actions of this kind shall be brought within two years; but a state statute of limitation cannot avail in a case of this kind.

See: City of N. O. vs. Salmen B. & L. Co., 135 La. 828, 66 South. 237.

On the question of estoppel, pleaded by defendant, we find that this identical question has been disposed of by the Supreme Court of the United States in the case of Railway Co. vs. Fink, 250 U. S. 579, as follows:

“Nor can the defendant in error successfully invoke the principle of estoppel against the right to collect the legal rate. Estoppel could not become the means of successfully avoiding the requirement of the act as to equal rates, in violation of the provisions of the statute.”

Citing, Railroad Company vs. York & Whitney, 215 Mass. 36, 102 N. E. 366.

On the question of admissibility of evidence, we find that in order to show the correct freight rate from South Bend, Indiana, to Farmeryille, Louisiana, plaintiif offered in evidence certain extracts from schedules of rates on file with the Interstate Commerce Commission, certified to as correct by the Secretary of the Interstate Commerce Commission under the Commission’s seal. Defendant objected to the admission of these documents for the reason that they are res inter alois acta, and hearsay: and he strenuously insists that in view of the fact that defendant had no opportunity to interrogate the Secretary of the Interstate Commerce Commission his evidence in the form in which it is offered, is inadmissible and not binding on it.

Section 16 (L) of the Interstate Commerce Act, volume 4 Federal Statutes Annotated, 2nd edition, page 488, reads as follows:

“The copies of schedules and classifications and tariffs of rates, fares and charges,of all contracts, agreements and arrangements between common carriers filed with the Commission as herein provided, and the statistics, tables and figures contained in the annual or other reports of carriers made to this Commission as required under the provisions of this act shall be preserved as public records in the custody of t*¿e Secretary of this Commission and shall be received as prima facie ■ evidence of what they purport to be for the purpose of investigation by the Commission, and in all judicial proceedings; and the copies of the extracts from any of the said schedules, classifications, tariffs, contracts, agreements, arrangements or reports ‘made public records as foresaid, certified by the Secretary under ■ the Commission’s seal, shall be received in evidence with like effect as the originals.”

And in the case of Hahish vs. U. S. 227 Fed. 584, it was held that the above provision is not limited to proceedings before the Interstate Commerce Commission and that “all judicial proceedings” should be construed without exception.

It is not contended that the schedules offered in evidence did not set forth the correct freight rates, from South Bend, Indiana, the shipping point, to Farmer-ville, Louisiana, the place of delivery; but the objection was made that the documents were not admissible in evidence.

The act above cited and quoted and the decision of the United States Supreme Court definitely settle the question against the contention of the defendant.

We therefore hold that neither the plea of prescription nor estoppel is good, and further hold that the evidence offered by plaintiff to establish the correct freight rates was admissible and the defendant liable.

But the court made an error in the amount of the judgment. The correct amount of freight was ■ $165.00. Defendant paid $42.38, leaving a balance of $122.62. The lower court gave judgment for $124.73. We are satisfied that this error in the judgment is due to the fact that plaintiff in his petition alleged that the defendant paid only $40.27, whereas it paid $42.38.

The court also allowed war tax amounting to $3.74. This item was not proved. Mr. Whittiker, the agent for the railroad company testified, that he thought the war tax was 3%, although he was not certain. He said there were schedules posted showing the correct amount but these schedules were not offered in evidence. This item not being proved should not have been allowed.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows: It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, James G. Davis, Director General of Railroads of the United States, and against defendant Selig & Baughman Hardware Company, Incorporated, in the full sum of one hundred twenty-two and 62/100 dollars together with legal interest thereon from judicial demand, and all costs of this suit.

ON APPLICATION FOR REHEARING

CARVER, J.

Appellant applies for a rehearing on the sole ground that our decree having reduced the judgment of the lower court should have carried costs of appeal.

The reduction was only $3.74, amount of a war tax claimed by plaintiff and allowed by the lower court but disallowed in this court on the ground that the witness whose testimony was relied on to prove the claim did not testify positively what the amount of the tax was but only that he thought it was* 3%.

We think the 'maxim cle minimis noncurrat less would apply; but there is also a better ground for rejecting the application for rehearing.

The bill actually paid by appellant was $40.27, on which the war tax was figured $2.11, or, say, .5% of the freight. The proper tax was a matter of law and needed no proof. It was evidently more than $3.74 on a bill of $165.00

The plaintiff, though, does not ask any rehearing so as to claim allowance of this item.

We think our decision does no injustice to defendant.

Rehearing refused.


source: Caselaw Access Project

author: CARVER, J.

license: Public Domain

text:
    No. 2259
    Second Circuit Appeal
    BANK OF EUDORA v. A. EDGAR CROWE
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Bills and Notes — Par. 127, 130.
    Under the Negotiable Instrument Law, Act 64 of 1904,' Sections 52 and 57, the holder of a note in due course holds the instrument free from any defect from prior parties and free from defenses of prior parties among themselves and may enforce payment. Therefore a holder in due course, who had purchased the note before maturity in good faith and for a valuable consideration can recover from the maker regardless of the failure of consideration which had not been transmitted to the holder.
    2. Louisiana Digest — Bills and Notes — Par. 218, 220.
    Under the Negotiable “Instrument Law, Act No. 64 of 1904, Section 59, every holder is deemed prima facie to be a holder in due course. Therefore, where the record contains no proof that the plaintiff, holder of a note purchased before maturity knew or had reason to believe that the consideration was defective or lacking, he can recover from the maker.
    3. Louisiana Digest — Bills and Notes — Par. 77, 127.
    The fact that the notes were paraphed by a notary to identify them with the act of sale which act showed the consideration or lack thereof of the notes, did not affect the rights of a holder of one of the notes of the series purchased before maturity in good faith.
    4. Louisiana Digest — Bills and Notes — Par. 127.
    There is no statute law in Louisiana making all notes of a .series due on failure to pay one of them. Therefore the purchaser in good faith of one of a series of notes before maturity, although a prior note of the same series was due and unpaid, will be considered a holder in due course and can recover from the maker regardless of the failure of consideration.
    5. Louisiana Digest — Bills and Notes — Par. 127, 130.
    Where the danger of eviction from the land the purchase of which constituted the consideration of the notes in question had not been made known to the plaintiff at the time he acquired the notes before maturity in good faith and for value, he will be considered 'a holder in due course and therefore, can recover from the maker regardless of the failure of consideration.
    6. Louisiana Digest — Appeal—Par. 588.
    Where there is no motion in the record asking for an amendment of the judgment a request of plaintiff’s council in his brief cannot be considered.
    Appeal from Seventh Judicial District Court of Louisiana, Parish of West Carroll, Hon. John R: McIntosh, Judge.
    This is a suit in which the plaintiff seeks to recover the amount of three notes executed by the defendant payable to his own order and by him endorsed. There was judgment for plaintiff on two notes which plaintiff acquired before maturity and judgment for defendant on the note which plaintiff acquired after maturity. Defendant appealed.
    Judgment affirmed.
    D. J. Anders, of Oak Grove, attorney for plaintiff, appellee.
    R. V. Reeves, of Oak Grove, ■ attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues to recover the amount of three notes executed by defendant on November 7, 1917, all payable to his own order and by him endorsed in blank, as follows:

One due December 1, 1920, for $164.89.

One due December 1. 1921, for $151.21, and

One due December 1, 1922, for $141.63; besides interest and attorney’s fees on all three notes.

