author: Beemudez, C. J.

text:
    No. 8926.
    Adam Brothers vs. S. Oteri & Brother.
    A principal ia bound to reimburse tbe expense and charges which his agent has incurred in the execution of the mandate, and pay his commission wliero one has been stipulated. Neither can he be dispensed therefrom, nor be permitted to leduce the amount to bo reimbursed, under pretense that the charges ought to have been less, even if the affair has not succeeded, where no faulvis imputed to the agent.
    PPEAL from the Civil District Court for the Parish of Orleans. XJL Tissot, J.

      Henry Denis for Plaintiffs and Appellants.

      W. S. Benedict for Defendants and Appellees.
   The opinion of the Court was delivered by

Beemudez, C. J.

This is an action sounding in damages alleged to have been sustained in consequence of counter orders from the defendants preventing the complete execution of a contract, partially carried out, under which plaintiffs, for their services, were to receive a fixed remuneration.

The allegations are that the plaintiffs were employed by the defendants for the purpose of forming in England a limited liability company for a feteainer in process of construction, and to provide for some arrangement with the builders for a satisfactory guarantee for the payment of the last instalment (£5000) of the price; that the defendants had agreed to pay for the plaintiffs’ services £300; that the petitioners were engaged in the execution of that agreement and had already taken a. great deal of trouble; done much labor and incurred expenses in furtherance, when the defendants changed their minds and instructed plaintiffs to proceed no further.

The defense is a general denial, amplified by averments to show that whatever passed between the parties, the alleged agreement never was entered into and that the sum claimed is greatly in excess of what would be the customary fee in like cases, viz: £20.

There was judgment dismissing the suit, and plaintiffs appeal.

Oral and documentary evidence was adduced, the latter consisting in the letters and cablegrams which passed between the principal and intermediate parties. The record contains some thirty letters and twenty dispatches on the subject.

We deem it unnecessary to state specifically what that evidence was.

We think that it establishes that the defendants, through the firm, Forstall, Ross & Clayton, of this city, did authorize the plaintiffs to take all necessary steps to form the company and to make some arrangement for the payment of the unpaid portion of the price of the steamer; that they agreed expressly to pay the plaintiffs £300 for their services; that the plaintiffs had a good deal of trouble in carrying out their mandate, placed the matter in the hands of a solicitor, had the projet of an act prepared, which' they transmitted to'the defendants and which is in the record, for their inspection and consideration, conforming as much as practicable with their views and instructions as far as understood; that the plaintiffs were willing to undertake to guarantee the payment of the balance of price duo the builder, provided they were secured either by a transfer of stock or by a mortgage on the steamer.

It further appears that a brother-in-law of the defendants, who has an interest in the ship, the importance of which cannot be easily or correctly stated, as he, himself, when pressed to specify it did not do so, and who was to have been put in command of the vessel had he proved himself, as ho claimed to be, an English subject, threw impediments in the way of the execution of the agreement. It also appears that it is on this account that the defendants countermanded their previous instructions, which had taken the form and substance of a valuable contract, in which the plaintiffs had acquired a pecuniary interest, a vested right, which could not be wrested from them with impunity.

Tlie counter orders to plaintiffs imply an anterior understanding and contract.

It is immaterial whether the litigants be viewed and dealt with as independent contracting parties, or as agents and principals. Prom either stand-point, the plaintiffs should recover.

The law on the subject of mandate distinctly recognizes their rights as asserted in the present action.

Article 3022 R. C. C. expressly provides:

The principal ought to reimburse the expense and charges which the agent has incurred in the execution of the mandate, and pay Ms commission where one has been stipulated.

Tf there bo no fraud imputable to the agent, the principal cannot dispense with this reimbursement and payment, nor can he reduce the amount of the reimbursement under pretense that the charges and expenses ought to have been less.” C. N. 2999; 2 R. 63, 163; 1 A. 5; 2 A. 024; 18 A. 342; 3 A. 98.

Nothing indicates that the plaintiffs ever were in default, while the proof is clear that the defendants were in various ways.

Had not Capt. Pizatti, the brother-in-law already mentioned, interposed obstacles as he did, which proved a stumbling-block', the undertaking would have been carried out by the plaintiffs, who having been foiled, should recover.

The measure of the damages is the amount which they would have earned had not the countermanding taken place and had they been permitted to complete their undertaking.

The judgment of the lower court was one of non-suit. The proof . warrants a recovery.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that plaintiffs recover of the defendants, Salvador Oteri and Joseph Oteri, in solido, the sum of fifteen hundred dollars, with legal interest from judicial demand until paid, with costs in both courts.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9165.
    Succession of Alcide St. Hubert.
    On an appeal from a judgment appointing tlie public administrator for tlie parish of Orleans administrator of a succession alleged by him tobe vacant, the question is not whether the deceased had left heirs present or represented, in the State, hut whether the existence of such heirs was made known, by opposition or otherwise, to the court, before the rendition of the judgment.

      If the judgment was preceded by an application with proper allegations, by public notice, was rendered after legal delays, and without opposition, the appellate tribunal cannot consider evidence brought after the judgment tending to show the existence and presence of legal heirs with a view to obtain a reversal of the judgment.
    PPEAL from tlie Civil District Court for the Parish of Orleans. jLjl Lamms, J

      Olías. Louque for the Heirs, Appellants.

      Breaux & Hall for the Public Administrator, Appellee.
   The opinion of the Court was delivered by

Poché, J.

The mother aud the three sisters of the deceased, representing themselves as Ms sole heirs, have taken this appeal from the judgment of the district court, appointing the public administrator of the parish of Orleans, administrator of this succession. The record discloses the following facts and proceedings:

A few days after the death of Alcide St. Hubert, who died in this city on December 8, 1883, the public administrator applied for the administration of his succession, alleging that the deceased had left property and debts and that he had left no surviving wife or heir, present or represented in the State, entitled to or claiming the administration of his succession. After due public notice of the application, and after the expiration of legal delays, and no opposition having been made to the application, the court appointed the public administrator and he was at once qualified as administrator of the succession.

From that judgment, which was rendered and signed January 10, 1884, the present appeal was taken by motion, on the 4th of February foRowing.

The motion of appeal was supported by affidavits of appellants reciting in substance ;that they are the sole legal heirs, all of age, of the deceased, and that they are now and were, at the time of his death, residents of the city of New Orleans.

The contention of their counsel is that these facts show conclusively that the public administrator was not entitled to the administration of tMs succession and that his appointment as such should be annulled and set aside as having been made in contravention of law.

Our understanding of the issue presented by the appeal, is that the sole question which we are called upon to decide involves the validity of the judgment appointing the administrator under the pleadings and facts then brought to the knowledge of the court.

On appeal, our investigation must, in the very nature of things, he restricted to the matters argued or contended below.

This rule peremptorily excludes from our consideration all matters and elements of proof as well as issues which parties may seek to inject in the proceedings subsequent to the rendition of the judgment complained of.

Hence, in this matter, the question is not whether the public administrator is entitled to his appointment under the showing made by appellants, who now present themselves, but whether under the showing-made before the district judge Ms judgment is sustained by law.

The record shows conclusively that no heirs had presented themselves, or were then known, to the court, and that no opposition had been made to the public administrator’s application.

Under those circumstances the law itself dictated the judgment which was rendered in the premises, and we have no authority to disturb it on this appeal. Acts of 1870, p. 120; Acts of 1877, p. 111.

It is, therefore, clear to our minds that appellants have entirely mistaken their remedy.

Judgment affirmed.

Rehearing refused.


author: Todd, J. Fenner, J.

text:
    No. 9066.
    Hugo Mehnert vs. M. Dietrich.
    Where the transcript is complete, hut the certificate of the clerk is defective in not showing it, the omission in the certificate may ho supplied hy a proper and timely motion.
    Where no judgmonfc for damages is rendered or prayed for against the surety on an injunction bond, he is a competent surety on the bond of appeal taken from the judgment dissolving the injunction.
    Where, after marriage and under the regime of the community, a business -which had formerly belonged to and been conducted hy the wife, is conducted in the name of the husband, it becomes the business of the community, and its acquests and good-will are liable to seizure for the husband’s debts.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Paul Beuseh and John P. Smith for Plaintiff and Ajipellee.

      A. B. Philips and Albert Voorhies for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Conrt was delivered by

Todd, J.

This motion is based on two grounds:

1. Upon the alleged incompleteness of the record, as shown by the certificate of the clerk.

Tlie certificate itself was defective, as upon its face it failed to attest or cover certain proceedings which the transcript in fact contained. Upon a timely motion of the appellant’s attorney, this defect or omission in the certificate was supplied and there has been returned to this Court a certificate meeting all the requirements of the law, and showing a record embracing all the proceedings had and evidence offered in the lower court. The motion, therefore, fails on this ground.