The notes were originally secured by mortgage on certain land, but by agreement between the plaintiff and defendant the mortgage was released in order to enable defendant to obtain a loan from the Federal Land Bank and the sum was deposited in the Bank of Oak Grove to the credit of the Clerk of Court to respond to • the judgment.

The defense is, failure of consideration.

This defense was sustained as to the note due December 1, 1920, which plaintiff acquired after maturity; but judgment went against defendant on the other two, which plaintiff acquired before maturity.

Defendant appealed; dnd plaintiff’s counsel, in his brief, asks that the judgment' of the lower court be amended by giving it judgment for all three .notes.

We do not find in the record, though, any motion asking such amendment, nor do we find in the minutes any notation of such motion; so the request cannot be considered.

See Morris vs. Cain, 39 La. Ann. 712, 1 South. 797, 2 South. 418, and cases therein cited.

On May 26, 1917, defendant bought from one R. J. Walker a certain tract of land for $9036.00, wholly on credit, giving his notes for the price, as follows:

One for $486.00, due December 1, 1917.

One for $686.00, due December 1, 1918.

One for $768.00, due December 1, 1919.

One for $841.00, due December 1, 1920.

One for $905.00, due December 1, 1921.

One for $860.00, due December 1, 1922.

One for $815.00, due December 1, 1923.

One for $770.00, due December 1, 1924.

One for $725.00, due December 1, 1925,

and

One for $2180.00, due December 1, 1926.

On November 7, 1917, defendant sold to Charles Little a part of the land for something less than the amount of the notes given to Walker, all of which, though, Little assumed in the deed. The difference between the purchase price which Little was to pay and the amount of the notes held by Walker was adjusted by defendant agreeing to pay part of the debt due by Walker, as follows:

On the note due December 1, 1918, $188.26.

On the note due December 1. 1919, • $176.57.

On the note due December 1, 1920, $164.89.

On the note due December 1, 1921, $153.21, and

On the note due December 1, 1922, $154.63.

Instead of merely providing that, as between defendant and Little, defendant should pay these amounts on the notes held by Walker, notes for said amounts, due at said times, were executed by defendant, payable to his own order, endorsed by him in blank and secured by mortgage on certain property, which notes were by the Notary paraphed to indentify them with the act and were then delivered to Little.

Little paid the notes held by Walker, maturing December 1, 1917, December 1, 1918, and December 1, 1919, and defendant paid his notes maturing in 1918 and 1919.

Little defaulted as to the note held by Walker, due December 1, 1920, and on December 31, 1920, pledged the three notes sued on to the plaintiff.

Little paid nothing more on the notes held by Walker who, in 1923, foreclosed on the seven remaining unpaid and had the property sold at sheriff’s sale.

The, price realized at the sale left an amount due by Little much larger than 'the amount of the notes sued on herein.

On the trial defendant offered parol testimony to show that by agreement with Little he was not to pay • the notes given by him unless Little paid the notes held by Walker.

We deem it unnecessary to pass on this question, because we think the act of sale itself .shows that Little’s assumpsit was the consideration not only for the land sold by defendant but also for the notes given by him to Little, to which plaintiff objected.

Little’s failure to pay the note held by Walker dué December I, 1920, was in .our opinion, a failure. of the consideration ■which defendant could plead against him asi a defense to the notes sued on herein; but as to the two- unmatured notes, this equity could) not, in our opinion, defeat a holder in due course.

1 The negotiable instrument law, Act No. 64 of 1904, provides, in section 57:

“A holder in due course holds the instrument free from any defect. of title of prior parties, and free from defences available to prior parties among themselves, and may enforce payment of the instrument for the full amount. thereof against all parties liable thereon.”

Defendant’s counsel cites section 52, which provides:

“A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That it is complete and regular upon its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith and for value;
“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

He argues that inasmuch as the Notary’s paraph identified these notes with the act of sale from defendant to Little, and that act showed that the consideration of the notes sued on was Little’s assumpsit of the notes held by Walker, therefore plaintiff was charged with notice of the failure of consideration.

We do not think so.

True, that act did show that the assumpsit was the consideration of the notes sued on. True,, too, Little failed to pay the note held by Walker, <jue December I, 1920. But the record contains no proof that plaintiff knew or had reason to believe that Little had not paid that note.

Section 59 of the negotiable instrument law provides:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course. But the last mentioned rule does not apply in favor of a party who became .bound on the instrument prior to the acquisition of such defective title.”

Under this section the bank must be presumed prima facie to be a holder in due course, and

Section 56 provides:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument' amounted to bad faith.”

It was held in Abat vs. Gormley, 3 La. 238, and Chalaron vs. Vance, 7 La. 571, that the negotiability of a promissory note made in due form is not restrained or in any manner altered by tfie circumstance of its being paraphed “Ne Varietur” by a Notary Public.

If the circumstance, though, of the notes being paraphed, were sufficient to charge plaintiff with knowledge of the stipulations in the deed from Crowe to Little, this knowledge would go no further than informing him that the consideration of the notes sued on was Little’s assumpsit of the notes held by Walker. It would not inform plaintiff of Little’s failure to pay the Walker note due December 1, 1920.

8 Corpus Juris, page 748, verbo “Bills and Notes”, section 1020, lays the rule down as follows:

“As against holders in due course neither want or failure of consideration is any defense in the absence of a statute to the contrary, and this is the rule under the negotiable instruments law.”
“A fortiori a partial failure of consideration is not a defence against the holder in due course, and hence a breach of warranty is no defence.”

Many cases are cited in support of the text, and amongst them three from Louisiana, namely:

Peoples Bank vs. Trudeau, 38 La. Ann. 898; Herbert vs. Doussan, 8 La. Ann. 267; Mallard vs. Aillet, 6 La. Ann. 92.

Defendant’s counsel also cites “Ogden on Negotiable Instruments”, page 156, as stating:

“Bills payable in installments are considered overdue in toto, when any installment is past due, but not from the fact that the interest is’ past due.”

This is, no doubt, a pound principle, but he refers to no authority holding it applicable to the unmatured notes of a series and it seems that it does not apply to them.

8 Corpus Juris, verbo “Bills and Notes”, paragraph 606, page 410, gives the following rule:

“If an installment of a note is overdue at the time it is transferred, the purchaser takes the whole note as overdue paper and is not a bona fide holder; but if there are several notes, even though secured by one mortgage, the fact that one note is overdue does not render the others so nor make. them subject to defences in the hands of a purchaser, unless there is an express provision or a statute to such effect.”

We know of no statute in Louisiana making all notes of a series due on failure to pay ■ one of them, and the act in question contains no provision to that effect.

Defendant’s counsel also cites Lapice vs. Clifton, 17 La. 152, in support of the proposition that:

“A note must be transferred in good faith in the ordinary course of business before maturity and without any circumstances to induce a reasonable belief of the existence of such equities or defenses to preclude evidence of them by the maker.”

That case, in our opinion, is not in point, because the court, held that a pledge of the notes in question, made before their maturity, had been annulled and that the plaintiff’s rights must be measured by a new pledge made after their maturity.

In this case, though, the two notes due December 1, 1921, and 1922, were acquired by plaintiff before maturity, in the ordinary .course of business, and presumably in good faith as there is no proof to the contrary, nor is any circumstance apparent which could have induced a reasonable belief of the existence of any equity. The only circumstances claimed to have that effect were the fact that the other note was overdue and' that the paraph identified them with the sale from defendant to Little which sale showed that the three formed part of a series of notes the consideration for which and for the land sold was Little’s assumpsit; but there is nothing in the record to show that plaintiff knew that Little had failed to meet the note due December 1, 1920, which he had assumed, and, as said above, mere knowledge of what the consideration was was not knowledge of the fact that the consideration had failed.