2. It is urged that the surety on the appeal bond was the surety on the injunction bond, from the dissolution of which injunction the appeal was taken, and that the said surety was, therefore, legally incompetent as respects the appeal bond.

We find from an examination of the record that there was no judgment rendered against the surety on the injunction bond for damages and no damages even asked against him in the motion to dissolve the injunction; and under such conditions he was under no disqualification as surety on the appeal bond.

The motion to dismiss the appeal is, therefore, denied.

On the Meeits.

Fenner, J.

Plaintiff, a judgment creditor of Emile Dietrich, seized, under fi. fa., a certain coffee-house and contents as the property of their said debtor.

His wife, Magdalena Dietrich, brought suit by third opposition, claiming ownership and possession of the property seized as her separate property, enjoining the seizure and claiming damages.

The evidence established that she owned the coffee-house, fixtures and contents prior to her marriage in 1879, and then carried on the business. It appears, however, that the community of acquests and gains subsisted between the parties and that since the marriage the business has been carried on in the name of the husband, whose name figured on the sign of the establishment and in the city directory, and in whose name also the internal revenue returns were made under oath.

Although she took an active part in the administration of the coffeehouse, these circumstances forbid her denial that the business was conducted as that of the community.

This, of course, did not convert the permanent fixtures, which were hers before marriage, into community jiroperty, but so far as the consumable stock was concerned, consisting of liquors, cigars, etc., which had been necessarily used and replaced many times, those on hand at the date of the seizure belonged to the community, as did also the goodwill. Such was the view taken by the judge á quo, who maintained the injunction in so far as concerned the fixtures, but dissolved it in other respects.

The judgment was manifestly correct.

Judgment affirmed.

Rehearing refused.


author: Fenner, J.

text:
    No. 9064.
    Wm. H. Aymar vs. A. L. Bourgeois, Sheriff, etc.
    In an injunction suit to restrain the tax collector from proceeding in a sale for taxes, when tlie validity of the assessment and taxes has been sustained hy a prior judgment which has become res adjudicata, the tax debtor stands in the position of a judgment debtor and the test of our jurisdiction is tho amount of the tax claim, exclusive of interest.
    APPEAL from tho Twenty-second District Court, Parish of St. James. Oheevers, J.

      Blanc & Sutler and R. Dugué for Plaintiff and Appellant.

      F. B. Earhart, District Attorney, and Sims & Poché, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is a writ to enjoin a sale of plaintiff’s property for taxes, wherein the plaintiff alleges that tho defendant, sheriff and tax collector, “in attempting to enforce and collect from jietitioner certain pretended taxes or tax claims, to wit: a State tax of 1875 for $362 50; a State tax oí 1876 for $337; a parish tax of 1876 for $237 50; pretending that said claims, with interest and costs, are due upon and bear against property of petitioner,” etc. The petition contains no other jurisdictional allegations and the record is barren of any evidence as to the amount of costs due on said taxes at date of suit.

The plaintiff, who is appellant, claims that there were certain charges due on said taxes under express provisions of law which formed part of the claim for which the sheriff was about to sell the property. He specifies: 1. Collector’s fees of four per cent, under sections 16 and 17 of Act 98 of 1882; and, 2. Sheriff’s commissions for making- sale.

As to the first, it does not appear, under tlie terms of the law, that the same would have been collectible as costs from plaintiff, but for this injunction proceeding, since the law says: “ He shall be allowed four per cent on the amounts collected from tax sales, to be collected as costs, should he he prevented by injunction or otherwise from collecting said taxes and costs.” In other cases, the four per cent allowed the tax collector is paid by the State. Therefore, this item was not due at date of suit, but became exigible by reason of the suit.

As to the item for commissions, that would have become due only in case of actual sale.

The fee allowed in favor of the State’s attorney likewise arose only in consequence of plaintiff’s suit and must, likewise, be excluded in determining amount involved.

If we were to allow all the other items of costs mentioned in plaintiff’s brief, as estimated by himself, they would not be sufficient to bring the matter in dispute up to $1000, exclusive of interest.

Plaintiff has tiled an affidavit in this case, swearing in most general terms and without any supporting evidence, “that at the moment of instituting this suit the demand for taxes, fees, commissions, costs and printing, exceeded $1000.” Even if we were to consider this affidavit, it is obviously predicated upon the items above mentioned, which we have excluded.

No question of the legality or constitutionality of the tax is presented. On the contrary, the taxes are incontestably due by plaintiff, having been so finally adjudicated in a former suit. And this, we may say, inclines us to consider very strictly his attempt to prolong this litigation by the present appeal.

His pretension that our jurisdiction is to be measured by the value of the property seized, is without merit. He stands in the precise position of a judgment debtor seeking to enjoin the execution of a judgment against himself. Marsh vs. Briant, 9 Rob. 7.

In the case of Shannon vs. Lane, 33 A. 491, we said: “The assessment, the record of the delinquent list and the tax collector’s sale, are the precise equivalents of judgment, seizure and execution sale.”

He has only to pay the debt which it has been judicially determined he owes, in order to obtain complete relief. It is elementary that that debt is the measure of our jurisdiction.

Appeal dismissed at appellant’s cost.

Rehearing refused.


author: Manning, J.

text:
    No. 9193.
    The State ex rel. Morgan’s Louisiana and Texas Railroad and Steamship Company vs. The Judge of the Twenty-first Judicial District.
    While the range of cases in which writs of mandamus maybe issued is enlarged by the grant of supervisory power over inferior courts, it does not follow that that writ may be invoked always instead of an appeal. It would revolutionize our jurisprudence to hold that evory right that was formerly enforced by appeal and every wrong that was formerly redressed by appeal can now be enforced by mandamus when an emergency seems to require or invite it.
    A mandamus will not issue to compel an inferior judge to bond an injunction when he has refused to dissolve on bond. The remedy is by appeal.
    PPLICATION for Mandamus.

      D. Caffery and Leovy & Kruttschnitt for the Relator.

      R. S. Perry and Frank D. Chrétien for the Respondent.
   The opinion of the Court was delivered by

Manning, J.

Mrs. Jndice has obtained an injunction against the Morgan Railway, restraining it from constructing a switch through the town of Jeannercttc over a street dedicated to public use hy her, the construction being about to be made under color of an ordinance of the mayor and council of the town. The Railway Company applied to bond the injunction and the Judge refused, whereupon the Company seek hy this mandamus to comped him to dissolve the injunction on bond.

The decisions of this court, that the writ of mandamus will be issued by it only in aid of its appellate jurisdiction, may now he relegated to the judicial lumber-room, since the broad conferring upon us of supervisory powers hy the existing Constitution. Many articles of the Code of Practice, which until' then wore benumbed, have been quickened into beneficent life by the wand of that terse and comprehensive provision.

But while the range of cases in which we may issue this writ is thus enlarged, it does not follow that it may he invoked always instead of an appeal. It would revolutionize our jurisprudence to hold that every right that was formerly enforced by appeal and every wrong that was formerly redressed hy appeal can now ho enforced or redressed by man-damns when an emergency seems to require or invite it.

This court lias heretofore refused to compel an inferior judge to grant a writ of injunction. State ex rel. Beebe vs. Judge, 28 A. 905; State ex rel. Padron vs. Judge, 31 A. 794: State ex rel. New Orleans vs. Judge, 32 A. 594; although in a recent case we asserted our power to issue the writ for that purpose under our supervisory jurisdiction, State ex rel. Murray vs. Judge, and the refusal is placed on the ground that grant, ing au injunction is a judicial act, and a mandamus will not lie to coerce judicial discretion.

If granting an injunction be an act involving judicial discretion, it would seem that dissolving an injunction was equally such act. And the more, because it has been held that where the legal requirements have been complied with, the right to an injunction is absolute and the judge is without discretion to refuse it, Beebe vs. Guinault, 29 A. 795, while in the matter of dissolving an injunction the Code expressly declares “ the court may in its discretion dissolve the same.” Code Prac. art. 307. The language is imperative when provision is made for issuing injunctions — it ‘must be granted,’ Code Prac. art. 298 — but permissive when dissolving upon bond — ‘the court may dissolve’ and use its discretion whether it will or not dissolve. Indeed it has been held that a mandamus will not issue directing an inferior court to dissolve on bond, State ex rel. N. O. & Hav. Lot. Co. vs. Judge, 23 A. 766, but as the relator attacks that decision we preferred to examine the point without reference to that case.

There are numerous cases where a mandamus has been refused because the party has a remedy by appeal. State ex rel. Wise vs. Judge, 32 A. 977; State ex rel. Luminais vs. Judge, 34 A. 1114; et alii ut supra. The relator urges that the remedy by appeal is too slow, and that parties were relegated to that remedy under former Constitutions because of the lack of that supervisory jurisdiction which we now have, and which he conceives to have been given us in order that we may compel an inferior judge to decide as we should decide were the case before us on appeal. •

This would hew a short road between the lower and the appellate court that would soon be blocked by the crowd of travelling litigants.