Defendant’s counsel also cite Continental Bank and Trust Co. vs. Times, 142 La. 209, 76 South. 612. In that case the note sued on read as follows:

“150. Shreveport, La:, March 24, 1913.
September 1st, 1915, after date I promise to pay to the order of myself one hundred and fifty dollars with 7 per cent per annum interest from maturity until paid at Commercial National Bank of Shreveport, La., rent for month of August, 1915, for part of brick building located on corner of Marshall street and Alley in Shreveport, La., as per contract dated March 24, 1913.' Value received.
The Times Publishing Co., Ltd.”

The court held that the concluding clause of the note had the effect of incorporating in it the contract of Mnrch 24, 1913, which was a lease contract wherein the Oliff Brick Company leased to the maker of the note part of a brick building for ten years; that in this contract must be regarded as written the provisions of articles 2693, 2694, and 1697 of the Civil Code respecting the obligations of a lessor to make needed repairs and in case of his default authorizing the lessee to make them at his expense, and, in case of destruction, terminating the lease; and that therefore the note was not an unconditional obligation to pay but a conditional one and hence not negotiable.

In this case, though, there is nothing in the notes sued on to destroy their negotiability.

He also cites Marcal vs. Melliet, 18 La. Ann. 223, which in our opinion, is without application because the court there found that the negotiation of the notes took place after -its original maturity and that an extension agreement made by the parties did not restore full negotiability to the note which had become restricted as to negotiability by the failure of the maker to pay it at its original maturity.

In our opinion the case of Maurin vs. Chambers, 6 Rob. 62, is decisive of this case.

There the defendant made a note payable to the order of one’Williams and stating on its face that the consideration was the purchase of a tract of land. When sued by an endorsee (though the endorsement was without recourse) defendant plead that he was being sued for the land and in danger of eviction and that plaintiff knew of the suit. The court said:

“It is true, that the note states on its face that the consideration of it was the purchase of a tract of land from G. & F. Cretien, who endorsed it to the plaintiff, without recourse. It is negotiable, being made payable to the order' of the payee. There is no evidence of the knowledge of the plaintiff, when he received the note, that a suit’was brought against the maker for the land. The consideration of a note being stated on its face to be the purchase of a tract of land, imposes no obligation on the endorsee to inquire whether his endorser had a good title to the land; neither does this obligation result from the note being endorsed without recourse. The note being in the hands of an endorsee, the maker is disabled from urging an inquiry as to its consideration.”

This case is cited approvingly in Sadler vs. White, 14 La. Ann. 178, in which the court uses the following language:

“Any one, having sufficient confidence in another to give his written obligation for something to be given or enjoyed hereafter, is at liberty to do so, and the maker cannot censure any future holder of the note for having purchassed it, and for seeking to hold him liable, for it was the faith of the maker in the payee that he would execute his promise and allow no obstacles to defeat it, that created the note and gave currency to it.”'

The case of Maurin vs. Chambers, 16 La. 207 had been before the Supreme Court previously. On the first trial the lower court had excluded evidence showing that the consideration of the note was a sale of land by Cretien and that a suit for eviction was pending. The ground given by the court for excluding the evidence was that it should not be received because defendant had not offered any proof that plaintiff knew of the danger of eviction.

The' Supreme Court held this exclusion was erroneous, because the defendants had the right to introduce their proof in whatever order pleased them and when offering the excluded proof had stated that they intended afterwards to introduce evidence of plaintiff’s knowledge of the threatened eviction. The case went back to the lower court and was tried again and appealed again and, as shown above,; the Supreme Court on the second hearing gave plaintiff judgment, not because of failure to prove danger of eviction from the land the purchase of which constituted the consideration of the notes but because knowledge of this danger had not been brought home to plaintiff at the time he acquired the notes.

For these reasons the judgment of the lower court is affirmed. ”


text:
    No. 2079
    Second Circuit Appeal
    FLOYD BROOKS v. S. D. DAWKINS, ET AL.
    (June 6, 1925, Opinion and Decree.)
    (See Brown vs. Dawkins on page 213 herein.)
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Jackson, Hon. R. W. Oglesby, Judge.
    Holstead & Thompson, of Ruston, attorneys for plaintiff, appellant.
    Dawkins & Dawkins, of Monroe, E. L. Walker, of Monroe, attorneys for defendants, appellees.
   CARVER, J.

This case is exactly similar to that of William J. Brown against the same defendants, this day decided, except that Ernest Brooks, the boy arrested in this case, was not only a member of the freight train excursion party but had previously been found in company with some other boys “shooting” dice and had been arrested for breaking open a school house. The evidence does not shoW What became of this charge. We do not think this circumstance sufficient to differentiate the cases.

It is accordingly decreed that the judgment of the lower court, as to S. D. Dawkins, he reversed and that Floyd Brooks do have and recover for the use and benefit of his minor son Ernest Brooks judgment against S. D. Dawkins in the sum of one hundred dollars with 5% per annum interest thereon from this date until paid and all costs of both courts. It is further decreed that as to the defendant Carson, the judgment of the lower court is affirmed.


text:
    No. 2102.
    Second Circuit Appeal.
    FRANK IRVINE ET AL. v. MICHAEL J. NOONE
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 5.
    The court takes judicial cognizance that the sovereignty of the United States had been set aside as a fact in Louisiana and that the State of Louisiana and the Confederacy of which it had become a part were claiming sovereignty on August 8, 1861.
    2. Louisiana Digest — Evidence—Par. 27, 47, 48.
    One who obtains a receipt from the Register and Receiver of the land office after the State of Louisiana had seceded from the United States and become a part of the Confederacy must be presumed to have known that he was not dealing with the United States, but with the power that had replaced it in point of fact.
    3. Louisiana Digest — Laws—Par. 70.
    Under United States Revised Statutes No. 2222, although an officer is authorized to continue in the discharge of his duties until his successor is qualified, it cannot be made to serve the purpose of interrupting the orderly conduct of business and depriving the Government of its property against its consent at the dictation and for the benefit of a hostile power that has assumed temporary control of its territory, its property and its officials.
    4. Louisiana Digest — Laws—Par. 70.
    Where States of the United States secede from the Union it is not necessary for the President of the United States to perform the idle ceremony of accepting the resignation of thousands of Federal' officials in the seceded States in order to give formal regularity to proceeding of a civil nature.
    5. Louisiana Digest — Laws—Par. 70, 72.
    The rule that entries made in the land office segregate the land so entered from the public domain and operate as a bar to any other disposition thereof until set aside by formal proceedings to which the entryman must be a party has application only to officers of the United States acting as such.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. L. L. Hooe, Judge.
    This is a suit to recover a tract of land of which the defendant is in possession under a patent from the United States based on a homestead entry made in 1910. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Nachman & Wahlder, of Alexandria, attorneys for plaintiffs, appellants.
    Hawthorne and Stafford, of Alexandria, attorneys for defendant, appellee.
   CARVER, J.

Plaintiffs, as the heirs-of Francois Barbier, sue to recover from the defendant a tract of land of which he is in possession under a patent from the United States based upon a homestead entry made in 1910.

They claim to own it by virtue of a Receiver’s receipt signed by George Purvis, Receiver, reading as follows:

“No. 23190, Receiver’s Office at Monroe, La., Aug. 8, 1861.
“Received from Francois Barbier, of Rap-ides Parish, La., the sum of thirty-nine dollars and 77 cents; being in full for the Southwest quarter of Sec. 4 and S. E. quarter of Section No. 5 in Township No. 4 N. of Range No. 3 East containing three hundred and eighteen acres and 14 hundredths, at $12% /100 per acre.
“$39.77/100.
“GEO. PURVIS, Receiver.”

A copy of Barbier’s application and of its approval by R. W. Jemison, Register, the original of which was found on file in the United States Land Office at Baton Rouge, was introduced in evidence and reads as follows:

“No. 23190, Land Office at Monroe, La., August 8, 1861.
“I, Francois Barbier, of Rapides Parish, La., do hereby apply to purchase the SW% of Section 4 and SE% Section 5 in Township 4 North Range 3 East, containing 318.14 acres, according to the returns of the Surveyor General, for which I have rate of 12 %c per acre. Francois Barbier.
“I, R. W. Jemison,' Register of the Land Office at Monroe, La., do hereby certify that the lot above described contains 318.14/100 acres as mentioned above, and that the price agreed upon is 12%c per acre.
$39.77/100.
(Signed) R. W. JEMISON, Register.”

Defendant plead prescription and also that the Receiver’s receipt on which plaintiff declared was null and void because at the date of its issuance the State of' Louisiana had seceded from the Union; that the United States Land Office at Monroe had been closed; and that no one was authorized to represent the United States in the disposition of its lands.

The District Judge sustained the plea of prescription and plaintiffs appealed.

D. K. Parrott, acting Commissioner of the General Land Office testified that R. W. Jemison took office as Register on September 29, 1860, and resigned February 19, 1861; that G'eorge Purvis took office as Receiver on September 29, 1860; and that “a letter is found in the files of this office which indicates that he resigned April 3, 1861”; that no successors were appointed (meaning, of course, soon thereafter) ; that the land in question was within the boundaries of the Monroe Land Office District; that Louisiana apparently seceded January 26, 1861; that the Barbier entry was not reported to the General Land Office or entered on its books nor was the price he paid sent there; that though his office had no record of a formal closing of the Monroe Land Office, the last abstract of cash entries sent to the General Land Office before the breaking out of hostilities between the north and south was February 1, 1861; that the last cash entry reported before the Civil war was 23027, dated January 31, 1861;. that the office was re-opened for business on December 23, 1867; that .the first cash' entry after re-opening was January 7, 1873, being number 23028, and the first homestead entry was December 28, 1867; that the General Land Office does not recognize the acts done by the persons in control of the office while it was closed, because they were not lawfully constituted agents of the United States Government; that the persons so in control remitted no moneys and made no reports to the General Land Office during that period.

An extract from the Tract Book in the United States Land Office at Baton Rouge, to which office the records of the Monroe office were transferred, shows, opnosite the description of the land in question as follows:

“Claim of Francois Barbier No. 23190, Posted from Surveyor General’s map 12/7/06. L. 19379.”

A pen is run through Barbier’s name, evidently to erase it.

An extract from the Baton Rouge tract book shows opposite the SE% of Section 5 as follows:

Francois Barbier 1861 August 8 23190 Cons.

A pen is run through the description of the land, evidently to erase it.

The official plat of Township 4 North Range 3 East on file in the General Land Office does not show Barbier’s name.

The plat on file in the Baton Rouge office shows that across the SE}4 of Section 5 and SE14 of Section 4, which together form one body of land, is written

“Francois Barbier receipt No. 23190”.

The copy of this plat filed in evidence bears the following notation:

The north, south, east and west boundaries of this township were surveyed by Charles DeErance deputy surveyor in the year 1813 and 1814 and the sectional lines were surveyed by Edmund H. Wailes deputy surveyor in November, 1824. Ser•veyor’s Office, Washington, Miss., June 9, 1827. G. Davis, surveyor of public lands south of the state of Tennessee.

Surveyor General’s Office, New Orleans, La., January 29, 1908.' I certify the above map to be a correct copy of the original now on file in this office.

Surveyor General of Louisiana.

We have not been referred to any law of the United States .authorizing Registers and Receivers to sell United States land at a price to be agreed on between land Register and Receiver and the purchaser, nor to any law of the United States, authorizing the sale at so small a price as 12%c per acre nor have we found any such law.

Neither Jemison’s approval of Barbier’s application to purchase nor Purvis receipt, though signed by them, respectively, Register and Receiver, and though they had been appointed Register and Receiver, respectively, in 1860, appears to have been signed by them as officers of the United States.

This circumstance and the fact that they had resigned and the further fact that they made no remittance of the purchase money nor any report of the sale to the General Land Office and could not in view of the war in progress have remitted or made report, coupled with other facts of which we think we have the right to take judicial notice convince us that in making the sale and issuing the receipt Jemison and Purvis did not assume to act for the United' States and the entryman must have known it. At any rate, he must be presumed to have known that the authority of the United States had been set aside, not as of right but as a fact, and that the state and the Confederacy of which it had become a part, were claiming sovereignty and actually exercising dominion over the territory embracing the land in question'and that the state was asserting ownership of all unappropriated land in said territory.

He must be presumed to have known that under prevailing conditions he could, not have obtained from the United States or its officers any rights that would be recognized or respected by the power in actual control, and further, that in dealing with the United States or its officers' would be regarded as disloyalty to the power- so in control, probably entailing severe penalties.

In view of these considerations, we are satisfied that when Barbier obtained the receipt • he knew that he was not dealing with the United States but with the power that had replaced it in point of fact.

Were this not the case, though, the result would be the same, because in our opinion the question does not turn on Barbier’s knowledge or ignorance of the capacity in which the officers acted but upon the capacity itself in which they did act.

Counsel for plaintiff argues that under ordinary rules of law as well as, under United States Revised Statutes 2222 an officer is authorized to continue in the discharge of his duties until his successor is qualified.

The purpose of this law is to insure the continuance in orderly fashion of the Government business, including the protection of its property; it cannot be made to serve the opposite purpose of interrupting the orderly conduct of business and depriving the Government of its property against its consent at the dictation and for. the benefit of a hostile power that has assumed temporary control of its territory, its property and its officials.

We think the maxim inter arma leges silent applies to the situation here presented.

Besides, were the' officers authorized by this rule to continue in the discharge of their duties, we are satisfied, as said above, that they did not so continue or pretend to do so, but, on the contrary, acted as- the agents of the power in actual if not rightful control of the territory at the time.

Counsel also argue that as in law the ordinance of secession was invalid and never recognized by the United States whose title ■to the property was therefore unaffected py the ordinance and as there is no proper or sufficient proof that the Receiver had resigned, it follows his acts must be regarded as authorized by the United States.

This contention is answered by the consideration already mentioned that in our opinion the officers did not act for the United States but for a hostile power.

As to the proof of the Receiver’s resignation not being sufficient, and the argument that it was ineffective until accepted, we think that the situation created, not, indeed by the ordinance of secession but by the consequences ensuing therefrom, chief qf which was the actual assumption of sovereignty by the state and the Confederacy over the territory, operated to oust the officers without any resignation or acceptance thereof.

The President of the United States was not required to turn aside from the important duties then engaging his attention looking to the preservation of the Union in order to perform the idle ceremony of accepting the resignations of thousands of Federal officials throughout the. south so as to give formal regularity to proceedings of a civil nature. Nor was he required at that busy time to do the vain thing of appointing successors who could not have acted and would have risked severe punishment if they had tried.

Counsel invoke the rule that entries made in the land office segregate the land so entered from the public domain and operate as a bar to any other disposition thereof until set aside by formal proceedings to which the entryman must be a party.

This rule, we think, has application only to entries made by officers of the United States acting as such.