In the first case that came before the present court wherein its supervisory power was invoked, an inferior court had granted an injunction against the City based upon the ground that its ordinance was null, and had considered and denied a motion to dissolve, so that this injunction was existing at the moment when the City applied for a counter injunction. The granting of the counter injunction would have had the same effect as the dissolution of the first. Held, the refusal to grant the counter injunction was under the circnmstsnees a judicial question proper to he decided according to the conscience of the judge, and the remedy was by appeal and not by mandamus. State ex rel. N. O. vs. Judge, 32 A. 551.

We do not rule definitively that we will not grant a mandamus whenever there is a remedy by appeal. We confine ourselves to the point presented in the case at bar.

The writ is refused.


author: Bermudez, C. J.

text:
    No. 8786.
    City of New Orleans vs. The Carondelet Canal and Navigation Company.
    A special statuto exempting property from taxation in 1858, is not repealed by tbe Constitution of 1879. N. O. vs. X^oydras Asylum, 33 A. 850, affirmed.
    An unqualified exemption by tlie State, implies an immunity from municipal taxation. Whenever tbe sovereign exonerates, be does so with munificence, unless restictions have been formally expressed.
    Under sectiou 9 of Act 74 of 1858, tbe capital stock of tbe defendant company is not liable to assessment and tax for fifty years.
    PPEAL from the Civil District 'Court for the Parish of Orleans. . Tissot J.

      L. O’Donnell, Assistant District Attorney, for Plaintiff and Appellant.

      H. D. Ogden for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The city appeals from a judgment respecting her demand for $351, city taxes, claimed from the defendant company.

The defense, which was sustained, is, that the stock on which the tax is assessed, is exempt from taxation.

In support of that position, the company points to section 9 of Act 74 of 1858.

The defendant corporation was created in 1857 (Act 160) and acquired the right, power, and authority to enter upon and take possession and control of the Canal Carondelet and Bayou St. John for the purpose of completing the works of improvements thereon and other privileges.

In view of the subsequent embarrassed condition of the company, and in apprehension of a discontinuation and abandonment of the undertaking and of consequent public calamity, the Legislature in 1858 passed tlie act invoked, section 9 of which reads: “That said canal and railroad shall he exempt from taxation during the period of fifty years.

It cannot he with plausibility claimed that the exemption was to operate technically, exclusively as far as the canal and the railroad were concerned. The canal was State property and of course as such, necessarily exempt. The railroad which the company was authorized to build, did not then exist and has never been constructed. The legislative intent was clearly to exonerate the property of the company, represented by its stock and the machinery used for the purpose of the contemplated improvement of the canal and bayou. It was tendered and accepted as an important inducement for the onerous undertaking in view, for the enhancement of the public good.

Evidently such has been the construction placed upon it by both the State and the city, as never heretofore has either one or the other claimed any tax from the company for the past twenty-five years.

The contention of the city, adverse to the immunity, rests on two grounds only:

1. The exemption was repealed by the Constitution of 1879.

2. If it was not, it applies to State taxes only, not to city taxes.

I.

The exemption was granted by a special statute, which the Legislature had the power to pass. In the case of the Poydras Asylum, 33 A. 850, we liad occasion to consider a similar question of exemption and we came to the conclusion that the Constitution did not contemplate or produce the effect claimed.

The reasoning and authorities collected in that case, are applicable to the present one.

We, therefore, held that section 9 of Act 74 of 1858 was not repealed by the present Constitution, and know of no law subsequently passed to the contrary.

II.

' The exemption is unlimited, .unqualified. It, therefore extends to all taxation, whether State or municipal. The reason , for which the exemption was accorded by the State, is equally strong in favor of a similar exemption from municipal taxation. When the sovereign emancipates, he does so munificently.

The corporation owns some' real estate, upon which a tax was assessed and paid. Such property was not within the purview of the Act of 1858, section 9, No. 74, and is not considered as exempt or claimed to he.

The exemption granted exonorates the stock and the stockholders. Burroughs on Tax, 342 ; Cooley on Const. Lim., 164.

The district judge correctly decided.

Judgment affirmed.


author: P.oché, J.

text:
    No. 8923.
    Mrs. Adèle Villars, Wife of Edouard Drouet, vs. Louis Faivre and Fred. L. Matthews.
    All issues presented by the pleadings in a cause and on which evidence is introduced on trial, will be considered as disposed of by a final judgment, although the latter be silent on one or more of the issues in the case, unless a special reservation is made in tho judgment.
    Heneo, in a petitory action, the judgment which decrees the litigated property to plaintiff, and is silent on che subject of rents and revenues prayed forin plain tiff’s petition, when it appears that evidence had been introduced on that demand, will be construed as an absolute rejection of the demand.
    Such a judgment will support the plea of res judicata to a subsequent action by the same plaintiff, for rents and revenues on the samo property, against the same defendant.
    A PPEAL from the Twenty-sixth District Court, Parish of Jefferson. l.\. Hahn, 3.

      Alfred Grima and H. N. Gautier for Plaintiff and Appellant.

      Alfred H. Hillings and Jos. H. Spearing foi Defendants and Appellees.
   The opinion of the Court was delivered by

P.oché, J.

Plaintiff has brought this suit for the recovery of rents and revenues on a piece of immovable property, which she revindica-ted through a judgment of this Court, rendered in March, 1882, in a suit which she had instituted against Louis Faivre, one of the defendants herein, in August, 1877. 34 A. 198.

At the institution of her petitory action she had caused the litigated property to he sequestered, and the defendant had thereupon released it on a bond of nine hundred dollars, with his co-defendant, Matthews, as his security.

Plaintiff prays, in this suit, for judgment in the sum of nine hundred dollars against the defendants in solido and for the further sum of thirty-six hundred dollars against the defendant, Faivre, individually.

She prosecutes tliis appeal from a judgment maintaining an exception of res judicata interposed bjr tlie defendants.

The plea is predicated on the following grounds:

In her petitory action, plaintiff had cumulated a demand for the rents and revenues of the property in litigation, which she fixed at $400 per annum, from August, 1877, to the time at which she would recover possession of the property.

She was east in the district court, and on appeal she was declared the owner of the property, hut the judgment of this Court contained no mention of or reference to the demand for rents and revenues, either in the reasons for judgment or in the decree. 34 A. 198.

It is conceded that the cause of action is the same, the parties the same, their capacities the same, in the two suits, in so far as the demand for revenues is concerned.

The contention turns upon the legal effect of the judgment of this Court, on the demand for rents, by reason of its silence on that subject.

Plaintiff argues that such silence means at most, and no more, a rejection of her demand as in case of non-suit; while defendants contend that, under numerous precedents furnished by our reports, such silence must be construed as an absolute and final rejection of the claim.

Plaintiff argues that no evidence was offered in her first suit, on the subject of rents and revenues, and that in the absence of such evidence this Court could not dispose of that issue which was, in consequence thereof, not passed upon. In this she is not borne out by the record, which does contain evidence on that subject sufficient in its character and scope to sustain a judgment on that point. It is true, as she suggests, that the point was not directed to the Court, either in the oral argument or brief of her counsel, and that such omission may have caused or superinduced the silence of this Court on the point. But this is not the pivotal question in the present discussion. We are not called upon to explain or determine the reasons which caused our silence on the subject, or to qualify it either as an omission or an oversight; the question involved is the legal effect of the omission to dispose of that issue which was one of the essential points in the controversy.

After mature consideration and a thorough examination of numerous decisions of this Court on the subject matter, we are driven to the conclusion that the legal effect of our judgment was an absolute rejection of the claim and that the plea of res judicata in this action was well taken.

Our jurisprudence lias rested on a solid foundation, the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation. Plaintiff quotes numerous decisions in support of the undisputed proposition that the appellate court is not bound in law to dispose of all matters contested and that the court may remand certain matters for a second examination in the lower court, or may reserve to the party pressing certain claims or demands, the right of urging the same in a separate action.

Such a ruling is of every day occurrence. It was doubtless the right of this Court to have made a similar disposition of plaintiff’s demand now under discussion. Under such a reservation her present action could not have been as much as clouded by a dream of a plea of res judicata. But unfortunately for her, such a reservation was not made and the question recurs to the legal effect of the silence of the judgment on, that portion of the demand in her previous suit. Under the circumstances of this case our jurisprudence places an insurmountable obstacle in the way of her recovery.

In the early case of Delatage vs. Pellerin, 3 Martin, 142, the idea of res judicata was successfully interposed to a claim for damages for the unlawful detention of a slave, on the ground that in a previous suit for the recovery of the same slave and for damages for the detention, the judgment had restored the slave to plaintiff, but was silent on the question of damages.