The Federal Government in liquidating the civil war was not obliged to bring millions of suits to regain its property or to cancel attempted dispositions thereof made under authority of the Confederate Government or its constituent states. Such attempted- dispositions were absolutely void and needed no judicial pronouncement to make them so in law, and no other proceedings than the collapse of the Confederacy to make them so in fact.

Counsel also argue that the law did not require remittance to the General Land Office or report of the entry to that office in order to make it valid. That is true. But it did require that the entry and money be received by officers of the United States authorized to act and actually acting as such.

Of course the notation on the map in the Baton Rouge Land Office shows on its face that it was a mere memorandum of the entry number 23190 of August 8, 1861, and is no evidence of any prior claim.

Our conclusion on this branch of the case renders it unnecessary to pass on the question of prescription.

Since writing the above, we find the case of Betts vs. I. C. R. R. Co., 52 La. Ann. I 918, 24 South. 644, which refers to legislation of 1861, the hooks containing which legislation are not available to us at present.

According to the report of that case, though, the secession convention after passing the ordinance of secession of January 28, 1861, passed an ordinance on February 12, 1861, assuming control and ownership of all unappropriated public lands in the state, and that the legislature, on March 27th of that year, passed an act being remodelling the State’s Federal Land Office. Provision was made in section 10 for a Register and Receiver to be appointed by the Governor for each of the local land offices, In section 12 provided “that the several Registers and Receivers appointed under this act shall receive and take charge of all the maps, books, papers, furniture, etc., of the several land offices of the United States”. Section 13, provided “that for the sale of the public lands in thd state is divided into five land districts corresponding and being the same as the several land districts of the late United States and a state land office shall be established each place where the late United States had a United States land office”. Section 14 “that provided all lands belonging to or claimed by the state shall be sold and disposed of at the land office of the district in which the land may be situated”.

The statute so referred to confirms us in the conclusion which we had reached without reference thereto that Purvis and , Jemjson in allowing the entry in question did so not as officers of the United States but as officers of the state having doubtless been appointed as such,- although there is no proof in the record to that effect.

The judgment of the lower court rejecting plaintiff’s demand is correct and for the reasons above given it is affirmed.


author: REYNOLDS, J.

text:
    No. 2126.
    Second Circuit Appeal.
    W. P. RISER v. HENRY DOBBINS, HARRIS NEWSOM, Warrantor.
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 635.
    Where the weight of evidence supports the conclusion of the district judge that the transaction in question was a sale and not a pledge, the decision will •be affirmed accordingly.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Winn, Hon. R. W. Oglesby, Judge.
    In this case plaintiff sued out a writ of sequestration and had seized under the writ, one mule, claimed by Henry Dobbins, the' defendant. Dobbins claims the mule by reason of having bought same from Harris Newsom, called in warranty.
    Newsom claims, to have bought the mule from plaintiff for $40.00.
    On these issues the case was tried and there was judgment in favor of defendant and warrantor and plaintiff appealed.
    Judgment affirmed.
    Moss and Peters of Winnfield, attorneys for plaintiff, appellant.
    Pearce and Fuller, of Winnfield, attorneys for defendant, appellee.
    A. Leonard Allen, of Winnfield, attorney for warrantor, appellee.
   REYNOLDS, J.

In this case plaintiff sued out a writ of sequestration and had seized under the writ one mule, claimed by Henry Dobbins, the defendant.

Dobbins claims the mule by reason of having bought same from Harris Newsom, called in warranty.

Newsom claims to have bought the mule from plaintiff for $40.00.

On these issues the case was tried and there was judgment in favor of defendant and warrantor and plaintiff appealed.

OPINION

The question presented in this case is one of fact as to whether or not a transaction between plaintiff, W. P. Riser, and warrantor, Harris Newsom, under which the mule was delivered by Riser to Newsom, was a sale or a pledge.

Riser swears positively that he delivered the mule to Newsom as a security.

Newson swears just as positively that he bought the mule from Riser for the price of $10.00 and that the mule was turned over to him at the time of the transaction.

The district judge, who knew the witnesses and heard them testify and was in position to observe their demeanor while they were testifying, decided the case in favor of the warrantor’s contention that the transaction under which the mule was turned over to him was a sale.

We have carefully gone over all of the evidence and in our opinion the weight of the evidence supports the conclusion of the district judge.

Plaintiff insists that the items mentioned 'by the warrantor as being the consideration for the sale of the mule were not paid and had not come into existence at the date the warrantor claims to have bought the mule; but in our opinion this is not' important, for under the warrantor’s evidence the thing, the mule, the price, $10.00, and the consent of the contracting parties, were all present and agreed upon at the time of the transaction; and even if the warrantor later failed to pay the price in accordance with his agreement that would not annul the sale. Plaintiff’s remedy would be a suit for the price, or otherwise a suit to annul the sale for failure to pay the purchase price. Under no condition could he disregard the sale or pledge and sequester the mule in the hands of a good faith purchaser in open market in due course of trade.

If plaintiff’s contention that he only delivered the mule to Harris Newsom as a pledge or security for debt is true, still his suit would have to fall for he could not disregard his pledge obligation and sequester the mule until he had discharged the pledge obligation, or at least offered to do so, and he does not pretend to have done either.

The judgment of the lower court is correct and it is affirmed at plaintiff’s costs.


author: ODOM, J.

text:
    No. 2175
    Second Circuit Appeal
    M. P. HENDERSON v. J. L. LANCASTER AND C. L. WALLACE AS RECEIVERS OF THE TEXAS & PACIFIC RAILWAY COMPANY
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Railroads—Par. 84, 89.
    Where the record does not disclose that the engineer of a railroad train or the railroad company was negligent in the killing of two bird dogs by a train, judgment must be for the defendant railroad.
    2. Louisiana Digest — Railroads—Par. 88.
    “Bird dogs” are not “stock” or “live stock” and consequently Act No. 70 of 1886 has no reference to and does not include in its meaning dogs, and therefore the placing on a defendant railroad company the burden of proving want of negligence in order to escape liability for injuring or killing stock, does not apply in an action for killing a dog.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit to recover the alleged value of two bird dogs killed by a railroad train. There was judgment for plaintiff. and defendants appealed.

      Judgment reversed.
    Bruton T. Dawkins; ot Alexandria, attorney for plaintiff, appellee.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit to recover the sum of $3300.00, the alleged value of two pointer bird dogs run over and killed by a train on defendant’s railroad.

tie alleges that his dogs were property assessed and were worth the amount that he claims.

And he especially alleges in paragraph five of his petition:

“That the killing and death of his said two dogs by defendant’s said train was due solely and alone to the gross carelessness, negligence and want of care and skill of defendant’s agents, servants and employees operating said train.”

And it is further alleged, upon information and belief that the defendant was negligent also in allowing the carcass of a dead animal killed by its train to remain at its track or on its right of way at a point where his dogs were killed, and that the presence of his dogs on defendant’s track was due to said carcass having been left there.

And he further alleges “that defendant was further negligent and at fault in failing to stop its train or get it under control when said dogs were observed on its track or right of way; and that said defendant in addition to failing to stop its train or getting it under control in order to ayoid running over said dogs, failed to employ the usual means of frightening animals from its track”.

And in paragraph eight he alleges that he was guilty of no negligence or fault or want of care whatever and “that the killing of his said dogs was due solely and entirely to the negligence, want of care and skill of defendant, its servants, agents, representatives and employees”.

In answer, defendant denied any indebtedness whatever to plaintiff, and sets up the following defence in paragraph seven of the answer.

“Further answering, respondents show that even if it be proved that one of respondent’s trains ran over and killed said dogs, (which, however, is denied); and further; even if it be proven that the killing of said animals was negligently done, (which, however, is denied); and further, even if it be proven that said dogs were duly assessed to plaintiff as alleged in the 3rd paragraph of said petition, nevertheless plaintiff cannot recover herein and respondents are not liable herein, because of the fact that respondents are informed, believe, and therefore aver that said dogs were trespassers upon respondents tracks and right of way, and also because said plaintiff had paid no license tax on said dogs as required by law in intendment of the statutes of Louisiana.”

There was judgment in the lower court in favor of the plaintiff for $275.00 and costs, from which judgment defendants appealed.

OPINION.

The testimony shows beyond question that plaintiff’s dogs were killed by one of defendant’s trains. The dogs were both found on or near the railroad track, one with its head severed from its body, and parts of the mangled body of the other one were found along the track for some distance, and there were hair and blood on the rails.

We think, also, that plaintiff made out his case as the value of the dogs. The District Judge found the value of the two dogs to be $275.00, and while this may be high yet there is no evidence that they were not worth that amount and we cannot say that the District Judge erred on that point.

The dogs were placed on the assessment roll at $150.00 each in March, 1922, and were killed in October of that year.

The real, and we think the only point at issue which calls for our attention, is whether the killing of the dogs due to the fault' and negligence of those in charge and operating the train which killed them:

We have quoted at length from plaintiff’s petition to show that he stresses the point in three different articles thereof that the killing of the dogs was due solely and exclusively to the gross fault and negligence of the agents and employees of defendants; and quote from defendant’s answer to show that the alleged carelessness and negligence of such employees is especially denied; and therefore the issue of negligence is especially raised in the case.

It will be conceded, of course, that if the defendants were not negligent or care-] less in the operation of the train which' killed plaintiff’s dogs there can be no recovery against them and that the burden of proving negligence, if any there was, is upon the plaintiff, unless under some special legislation he has been relieved of that burden.

So far as’ the record discloses no one saw the dogs killed and no one knows just when they were kiiled.

The téstimony shows that the track at the place where the dogs were killed is straight for at least a mile each way; that there was no grass or weeds or bushes •hanging over or near the track; and, in fact, nothing to obstruct the view of those operating the train.

Counsel says that if those in charge of the train had been looking they could have -seen the animals and could have stopped the train or could have frigthened them -away and he argues that the fact that they did not see them and stop the train or frighten them away shows that they were careless and negligent.

In his brief, after reviewing the above facts as to the condition of the track, he says: “Under the facts above outlined defendant was clearly negligent”.

We cannot agree with learned counsel on this point. Of course if the animals were on the track some, ti me before they were hit the operators of the train should have seen them. It was their duty and their business to see that which was on the track in front of the train and their failure to see is negligence. But the fact that these animals were struck and killed does not by any means prove that they were on the track long enough to enable the train crew to protect them. Dogs like those killed are remarkably fleet, agile animals, more so than cattle, horses, sheep, goats or swine, and it may well be that they got on the track so quickly and so near to the tr&in that it could not be stopped in time to save them. This was in the country where there were no crossings, so far as the record discloses, where those in charge of trains are permitted to operate them at full speed. It would be manifestly impossible to stop a fast train in time to save a dog which jumped on the track just ahead of it. The court cannot infer negligence merely and solely because these animals were run over and killed by a train.

Counsel says in brief.

“Knowledge of how these dogs met'their death was in the possession of the railroad company alone. Only its train crew knew the facts, and under the well established rules of evidence the failure of the railroad company to produce it would justify the. court in holding that on the facts disclosed by plaintiff the railroad company was responsible. It made no explanation of the killing.”

Defendant did not have to explain the killing. Counsel overlooks the fact that negligence on the part of defendant was alleged by him as' a part "of his' case and that the burden is on him to prove it. Defendant did not have to disclose the manner in which the dogs were killed. That is..a part of the plaintiff’s case and it was his duty to do that. The defendant does not have' to make out plaintiff’s case for him. The rule referred to by plaintiff does not apply to a case of this kind.

“What must be alleged, must be proved.”

Counsel cites volume 1 of Ruling Case Law page 1201 to the effect that when it appears that dogs on the track, fighting, for instance, or setting birds, are oblivious to danger, it is the duty of the train crew to stop or to cheek speed in order to avoid killing or injuring them.

That is true, of course, but that principle, of course, is based upon the assumption that those in charge of the train saw the dogs in time to save them.

. Counsel cites the case of Hollins vs. New Orleans & N. W. R. Co., 119 La. 418, 44 South. 159, to the effect that when in broad day light, a child, of tender years is found on a railway track killed and no one connected with the operation of the train was aware of the killing, it is for those who are responsible for such killing to show that the accident was not due to their negligence.

That case is not at all analagous to the case at bar. In that case the train crew were backing a train over a curved track through- a town where children were accustomed to playing without a lookout on oh the forward end of the train to warn those who might be in danger or to signal the train crew. The court held that this was the grossest and most inexcusable negligence to show that the tragedy was due to some other cause.

We find no proof that the defendant in the instant case was guilty' of negligence. There is no proof that those in charge of the train saw the dogs at all, and if it be assumed that they did not see them, there is nothing to indicate they they saw them in time to check the train in order to avoid killing them. In fact, as stated, the circumstances of the killing are not disclosed by the record. We cannot assume from the state of facts disclosed in this case that railroad company was negligent.

Counsel urges that even if the court should hold that no negligence was proven by plaintiff, that plaintiff is relieved from the burden of proving negligence because dogs are “stock” under the provisions of Act 70 of 1886 which provides that in suits against railway companies for the loss of “stock” killed or injured by them it shall be sufficient for plaintiff to prove, in order to recover, that his “stock” was killed by the defendant company, unless the defendant company prove that the killing or injury to such “stock” was not due to its fault or negligence.

This act relieved the plaintiff of the burden of proving negligence on the part of defendant and required railroad companies to disprove negligence in cases where plaintiff proved the killing or injury of stock by them.

But the act limits this rule to actions for the loss of “stock” killed or injured. Dogs are not “stock” in the ordinary and popular meaning of that term.

Counsel cites no authority, nor have we been able to find any, holding that the word “stock” or the words “live stock” have been construed to include dogs in their meaning. “Stock” as defined in Webster’s New International Dictionary means domestic animals, used and raised on a farm, especially cattle, sheep, hogs, etc. The term “live stock” as used in the Packers Stock Yard Act of 1921 means cattle, sheep, swine, horses, mules and goats. In Words & Phrases, volume 5, page 4192, we find mention, under the head of “Livestock”, cattle, horses, mules, asses, sheep, hogs, meat cattle, swine and goats.

■ See, also, Words & Phrases, volume 7, page 6660, under the head of “Stock”.

In the Code of Iowa, the term “stock” means cattle, horses, mules and asses.

■ Under the Revised Statutes of Wyoming relating to railroads, the terms “stock” and “Live Stock” include all classes of horses, asses, mules, meat cattle, sheep, goats, and swine.

In 25 Cyc. 1515, under the head of “Live Stock”, we find domestic animals, kept for farm purposes, especially marketable animals, as cattle, horses, sheep, etc.

As used in the Fence and Stock Law of North Carolina, the Word “stock”, means horses, mules, colts, cows, calves, sheep, goats, jennets, meat cattle and swine.

We are unable' to find any definition or interpretation of the terms “stock” and “live stock” in which it has been held that these terms include dogs:

In a great many jurisdictions it has been held that dogs are not domestic animals, but in as many others the contrary has been held.