In the celebrated case of Saul vs. His Creditors, 7 N. S. 437, the Court reviewed previous rulings on the point and unreservedly affirmed the doctrine of the Delatage-Pcllerin case. The question there presented was the exposition of the legal effect of the silence of the judgment on a demand for interests urged in the pleadings, and it was held that the interests were refused by the judgment.

By way of illustration the Court therein distinctly asserted the doctrine as affecting fruits or rents which generally follow the judgment on the issue of title to immovable property. The doctrine was reviewed and reasserted in the following cases: Robertson et al. vs. Penn, 8 La. 64; Vascoeu’s widow vs. Pavie, 14 La. 139; Plicque & Lebeau vs. Perret, 19 La. 324; McMickin vs. Morgan, 9 A. 209; Spencer vs. Bannister, —; Brady vs. Ascension, 26 A. 321.

The rule that the silence of the judgment on any demand which was an issue in the case under the pleadings must be considered as an absolute rejection of the demand, came under the consideration of the present Court in a recent case, which seems to have escaped the attention of both counsel in the present suit. We refer to the case- of the Succession of Robert Anderson on the rule of C. M. Pilcher, 32 A. 581, in which we held that interest could not be collected on a judgment for money which by its terms was silent as to interest, although interest was’ legally due on the claim. In that case we had occasion to consider, and unqualifiedly reaffirmed, the doctrine laid down in the case of Saul vs. His Creditors.

We there held the following language, which is a fit conclusion to our reasoning in this opinion: “If the plaintiff in rule is holder of a judgment which unjustly denies to, and withholds from him, his legal right, it is a misfortune which might have been repaired before that judgment became final, but which is now past remedy.”

So with the plaintiff in this cause, whose counsel, by means of a timely application for a rehearing, might have obtained an amendment of our judgment in the petitory action, so as to secure a recognition, or at least a reservation, of her rights to rents and revenues.

His oversight, or our possible omission, may have exposed her to a great hardship, but it is now past remedy. We are in duty bound to follow the wise precedents laid down for the guidance of courts.

Appellees suggest our want of jurisdiction over the demand for nine hundred dollars against Matthews, the security on the release bond. Under the conclusions which we have reached and herein announced on the main issue in the cause, that question loses all practical importance. But it is, nevertheless, clear to our minds that under the pleadings no judgment could bo rendered against Matthews exceeding $1000, and that therefore we had no jurisdiction of the demand pressed against him. The fact that he was bound in solido with Eaivre cannot affect the question of jurisdiction. He- could not be held for more than $900; and the amount involved as to him is unquestionably the test of our jurisdiction as to his interest in the litigation.

The appeal, in so far as it concerns the judgment in favor of Matthews, is dismissed.

Por the reasons given on the main issue in this case, the judgment appealed from is affirmed, with costs.


author: Todd, J.

text:
    No. 9112.
    E. G. Randolph, for use etc., vs. A. L. Laysard.
    Where the plain tiff in a petitory action claims tlieland in controversy under a title which lie as serts was warranted hy the author ol‘ the defendant’s title opposed to him and that the defendant is thereby estopped from setting up his title against him, the fact of the warranty must ho clearly established and may he disproved hy evidence showing a distinct and continued acknowledgment of the titlo of deion4ant’s author hy those from whom or through whom the plaintiff claims.
    Such acknowledgment may also he opposed to a claim of title hy plaintiff based on presumption.
    Even where a title has been acquired hy proscription, it may afterwards he lost by su hso-quent adverse possession of the land, peaceable and undisturbed for more than two years, hy one holding a just title translative of tli© property.
    APPEAL from tlie Twelfth District Court,’ Parish of Grant. Barhim, J.

      M. Ryan, R. J. Bowman and J. O. Rycm for Plaintiff and Appellant.

      James Gr. White for Defendant and Appellant.
   The opinion of the Court was delivered hy

Todd, J.

This is a petitory action. The plaintiff claims that the land in controversy formed a part of two lots received in the partition of the estate of Joseph Gillard in 1829, hy Leander Lacour and wife, and John Baptiste Gillard and wife, respectively, and that hy mesne conveyances from them the. title to the same became vested in him, the plaintiff. He asserts title, also, hy the effect of warranty and the prescription of ten years.

The defendant resists the demand and sets up title in himself first, under an entry made of the land in 1830, hy Joseph Gillard, Jr., and a patent from the United States issued to him, and a regular chain of conveyances from his heirs to the ancestor of the defendant. He further pleads the prescription of ten years.

The two lots of land, described in the petition as the Leander Lacour and J. B. Gillard tracts, were a part ,of a league of land alleged to have been acquired hy one Colin Lacour from the Pascagoula Indians and to have been surveyed and located in 1829 hy one McCrimmons, and partitioned the same year among the parties in interest.

There was a survey made of this same league hy the United States, it is claimed hy the defendant, as early as 1816; and subsequently, in 1848, a resurvey. The private survey did not correspond with the one survey made hy the Government, and the consequence was that part of the land embraced in the league as located hy McCrimmons belonged to the qnxblic domain, as shown by the Government survey, which in our opinion fixed the true location of the league.

It is contended by the plaintiff’s counsel that a partition was made in 1829 between the different owners of the league as located by Mc-Crimmons, and in the plat of Ms survey, admitted in evidence, we find the boundaries of the several tracts or lots falling to the different proprietors under the alleged partition marked out. Admitting that there was a partition and that this plat correctly defined the several lots received under it by the several owners, witli the proper boundaries, then it will appear that some, if not all, of these lots or tracts extended beyond the lines of the league as located by McCrimmons, and took in or embraced public lands, or land, to which the title of the General Government had not been divested.

It is, however, denied by the defendant that there ever was a partition made of this league, and the admission of this plat or survey in evidence to show it, as well as all parol evidencé offered for the same purpose, was objected to on the grounds, substantially, that it was not the best evidence and that parol evidence was not admissible to prove title to real estate.

It should bo stated here that the judicial and notarial records of the parish of Rapides were destroyed by fire in 1864, and the land in dispute then lay in that parish, and subsequently was embraced in the parish of Grant after its organization; and in this latter parish, also, the records were burned.

In view of this circumstance, and the further consideration that there must have existed some kind of a partition among the original owners of this league, from the fact that they first owned it in indivisión when located and that soon after they possessed iu separate tracts, whose boundaries were partially given in all the early sales, conventional and judicial, made of these tracts, and moreover that the plat upon which these lots are marked, when offered, was in possession of the parish surveyor, and for many years previous in that of his predecessor; and by one witness it was shown to be a correct copy of a copy of the original survey, which had been destroyed in his possession: The plat, we think, was properly admitted. The parol evidence objected to related more to the possession of the land, and to that extent and for that purpose was admissible.

We do not believe, however, that there ever was a formal partition of the league, either judicial or conventional, made and recorded. No one testified to ever having seen it, and some of the parties who at times acquired one or more of these tracts, whilst the records were extant, procured copies of all the earlier titles appearing in the transcript, but not a copy of the partition.

II.

The qRea, of warranty advanced by the plaintiff in support of his claim to the land in dispute is founded on this alleged partition between the first proprietors. Among these' was Joseph Gillard, under whoso entry or patent the defendant derives his title. It is contended that neither Joseph Gillard nor any one holding under him, in view of the warranty implied in the partition, could urge a claim adverse to any of his co-partitionists or those deriving title from them, and that they were estopped from setting up title to any part of the tracts or lots falling. to them under the partition according to the metes and bounds appearing on the McCrimmons survey.

The entry made by Joseph Gillard mentioned embraced a part of the tract designated op. this plat as the Leander Lacour and J. B. Gillard lots, being a portion of the rear of said lots. This entry comprised fractional section 35, in which the land in dispute lies, and is called by the witnesses the “wedge.” It is as owner of these two last-named lots that the plaintiff asserts title to the wedge.”

Conceding that a warranty is as broad and far reaching as contended for by plaintiff’s counsel, that it is good even against the Government and can be used as an aggressive force for purpose of eviction as well as a means of resistance (propositions we need not here discuss), we have opposed to the effect and even existence of the warranty in this instance the following facts:

When it was found that the league, as located, extended in part over Government land, Joseph Gillard entered this section 35 and other sections, all impinging more or less on the league as McCrimmons had located it in his own name as early as 1830. It does not appear that there was any offer on the part of the proprietors of the other lots to share the expenses of the entries, nor of any opposition to the entries being made by Jasper Gillard exclusively for himself and in his name. On the contrary, we have the testimony of several witnesses, including one of the Gillards and one of the Lacours, descendants of the original proprietors, to the effect that this section 35 was never claimed by Leander Lacour or J. B. Gillard, or their immediate successors, but that the title of Joseph Gillard and his succession was acknowledged. In all the titles relating to these tracts, we find no description of any rear lines, and no mention whatever of section 35, which formed part of thena according to the McCrimmons plat, until we come down to the deed from .Henry M. Hyams to Judge Ryan, passed in 1857, in which there is the following reference to it, or the part of it covered by the land in controversy, to wit:

“The said Hyams refuses to give any warranty in case of eviction, even for any return of price, inasmuch as there exists a suit or suits against him in the parish of Rapides for the recovery of that part of the lands now conveyed, to the full knowledge of the said Ryan, who admits that he is aware of the danger of eviction and takes that part of the land now sold at his peril and risk.”

In the face of these facts, we feel justified in the conclusion that upon the discovery that the league was in part on the public domain, there was an abandonment of the respective claims under the partition beyond the point or line where the Government lands commenced. The facts proved are inconsistent with any other hypothesis, and we think the testimony of the witnesses relating to these matters was, under the circumstances, properly admitted. There is then no warranty or estop-pel that would entitle the plaintiff to a recovery of the land.

III.

In regard to prescription:

The plaintiff bases this plea on ten years’ possession of the land on the part of the original owners of the Leander Lacour and J. B. Gillard lots, and their successors, commencing and running from 1829, the alleged date of the partition.

The possession claimed rests mainly upon the contention that the disputed land was a part of the last named lots and that the actual possession and occupancy of the fruits of these lots gave or constituted possession of the whole.

Erom what we have said before, it is apparent that it is a controverted point whether the land in question did form part of these tracts. Beyond this description there is no satisfactory proof that there was any actual and continuous possession as owners on the part of the original proprietors from whom plaintiff claims, or their successors, upon which alone a title of prescription can rest.

IV.

Even, however, conceding that such possession had been shown for the time stated, could it prevail against the title and possession of the defendant?

It is rindisputed that tlie locus in quo is covered by the entry and patent of Joseph Gillard defendant’s author, and however the possession thereof may have been for the first ton years from the date of the entry, or even up to and beyond the time of the .sale from Ilyams to Ryan in 1857, it is certain that the defendant and his ancestors have been in the actual quiet and undisturbed possession of the premises from 1866 to 1881, when the suit was instituted, and under a title translative of property.

It is true that soon after Laysard acquired title in 1854, he instituted one or more suits against parties having or claiming possession of small fractions of the land. These suits lingered on the docket for years and finally the record of them was destroyed by fire and they were never revived, because the parties had abandoned the land; and finding the possession thus abandoned after the expiration of more than ten years from the filing of Ms suits, Laysard, unopposed, entered into the quiet and peaceable possession of the entire tract in dispute, and he and Ms descendants have held it undisturbed until the present time.

These suits cannot, therefore, in our opinion, be considered as having any bearing or disturbing effect on the ten years’ prescription pleaded by the defendant in bar of plaintiff’s action.

V.

Finally, when wo consider that the land was entered by and patented to the defendant’s author, and title thereto has been claimed ever since under such entry and patent, and actual and undisputed possession held by the defendant and his ancestors claiming thereunder for more than ten years; and when we consider further that in a petitory action a plaintiff must succeed upon the strength of his own title and not on the weakness of Ms adversary’s, we realize distinctly how comparatively weak and insufficient are the pleas of warranty and prescription upon which the plaintiff rests Ms demand, and how little they are entitled to prevail against the claim of defendant as presented, based upon a clear title and more than ten years’ undisturbed possession under it.

Judgment affirmed.

Rehearing refused.

Manning, J., recuses himself, having been of counsel.


text:
    No. 8390.
    Albert Shultz vs. H. W. Houghton.
    Evidence that a debtor, when presented with a long-standing account of large debits and credits, acknowledged generally an indebtedness, but declined to acknowledge the ac count, and said lie would have to look over his own papers, is not sufficient to interrupt prescription, since it left the debt claimed unacknowledged and open to free controversy.
    The acknowledgment required by the Code is an “acknowledgment of the right” of tho creditor, i. e., of the debt claimed.
    PPEAL from the Civil District Court for the Parish of Orleans. x ÜL Monroe, J.

      Olías. 8. Mee for Plaintiff and Appellee.

      H. W. Huntington and H. Jj. JDafour for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant is sued upon an account due in 1875.

His defense is a general denial and proscription of three and five years.

Evidence was offered to establish an acknowledgment of the account, for the double purpose of showing that it became an account stated, prescriptible only by ten years, and also an interruption of prescription.

For the first purpose the evidence is manifestly insufficient, since it appears from plaintiff’s own testimony that defendant never acknowledged the correctness of the account, but said he would have to look over his own papers.

It is claimed, however, that defendant made a general acknowledgment of indebtedness, which is sufficient to interrupt prescription.

The evidence on this point is of the vaguest and most general character, not pretending to give the language, or definite purport of the language used.

It is very clear the defendant never made an “ acknowledgment of the right” claimed by tho creditors, which was the right to claim the amount shown due by the account.

Non constat that after examining his papers he might not have disputed any indebtedness whatever, the account being one of large debits and credits.

The case is not nearly so strong as that presented in Lackey vs. Macmurdo, where the. Court said: “In estimating the effect to he given to the conversation above mentioned, it is proper to consider what is the effect of an interruption. The effect would be to destroy the conveyances which otherwise would have resulted from the lapse of time * * * and to give a new date as the starting point for the cause of prescription. * * * As, therefore, the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, that proof of an assent to such a change on the part of the debtor should be clear and unequivocal.” Lackey vs. Macmurdo, 9 A. 17.

So, in another case, it was held that an acknowledgment was insufficient, because “ho did not acknowledge his indebtedness to the appellant for the mioivnt of her claims.” Succession of Jewell, 11 A. 83; see, also, Ross vs. Adams, 23 A. 621; Marquez vs. Bloom, 22 A. 328.

It is perfectly clear that defendant in this case has never acknowledged “the right of the creditor,” i. e., the debt claimed by the creditor; but, on the contrary, declined to acknowledge it and loft it a matter of free and open discussion.

It is to be borne in .mind that the defendant contradicts most positively the evidence for plaintiff.

Tiie judge 'a quo maintained the plea of prescription and we see no reason to disturb his judgment.

Judgment affirmed.


author: MANNING, J. Todd, J. Poché, J.

text:
    No. 9129.
    H. McKnight, Administrator, vs. W. S. Calhoun and Ada Lane.
    "Where one is administrator of a succession which has a claim against him individually, or as unconditional heir of another decedent, prescription is suspended during the continuance of the administration.
    Prescription is likewise suspended as to such claim against one who is his co-heir, or who is hound with him in the same manner and for the sam e sum. A suit hy him, as administrator of one succession, against his co-heir in another succession, when their liability quoad this claim is the same, would he virtually a suit against himself.
    A claim against one for rents collected and received hy the connivance or consent of the administrator to whom they belonged, is likened to the responsibility of a negotiorum gestor rather than a wrong-doer, and the action to recover them is not ex delicto. The proscription of one year is not applicable thereto hut that of ton years.
    The doctrine: contro, non valentón agere non currit prescription ’ is not inconsistent with the laws of Louisiana, or repugnant to our system of jurisprudence, and will he enforced in proper cases.
    Opinions and dicta to the contrary must he considered as overruled. The decision in the Succession of Parmer, 32 A. 1037, affirmed.

      APPEAL from the Twelfth District Court, Parish of Grant. Barbin, J.

      R. P. Hunter, and R. J. Boiomcm for Plaintiff and Appellant.

      Jos. P. Homor and F. W. Balter for Defendants and Appellees.
   The opinion of the Court was delivered by

MANNING, J.

Meredith and Mary S. Calhoun were husband and wife. Their two children William and Ada are the defendants. Meredith Calhoun died 1869, and his son became administrator of his estate and continued so until 1882, during which year he was destituted and the plaintiff McKnight was appointed. Mrs. Calhoun had died in 3871, and the children, both majors, had accepted her succession unconditionally and were put in possession thereof.

In January 1883 McKnight, as administrator of Meredith Calhoun, brought this suit to recover the amount of certain debts which it is alleged the mother of the defendants owed at the time of marriage, and which had been paid by Meredith her husband during the community ; for improvements made on her lands by him during the same time; and rents of his lands alleged to have been collected by the defendant Mrs. Lane from 1873 to 1881.

Prescription was pleaded and sustained, and the plaintiff appealed.

If Mrs. Calhoun was thus indebted to her husband’s succession, the obligation was personal and subject to the prescription of ten years. The right of action accrued at the death of her husband in 1869, but prescription was suspended as long as William Calhoun was administrator of the creditor succession. No one could sue for the recovery of the claim but the administrator of that succession. He might have sued in the brief interval between 1869 and 1871, but when his mother died he became eo instanti one of her heirs, and by his unconditional acceptance of her succession stood in her place. Thereafter he must have sued himself if suit wore instituted. As administrator of his father he would have sued himself individually — his'individual liability accruing by virtue of his heirship of his mother.