In the case of State vs. Harrison, 75 Maine 562 (46 American Reports 423) it was held -that an indictment for killing a dog could not be maintained under a statute providing a penalty for killing or wounding a domesticated animal.

Dogs are not - in the class of ordinary domesticated animals.' From the standpoint of being property they are not even in the class with fowls, such as chickens, geese and turkeys. This is true in practically all 'of the states so far as we are able to ascertain.

Dogs are not property under Louisiana law today unless assessed. They cannot be made the subject of larceny unless carried on the assessment roll. We do not think of them ordinarily as property, and this is true not only in the state of Louisiana but everywhere. On the contrary, we always think of “stock” or: "live stock” as property,' that is, something of value intrinsically.

There is a special act of our legislature granting cities, towns and villages author-' ity to prohibit the running at large of live stock of all kinds. No one ever construed the term “live stock” in that act to- have reference to dogs.

In the case of Duval vs. Harvey, 148 La. 739, 87 South. 730, the court held that, an unassessed dog has the status of a. wild animal to a certain extent.

The reason that we do not think of dogs as of any value as property ..is because they have no intrinsic value. It took a special act of the legislature to make them property in Louisiana.''

We do not mean to intimate that dogs are not valuable. They may be, and we are not discussing the question as to whether a dog is more valuable than a cat, a parrot or any other pet. That is not the question. The question is whether or not the term “stock” as used in the act of the legislature above referred to includes dogs. The words “stock” and '“livestock” in common parlance and under the law have reference to animals- which have intrinsic value as for food or beasts of burden.

Our conclusion, therefore, is, that the word “stock” as used in Act 70 of 1886 has no reference to and does not include in its meaning dogs, and that the provisions of that act, placing on a defendant railroad company the burden of proving wánt of negligence in order to escape liability, for killing or injuring stock, do not .apply in an action for killing a dog. '

The plaintiff in this case was not relieved of the burden of proving negligence, which he alleged, and not having proved negligence he cannot recover.

For the - reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and plaintiff’s suit dismissed at his costs.


text:
    No. 2215.
    Second Circuit Appeal.
    R. H. FLETCHER v. WINNFIELD BOTTLING WORKS, ET AL.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 80.
    Under Articles 1951, 1957 and 2474 ol' the Civil Code, parties to a contract are not presumed to use words which mean , nothing and courts must give effect if possible to everything that they see fit to put in them.
    2. Louisiana Digest — Obligations—rPar. 79.
    Where one sold a business to another after having overpaid for the business the taxes due the United States, the fact that contract of sale contained the word “attendant interest” sold will not give the seller the right to recover the surplusage of the taxes paid by him before the sale.
    3. Louisiana Digest — Evidence—Par. 53, 60.
    The plaintiff having failed to sustain the burden of proof to make out his case, the judgment must necessarily be with the defendant.
    4. Louisiana Digest — Sales—Par. 42.
    Under Article 2474 of the Civil Code the seller is bound to explain himself clearly and therefore, unless he can show that he has explained himself clearly the judgment must be against him in case of doubt.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Winn, Hon. J. E. Reynolds, Judge.
    This is a suit to collect the amount of a refund made by the United States Government for over payment of taxes for a business which was afterwards sold by the plaintiff. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Moss and Peters, of Winnfield, attorneys for plaintiff and appellant.
    .E. L. Walker, of Winnfield attorney for defendants and appellees.
   CARVER, J.

The plaintiff appeals from a judgment rejecting his demand against Winnfield Bottling Works, a commercial partnership composed of E. C. Givens and E. A. Givens, for $308.56, the amount of a refund made by the United States Government, being over-payment of tax paid by the business known as “Winnfield Bottling Works” while it belonged to and was operated by the plaintiff. ■

Plaintiff was operating the business of manufacturing and selling “soft” drinks and other articles usually sold therewith under the name of “Winnfield Bottling Works”.

On November 21, 1922, he leased various items of personal property to defendants, E. A. Givens and E. C. Givens for a period of thirty days, the lease giving them an option to buy the property for the price of $5500.00 cash. The rental was fixed at $500.00 to be applied on the purchase price in case defendants availed themselves of the option.

The name “Winnfield Bottling Works” was not used in the lease contract, but the articles listed were those used in the business run under that name.

The option was accepted by defendants within an extended period granted them, whereupon plaintiff, on January 22, 1923, executed an act of sale to defendants E. A. Givens .and E. C. Givens from which we make the following extract.

“The Winnfield Bottling Works and all of the equipment situated and located in said plant, including one Maxwell delivery truck and one wrecked Maxwell truck, and any and all other equipment used, located and belonging to said Winnfield Bottling Works. He further sells the name of the concern, Winnfield Bottling Works, and its good will and attendant interest, and further, in consideration hereinafter stated, agrees, binds and obligates himself not, to engage in the manufacture of soft drinks of any kind whatsoever, within the Town of Winnfield or adjacent territory for a period of five years from date hereof.
“It is further understood and agreed that party of the first part, owner of the certain frame building located on Main street, adjacent to, the Rock Island railroad in which the Winnfield Bottling Works is now' located, does hereby lease and let unto party of the second part, the said building for a period of one year from November 22, 1922, at- a monthly rental of ten ($10.00) dollars, payable at the end of each month.”

It seems that plaintiff, in settling with the United States Government for taxes due on the sale of soft drinks, had paid more than he owed and was entitled to a refund, the amount of which could not be known until final adjustment by the United States Treasury Department. He made application for the refund, doing so in the name of Winnfield Bottling Works, being advised so to do by the Bottlers Association, because the tax had been paid under that name.

It appears that besides conducting the ' soft drink business plaintiff also conducted in the same building a cigar business which was not included in the sale to defendants. After the sale he remained for a time in the building leased to defendants.

The defendants, of course, after the sale continued the soft drink business in the name of “Winnfield Bottling Works”,

Some of the mail addressed to ‘Winnfield Bottling Works” related to old matters occurring during Fletcher’s regime and some related to new matters under the regime of defendants.

For some time after the sale, mail so addressed was taken from the post office by plaintiff and defendants indifferently each giving to the other what belonged to him or them. Plaintiff says this was by agreement. Givens disputes this, and says he had to complain to a United States lawyer in order to stop plaintiff from getting and opening his mail. Plaintiff admits that confusion resulted from both parties getting the mail and on February 11, 1923’, wrote the Postmaster to put all mail so addressed in defendants’ box. He admits having heard that defendants complained to the authorities.

Plaintiff’s application for the refund was made in the early part of 1923, but the time is not exactly fixed.

Plaintiff introduced in evidence a postal card from the Treasury- Department dated March 13, 1923, mailed at Washington, March 14, 1923, addressed to Winnfield Bottling Works, acknowlegding receipt of the claim.

Plaintiff testifies, page 43, that defendant E. A. Givens got this card from the post office and gave it to him in the presence of his son, R. M. Fletcher, who corroborates this, page 57. Givens denies this, page 25.

Givens introduced an undated check for $2400 drawn in favor of plaintiff and purporting to have been endorsed by him stating in the body “in full for Winnfield. Bo. Works complete”, on which is a notation in the corner reading thus: “In-, eluding all outstanding accounts that pertain to credit. All incumbrance paid by R. H. F.”

Givens swears, page 53, that the check was given to plaintiff in part payment of the price of the sale and that the notation was on it when he delivered it to plaintiff.

Plaintiff, page 58, admits getting a check for this amount but says if this was the check it did not have the notation on it when he received it.

Plaintiff says that since the sale he has been collecting accounts due the Winnfield Bottling Works at the time of the sale and that he did not include the claim sued for herein, or any of the accounts in the sale, pages 33, 41 and 58.