The law neither authorizes nor countenances a proceeding so anomalous. Prescription having been thus suspended during the continuance of his administration, the suit was instituted almost immediately after its termination.

If prescription could not run in favor of William Calhoun' for the above reason, neither can it run in favor of his sister. If he had, as administrator of Ms father, sued Ms sister who is with him co-heir of his mother, for this alleged indebtedness, his allegations would he tantamount to a confession of judgment against himself. Because if Ms sister as his co-heir owes as he must have alleged her to owe, then he owed also in the same way and for the same reason and for the same sum. Every averment that he must have made to set out a cause of action against her would tell equally against himself, and the language he would have used to charge her indebtedness would charge his own indebtedness also. If then he cannot be required as administrator to sue himself, neither can he be required to sue his sister on a liability that he shares with her, and if the one cause suspends prescription so does the other.

The creditors could not have compelled the administrator to sue. His exception to a proceeding by mandamus would have been that if his sister was liable so was he, and that he could not by judicial process be forced into the position of plaintiff and defendant in the same suit at the same time.

Besides, this is not a claim that could have come to .the knowledge of creditors. It was not likely to be a.n inventoried asset of the succession, and could not be in the circumstances of this case. It was not a debt that, like a note for instance, was itself' evidence o.f its existence. It is a claim alleged to arise out of the acts of parties that created a legal liability, the existence of which could be known only to those who had access to the private papers of the deceased, like the administrator, or who knew from other sources what was the history of the property.

But if the creditors had the means of knowing the existence of this debt, the administrator would have answered the compulsory proceeding against him by denying that any obligation of the kind set out by the creditors had ever rested upon his mother, or upon his sister as one of the heirs, and this issue would have involved and necessitated the trial of the whole case in the mandamus proceeding. His personal interest to defeat the suit would conflict throughout with his dutjr as plaintiff, for it is quite impossible to have separated his own interest from his sister’s, and though she would nave been the only nominal defendant, Ms interests would be so inextricably bound up with hers that he would be a real defendant as much as she was. So that we get back at last to the substantial reason why he could not be compelled to sue his sister, i. e. he would virtually be suing himself.

If prescription was not suspended under those circumstances, the creditors would be remediless and must stand conscious but silent witnesses of that lapse of time, which was gradually taking from them their redress without-the power to arrest its progress.

The claim against Mrs. Lane for rents of Meredith Calhoun’s lands received by her without any alleged opposition from his administrator cannot he regarded as an action ox delicto. She may reasonably be presumed to have received them under some color of right, and her position would be more likened to a negotiorum gestor than to a wrongdoer. The prescription of one year is not therefore applicable thereto, but that of ten years, which had not expired.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, the plea of prescription is overruled, and the cause is remanded to be proceeded with according to law, the defendants and appellees paying costs of appeal.

Disseoting Opinion.

Todd, J.

I concur in the opinion just read in every respect, save in that part of it overruling the plea of prescription interposed by Mrs. Lane to the demand against her as heir of her mother, Mary S. Calhoun, and think that her plea, to this extent, should have been sustained.

More than ten years had elapsed from the death of Meredith Calhoun and the opening of his succession, to which the debt was alleged to be due, and also, more than ten years from the death of Mrs. Calhoun, whose succession was charged with owing the debt, and I cannot see that prescription as to Mrs. Lane, co-heir of the latter succession, was suspended from any cause recognized by law.

There was not, in my opinion, at any time during this prescriptible term any legal obstacle in the way of a suit against her for her share or portion of the alleged debt.

The succession of Meredith Calhoun was regularly opened, an administrator appointed to it, whose right and duty it was as its legal representative to prosecute all claims in favor of it, and who could have been compelled to do so, if necessary, by creditors and other parties in interest.

The mere fact that the administrator might have felt a reluctance to sue on this claim for reasons and apprehensions personal to himself, should not and did not, in my opinion, have the slightest bearing on the rights of Mrs. Lane, with respect to the prescription of this debt. It was a matter of no concern to her, brought about by no fault of hers and by which she could not be affected.

I, therefore, dissent from this part of the decree and the reasons adduced in support of it.

Fenner, J. concurs in this opinion.

APPLICATION POE REHEARING.

Poché, J.

This is a suit by the administrator of the succession of Meredith Calhoun on an alleged indebtedness due by the succession of his wife, Mary S. Calhoun, and it was brought against the defendants, as her sole heirs, who had accepted her succession.

In overruling the plea of prescription, we held that prescription had been suspended quoad W. S. Calhoun during the time that he was the administrator of his father’s succession, for the reason that being personally a debtor, by liis right of inheritance from his mother, he could not sue himself and that, for the reason that every allegation and proof of indebtedness against his co-heir, who was alike responsible, would affect his interests, proscription had likewise been suspended in her case; a suit against her, on such cause of action, being practically a suit against himself.

Her counsel charge, with great confidence, that our ruling involves a discovery of a means of suspending prescription hitherto unknown to our laws.

But, being forcibly reminded, by their knowledge of jurisprudence, of the doctrine of “ contra non valentem) etc., which had been practically recognized in the early stages of our jurisprudence, they hastily retreat on the position that the doctrine is inconsistent with the spirit of our legislation, and they intrench themselves within the protection of the decision in the case of Smith vs. Howard, 21 A. 67, in which the Court, as then composed, laid down the opinion that the doctrine had no application in our system of jurisprudence, which admits of no other mode of suspending prescription beyond the means enumerated in the Civil Code.

It is evident that counsel have npt yet considered the decision in the case of the Succession of Farmer, 32 A. 1037, which unreservedly recognizes the doctrine and has thus restored jurisprudence to the former position occupied by this Court.

We must adhere to the conclusion that the doctrine finds its application in the case now before us.

A second examination of the question as to the nature of the demand against Mrs. Lane, for an account of rents collected and appropriated by her, lias served to confirm our conclusion that the action is not ex-delioto. We are clear in our conviction tliat when she collected those rents, Mrs. Lane conscientiously believed that she had a legal right thereto. We refuse to entertain the charge implied in the argument of her counsel, that she deliberately, wilfully and wrongfully appropriated money to which she knowingly had no claim or right.

Rehearing refused.

Justices Todd and Fenner adhere to their dissenting opinion.


author: Beiimudez, C. J. Poché, J.

text:
    No. 9138.
    Samuel H. Smith vs. A. M. Haas.
    A tenant who quits promises, to which he claims to have obtained a new lease, and which he declares he has left because ordered to do so by his landlord, cannot successfully claim damages for an illegal and wrongful ejectment.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackman, J.

      Thos. Overton and Thorpe, Peterman & Thorpe for Plaintiff and Appellee.

      Oullom & Coco for Defendant and Appellant.
   The opinion of the Court was delivered by

Beiimudez, C. J.

This is an action in damages for an alleged violation of a contract of lease, consisting in a wrongful ejectment of the tenant and taking possession by the land owner.

The defense is a denial of the lease and of any wrongful act.

From a judgment against him, for part of the claim, the defendant has taken this appeal.

An examination of the testimony has failed to satisfy us of the existence of the contract of lease relied upon.

The testimony of the plaintiff is vague and uncertain and is uncorroborated by that of the two witnesses who were brought forward for the purpose of fortifying it, while that of the defendant is clear and positive enough to leave no doubt on the mind.

If the lease ever was agreed upon, it was surely subsequently abandoned. It would have begun at the expiration of the previous one, that is: on January 1, 1883; but, when asked why he had left, plaintiff, himself, says: that it was because the defendant had told him he should not worlc the place any longer; that he had asked him to remain longer but that defendant would not do so.

The district judge thought there was a preponderance of direct and circumstantial evidence in favor of plaintiff, showing that he had made a contract of lease with defendant, of the premises, for the year 1883.

We have weighed the scattering evidence and fail to perceive how it can be unified and systematized so as to establish the contract which, under the circumstances, should have been proved by conclusive testimony. We think that defendant is not liable to the claim against him.

It is, therefore, ordered and decreed that the judgment appealed from be reversed and that plaintiff’s demand be rejected, with judgment in favor of the defendant, with costs in both courts.

On APPLICATION FOB REHEARING.

Poché, J.

Plaintiff wishes this case to be re-opened for the purpose of reserving his rig-lit to claim of defendant the value of some seven acres of seed cane which he had put down for the cultivation of defendant’s lands in 1883, and which he charges defendant to have appropriated ^ince the trial of this case in the district court.

The value of that cane formed an element in his demand for damages and to that extent it is covered by our judgment but no further, and, therefore, our decree could be no bar to his claim for the value of the cane alleged to have been taken and used by the defendant.

Such a demand proved no part of the issue made in' the pleadings and disposed of by our decree — hence, wo are not concerned with it in the present case, and have no authority to make any order or reservation touching the same.

Our judgment must, therefore, remain undisturbed.

Rehearing refused.


author: Poohé, J. Bermudez, O. J.

text:
    No. 9123.
    C. E. P. Calhoun vs. H. McKnight, Administrator.
    A party alleging himself to "be a creditor of a succession, and praying in that capacity for an increase of the administrator’s bond, cannot be required to furnish the same conclusive proof of his claims which would be exacted of him if he was suing for the recovery of his claims. Our law looks with favor on proceedings intended to scrutinize the conduct of administrators, and to increase tho security of creditors and of other persons interested.

      An administrator ■will he required to furnish, a new bond, so as to cover newly discovered property, and to the full extent of the value of the whole succession property as shown by a supplemental inventory provoked by the administrator himself.
    An administrator should not be required to furnish bond on the basis of an inventory in which property was inadvertently included which was not owned by the deceased, but which was judicially declared to belong to a different party,
    Although the amount ot the bond be fixed by the Supreme Court, an inquiry as to the ownership and value of such property can bo instituted in the lowor court, which has power to reduce the amount, where authorized to do so, subject to the right of the party aggrieved to have the action reviewed on appeal.
    APPEAL from the Twelfth District Court, Parish of Grant. Harbin, J.

      Thorpe, Peterman cD Thorpe for Plaintiff and Appellee.

      li. J. Bowman and lí. P. Hunter for Defendant and Appellant.
   The opinion of the Court was delivered by

Poohé, J.

Alleging that she is a creditor of the succession of Meredith Calhoun, plaintiff suggests that since the defendant furnished his bond as administrator of said succession, new property has been discovered as belonging to, and has been at his instance inventoried in, the succession; hence, she prays that he he required to furnish additional security commensurate with the value of the estate as shown by the last inventory thereof.

The main defense is a denial that plaintiff is a creditor of the succession, coupled with the showing that a considerable portion of the succession property has been sold at probate sale and the proceeds thereof applied to the payment of debts.

The district court ordered the administrator to furnish a bond of $10,993, in addition to the bond of $7000 which he had furnished at the time that he was qualified as administrator.

Prom that judgment he has obtained a suspensive appeal.

Appellee’s motion to dismiss the appeal cannot prevail. It is predicated on the provision of law which regulates that judgments of this character are not suspended by appeal. C. P. art. 1059. On that ground appellee might, by a proper proceeding, have resisted the order for a suspensive appeal, hut it cannot justify the dismissal of the appeal itself. The appeal is properly before us, and without deciding whether it suspends the judgment or not, we must entertain it.

In support of her allegation that she is a creditor of the succession, X>laintiff introduced the written transfer of several judgments originally held by third parties against the succession. Defendant contends that no proof haying been adduced of the authority of the agents and attorneys of record to execute such transfers, plaintiff has failed to show that she was the true and lawful owner of such judgments, or that she is a creditor of the succession. Plaintiff is not suing to enforce payment of her alleged claims, or to obtain an absolute or final judicial recognition of the validity of her ownership of the same, and hence she cannot be held to the rigorous proof of her claims which the defendant contends for.

Our law looks with favor on all proceedings tending to investigate the official conduct of administrators and to secure the fidelity of their administration, and the rights of creditors and of other persons introduced. Hence, it discountenances all technical objections to such proceedings. McComas vs. Rengville, 4 A. 123; Succession of Frazier, 33 A. 594.

We find sufficient evidence to authorize plaintiff to enforce the rights conferred to creditors under the provision of our law which she invokes in this matter. E. S. sec. 10.

The supplemental inventory taken in the succession shows property consisting exclusively of lands, appraised at $24,188. True, it includes some of the property previously inventoried, but defendant cannot complain of that feature of the inventory which was made at his instance and under his directions. It does show the amount of the property belonging to the succession and should be the basis of his bond.

The necessity of a bond to cover the full amount of the inventory is not altered or affected by the fact that portions of the property have been converted under a probate sale into money and bonds. The administrator is equally responsible to the creditors and heirs for such funds and assets as he was for the property inventoried before it was sold.

The district judge does not inform us on what basis of calculation or authority of law, or upon what reasoning, he has fixed the amount of the additional bond at $10,993. Hence, we cannot say whether he erred or not from his own stand-point. But we find an inventory showing an aggregate of $24,188, and we know that the law exacts a bond of one-fourth above that amount. Appellee has prayed for an amendment of the judgment in that particular and we think him entitled to it.

The judgment appealed from is, therefore, amended so as to increase the amount of the bond required of the administrator to one-fourth over and above the sum of twenty-four thousand one hundred and ciglity-eight dollars; said bond to be in lieu and stead of his original bond of seven thousand dollars, or at his option a bond which, added to the $7000 bond already furnished, would equal the amount of the bond herein required} and said judgment as thus amended is affirmed, at appellant’s costs in both courts.

Manning, J., talces uo part.

Oh Application eor. Rehearing.

Bermudez, O. J.

The only serious ground of complaint against the judgment previously rendered seems to be that, in the computation of the amount of the bond which the administrator is ordered to furnish, the court has not excluded from the inventory property therein inadvertently embraced as owned by the deceased, which had been judicially declared to belong to Mrs. Lane and which is valued at $10,000.

This defense was not urged when the case was first submitted to our consideration. Strictly, it should not be noticed.

The record does not verify the fact advanced by the defendant.

It is true that there are one and even two judgments recognizing certain real property as belonging to Mrs. Lane, but they do not contain such a description of it as can enable the Court to identify it with any land described in the inventory.

Even then, the inventory does not show that the property is worth $10,000. Reliance is placed on the testimony of the defendant to show this value. He simply says that there must have been seven to ten thousand dollars’ worth of land.

This is not, assuredly, such a valuation as can serve as a basis for a proper computation of the bond to be given.

We think, however, that justice forbids that the administrator should be required to furnish a bond to answer for property which does not belong to the succession in his charge, although the bond in such a case would be an idle formality. We will, therefore, while maintaining our previous decree, reserve to the appellant the right to have it determined by the lower court whether or not 'the property unquestionably belongs to Mrs. Lane, and what is its exact value on the inventory; and were the court to find in his favor, to reduce the amount of the bond fixed by this Court, without prejudice to the rights of the plaintiff to have the findings of the district judge reversed on appeal.

With this reserve, the application for a rehearing is refused, with costs.

Manning, J., takes no part.


author: FeNNBR, J.

text:
    No. 9143.
    Zuberbier & Behan vs. Mrs. Julie Robin & Son.
    Where plaintiff sues for $748 31 and defendant reconvenes for $784 57, neither claim is within our jurisdiction. In this case, after answer filed to original demand, plaintiff filed an amended petition claiming $259 additional, but this claim was never put at issue by answer or default. It moreover appears from plaiutiff’s pleadings that he judicially admitted that his original claim should be reduced to $148 31, which would exclude our jurisdiction, even if we entertained the amended petition.
    APPEAL from the Twenty-third District. Court, Parish of Iberville. Pope, J.

      Chas. O. Lmime for Plaintiffs and Appellants.

      Matthews for Defendants and Appellees.
   The opinion of the Court was delivered by

FeNNBR, J.

We are manifestly without jurisdiction of this appeal.

The original petition of plaintiffs claimed from defendants a principal sum of $748 31, and by amended petition they claimed a further sum of $259.

The answer of defendants, filed before the amended petition, claimed that they were entitled to additional credits by plaintiffs, which would leave the latter indebted to them in the sum of $784 57, for which they prayed judgment in reconvention.

Interventions were filed by various persons, the nature- of which need not be stated, as they were dismissed and interveners have not appealed.

But in their answer to the interventions, plaintiffs judicially admit that of the credit claimed by defendants, six hundred dollars was due, and say: “That your respondents are not indebted to J. Robin & Son; that, on the contrary, said Robin & Son are indebted to your appear-crs, after deducting value of contents of store, (say $600), and as matters now stand between your appearers and them, in the full sum of $148 31” — being exact difference between amount of their claim in the original petition and the $600. This pleading, filed before trial, was a judicial admission ^reducing the claim against defendants below our jurisdiction, even if we considered the claim in the amended petition, and the claim of defendants against them was equally deficient.

We liave carefully examined tlie record without finding that the claim in the amended petition was ever put at issue by answer or default, and it is, therefore, not before us.

It results, that under every view we are without jurisdiction, neither the principal demand nor that in reconvention being in excess of $1000. See Lamorére vs. Avery, 32 A- 1008.

It is, therefore, ordered that this appeal be dismissed, at appellants’ cost.