E. A. Givens admits that plaintiff has been collecting accounts, but denies his right to do so and swears that they as well as this claim were included in the sale. He says, pages 28, 44 and 52, that special mention was made of the Government claim on the Friday evening before Christmas just preceding the sale and that plaintiff represented it as large enough to cover the $500,00 rent, urging this as an inducement to buy.

T. W. Hilton, page 49, corroborates this, except that he does not fix the date exactly, though he says it was after the lease and before the sale was made.'

Plaintiff objected to this testimony on the ground that parol evidence was not admissible to vary or contradict a written sale, but the Judge admitted the testimony subject to the objection.

The District Judge held against plaintiff and dismissed his suit on the ground that the claim for refund passed to defendants by virtue of the words “attendant interest” in the contract.

In this court plaintiff’s counsel urge that this construction of the contract was erroneous. They point out that these words are not used in connection with the physical property sold but in connection with the name and good will of the Winnfield Bottling Works. They say in their brief “the attendant interest” sold with the name and good will of a business would not take from the grantor or give grantee any greater rights than the sale of the good will can convey”.

We do not perceive the force of this argument. If the claim is attendant on anything it is attendant on the name and not on the physical property transferred. The taxes paid were not paid on or in connection with the physical property sold to defendant. On the contrary, they were paid on sale made to others before Givens bought.

Counsel also argue that the claim was on the footing of accounts; that plaintiff, after the sale, went on collecting these, and that defendants themselves made no reclamation of the Government but allowed plaintiff to put in the claim and push it to conclusion.

It is argued by counsel for defendant that the testimony introduced, if admissible, affirmatively shows that the claim was included in the sale, and that whether admissible or not the contract, .under prescribed rules of construction, must be held to include it.

The rules invoked are Civil Code articles 1951, 1957 and 2474, which read as follows:

“Article 1951. When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.”
“Article 1957. In a doubtful case the agreement is interpreted against him who has contracted the obligation.”
“Article 2474. The seller is .bound to explain himself clearly respecting the extent of his obligations: any obscure or ambiguous clause is construed against him.”

Plaintiff’s counsel has not suggested what would be included under the terms “attendant interest”, arguing, on the contrary, that the words used in connection with the name and good will would not pass anything beyond what would pass without them. We can think of nothing ourselves that ’ the words would carry unless it be such a thing as the present claim or a license tax paid in advance or insurance ■ premium paid in advance.

Parties to a contract are not presumed to use words which mean nothing and courts must give effect if possible to everything they see fit to put in them. The proof in the record does not show whether there was any unexpired insurance prepaid. As the sale was made on January 22nd, it is not likely that there was any prepaid license.

If the claim be considered on the footing of accounts, the plaintff’s case is helped but little. It is true he continued to collect these, but he does not show that he did so with defendants’ consent. On the contrary, Givens swears that he did not consent but protested and that he himself tried to collect the accounts but was unable to do so because of the claim that they were due to the candy and cigar branch of the business. The circumstance that defendants knew plaintiff was pursuing the claim and made no objection is of some force in favor of plaintiff. Givens says that he considered the claim as of little or no value. Besides, this, the claim was being made in the name of the Winnfield Bottling Works and though Givens does not give this as a reason yet he may have thought that as he had bought the name and the check would likely come in at that time, he only would be entitled to cash it.

Of course, if it be true as Givens swears that the notation on the check was placed there .before it was received by plaintiff, this circumstance would strongly corroborate the case of defendants. The testimony on this subject is evenly balanced, plaintiff swearing one way and Givens the other.

On the whole, the burden being on plaintiff to make out his case, the law reqtiiring us to give effect to all parts of the contract, and further requiring the vendor or other obligor to explain himself clearly, we have concluded to affirm the judgment of the lower court. And it is so decreed.


text:
    No. 2232.
    Second Circuit Appeal.
    BLUMENTHAL BROTHERS v. DIXIE BEDDING COMPANY, LTD.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 62, 111.
    Where the purchaser of goods to be delivered in the future expressly reserves the right to countermand the order be-, fore a certain date, a letter mailed and received by the defendant before that date countermanding the order is sufficient.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred M. Odom, Judge.
    This is a suit to recover the price of two bales of bed ticking. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Pugh and Easterling, -of Monroe, attorneys for plaintiff, appellee.
    Percy Sandel, and Theus, Grishman and Davis, of Monroe, attorneys for defendant, appellant.
   CARVER, J.

The plaintiffs, merchants of New Orleans, Louisiana, sued the defendant, a merchant of Monroe, Louisiana, for $565.14, the price of two bales of bed ticking.

Defendant admits ordering the ticking, but claims that in giving the order it stipulated that the goods were not to be shipped before March 1, 1922; that its reasons for such stipulation were that it had no storage room and insurance was high; that in giving the order it reserved the right up to March 1, 1922, of countermanding it;, and that it did, prior to that time, so countermand.

It appears that the order was given to plaintiff’s salesman, one Aldige, whose testimony was not taken at the trial.

Defendant’s president, Joseph. Kusin, testified, that in giving the order he reserved the right to countermand it on or before March 1, 1922.

On January 11, 1922, plaintiffs wrote to defendant a letter from which we take the following extracts:

“There is only one thing we are going to ask you to do and that is, we have the goods on hand and we will accept the order if you will allow us to make spot delivery. Kindly let us hear from you by return mail.”

Defendant replied, January 13, 1922, as follows:

“We will thank you to hold the order which we gave your Mr. Aldige until Feb. 1st, that is, make the shipment at that time.”
“P. S. We have no room at present for any additional stock.”

Kusin also testified that the writing of February 1st in the letter was a mistake, March 1st 'being intended.

Defendant, on January 16, 1922, sent plaintiffs a telegram reading as follows:

“Don’t ship our ticking before March first.”

To this, plaintiffs replied on January T6, 1922, as follows:

“We are in receipt of your letter as well as wire and in accordance with your wire request will make shipment of the goods you purchased from our Mr. Aldige on or about March 1st.”

Notwithstanding this letter, plaintiffs did ship the ticking on January 21, 1922 from Eddystone, Penn.

On arrival of the invoices, which was the first notice defendant had that the goods had been shipped, he wired plaintiffs on January 26, 1922, as follows:

“Two bales ticking you shipped will be subject to your order and cancel all orders you have for us.”

Subsequent correspondence between the parties took place but defendant consistently maintained throughout that it would not take the ticking.

Ordinarily the mere fact that goods were shipped prior to the date on which the purchaser ordered them shipped would not be good ground for his refusal to take them.

It is not necessary in this case to decide whether such advance shipméht was sufficient ground for • refusal in view of defendant’s particular reason for wishing the shipment deferred. The positive testimony of defendant’s president that it reserved the right to countermand, which testimony is not disputed, must be accepted as true.

Availing itself of this right it did by its telegram of January 26, 1922, expressly countermand the order, and, as said, defendant maintained this stand throughout all the subsequent; correspondence.

It is true the telegram of January 26, 1922, was sent five days after the goods were shipped, but it had no reason to suppose that they would, be shipped prior to March 1, 1922, or at least near March 1, 1922, in view of plaintiffs’ letter of January' 16, 1922, above quoted.

The judgment of the lower court was in favor of plaintiffs. There being no written opinion, we are not advised as to the reasons for that judgment. Whatever the reasons, were, though, we find ourselves unable to concur in the conclusion of the lower court.

It is decreed' that the judgment of the lower court be reversed and that plaintiffs’ petition be dismissed and their demands rejected at their cost.

Judge Odom being recused, took no part in the decision.