Rehearing refused.


text:
    No. 8600.
    City of New Orleans vs. Frederick Apken.
    Where nothing in the pleadings of the parties nor in the entire record informs the Court that the subject matter is within its jurisdictional amount, the Court proprio matu -will dismiss the appeal.
    The fact of its jurisdiction must be made affirmatively to appear.
    PPEAL from the Civil District Court for the Parish of Orleans. R/iglvtor, J.

      Wynne JHogers, Assistant City Attorney, for Plaintiff and Appellee.

      J. Bwisson and G. Diupkmtier for Defendant and Appellant.
   Tho opinion of the Court was delivered by

Todd, J.

The defendant appeals from a judgment perpetuating- an injunction taken out by the city against his keeping a dairy and stable at the corner of Toledano and Annunciation streets, in alleged violation of certain city ordinances.

Since the filing of the transcript the appellant has made no appearance in this Court and submitted no argument, oral or written, in support of his appeal.

We have examined the record and find in the pleadings no allegations touching the value of the business, against which the proceedings is directed, and no averment of any amount in dispute and nothing in the evidence even that would afford the slightest ground for an inference that the case is within our jurisdiction. This fact must he made affirmatively to appear from the record. The appeal is, therefore, dismissed.


text:
    No. 9077.
    Succession of Joseph Touzanne.
    On Opposition of Heirs.
    Where there is hat one decree, and two appeals are taken from it hy different persons, hat one transcript need he filed, and it matters not which appellant files it.
    The commissions of an administrator of a succession are. forfeited hy mal-administration.
    Where the assets of a succession consist alone of money, of which the administrator refuses to render an account, until it is extorted from him through repeated orders of court and under pressure of a rule for contempt, every thing will he construed against him, and the heirs shall have judgmont for the sums found to he due hy him v ith ten per centum per annum interest thereon.
    Heirs are not remitted to a direct action against the administrator of their ancestor’s succession to recover the sums he owes them The proper and natural place'for such demand is on the succession proceedings hy opposition to his account, or hy invoking the compulsory process of the court to compel him to filo an account when he has failed to file
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Kahn, J.

      James J). Augustin for the Administrator, Appellee.

      Ghas. A. Baquié for the Heirs, Appellees.
   On Motion of Heirs to Dismiss.

The opinion of the Court was delivered hy

Manning, J.

Judgment was rendered against Denis Meng, the administrator, on the opposition of the heirs to his account, from which he appealed. The ground of the motion is that he has appealed as administrator from a judgment against him in favour of the succession.

The appeal bond is signed in his individual capacity, aud the motion for appeal recites that, it is made for Meng against whom judgment has been rendered,” etc.

Motion refused.

On Motion oe Administrator to Dismiss.

The opposition of one of the heirs was dismissed below, and she appealed. The administrator’s motion applies to this appeal. The ground is that she has not brought up a transcript.

It was needless for her to do so unless Meng had failed in doing it. She took the risk of his filing his transcript. There was but one decree, and both appeals are taken from it, and is there,fore, unlike Sue. Clair-taux, where there were two judgments.

The motion is refused.

ON THE MERITS.

Joseph Touzanne died in August 1877 unmarried and intestate, his only heirs being his mother, and a half-brother. It was not until December 1878 that his succession was opened, when Denis Meng obtained administration thereof on the representation that he was a creditor. .The inventory contained but one item, eleven hundred and seventeen dollars and eighteen cents, cash on deposit in a Saving's Bank in New Orleans. Meng received this sum from the Bank. The deceased owed nothing. The administrator rendered no account.

After waiting añore, than four years the heirs obtained an order in February 1883 for the administrator to account within ten days. Personal service was made of the order, and the order was disobeyed. In May following, the heirs, suggesting this disobedience, obtained a rule on the administrator to show cause why he should not be punished for contempt, upon service of which ho appeared, and the court did not punish him for contempt, but again allowed him ten days to file his account. He paid no more attention to this order than to the first, but on June 4th, filed sundry exceptions to the proceedings, and an answer pleading prescription, and averring that he took the administration only to serve the mother, and that after paying some costs he had loaned out the residue of the sum received from the savings bank, and the mother had regularly received the interest thereon. No account was offered.

Two days afterwards a second rule for contempt was issued, and this extracted from him a ‘schedule’ wherein the charges against the succession amount to $125.80 and a statement is made that the residue of $991.38 was invested by the instructions of the mother — these two sums aggregating the amount received from the savings bank. No vouchers were produced.

Oppositions were filed to this schedule (standing for an account) alleging that the administrator had received other sums belonging to the deceased, viz $500 cash found in his wardrobe, and $550 collected by the administrator from one Sarpy, the amount of a note due the deceased by the latter. The proof shewed that he had received them.

The administrator’s commissions were also opposed as having been forfeited by mal-administration, and every other item for non-production of vouchers. The lower court rejected the item of forty dollars, cost of a visit of the administrator to New Orleans, allowed the other charges, increased the debit of the administrator by the sum of $1,050, and gave judgment in favour of the brother for three fourths of the sum tlms found to be due with ten per cent, interest, and dismissed the opposition of the mother with reservation of her right of action against Meng.

We shall reject the item of commissions, and allow the sums paid the lawyer, notary, appraisers, a,nd clerk, which only aggregate $49.95, and terminate the controversy by giving the mother a’judgment. The iiccount is thus stated:—

Amount received by administrator fr.om savings bank. $1,117 18

Amount received by administrator cash and for note. 1,050 00

$2,167 18

Deduct charges allowed. 49 65

$2,117 23

One fourth to mother.$ 529 30

Three fourths to brother. 1,587 93

-$2,117 23

It would break the force of this plain narrative to comment upon the administrator’s concealment of the sum found in the deceased’s armoir and that collected from his debtor — upon his persistent refusal to account to the court for anything — and upon his plea in defence that the heirs had mistaken their remedy, and should have brought a direct action against him. He has mistaken his duty, palpable and urgent as it was, to make a clean exhibit of what he knew he had received of the dead man’s effects, and to make haste to deliver it to his heirs.

It appears from his own testimony that he has paid the mother interest up to-and including 1881. Therefore

It is ordered and decreed that the judgment of the lower court in favour of Zephirin Lavergne be amended so that he have judgment against Denis Meng for fifteen hundred and eighty-seven dollars and ninety-three cents with ten per centum interest thereon from January 23, 1880. And it is further ordered and decreed that the judgment of the lower court dismissing the opposition of Adeline Lavergne is avoided and reversed, and it is now adjudged that she have and recover of Denis Meng five hundred and twenty-nine dollars and thirty cents with ten per centum interest thereon from January 1st, 1882, and that said Meng pay all costs in both courts.

Rehearing refused.


author: Be:;mudez,'0. J.

text:
    No. 8982.
    Henry Denegre vs. P. S. Moran.
    An appeal will not be dismissed whore the transcript, in an injunction suit, contains all the proceedings had and all the documents filed therein, and the judgment appealed from is one sustaining peremptory exceptions.
    If it was irregular to file the petition for an injunction, under the number and title of the case in which the judgment enjoined was rendered, the defendant in injunction should have excepted below. Not having done so there, he cannot object in this Court.
    In the absence of any charge and proof, that a transcript is incompleto by the fault of the appellant and where it does not itself appear to be deficient and where the clerk’s certificate is in proper form and the record is such that the court can pass upon the case, the appeal will not be dismissed.
    The Supreme Court has no jurisdiction over a suit in nullity, to annul a judgment rendered in a case in which the amount in dispute is less than one thousand dollars. It is immaterial what the grounds of nullity be. A claim in damages for a larger amount does not give jurisdiction to annul the judgment.
    A PPEAL from the Civil District Court for the Parish of Orleans. t\. Bightor J.

      Bayne & Denegre for Plaintiff and Appellee.

      Gibson, Wall & Montgomery for Defendant and Appellant.
   On Motion to Dismiss.

The. opinion of the Court was delivered by

Be:;mudez,'0. J.

The appellee moves the dismissal of this appeal, on the grounds:

1. That it was taken from a judgment in one case, and that the transcript filed here, is that of another case; and

2. Further, that the clerk does not certify the transcript as containing all the proceedings had, etc., in the case in which the appeal was asked and granted.

The appeal is taken from a judgment dissolving an injunction obtained to arrest the execution of a money judgment and to annul that same judgment. The motion and the bond of appeal describe the judgment appealed from, as rendered on April 10, 1883, and signed on May 5, following, in case No. 8087 of the Civil District Court. That judgment is in the transcript.

When the petition for an injunction was filed below, it was not docketed under a distinct number or given a different title. It was filed in the record in which the money judgment was rendered, under the number and the title of the case, 8081. No exception was made, in the lower court to that course, if objectionable, on the contrary, the de-femes set up were filed, under the number and title of the main suit. It is too late to urge such objections, at present, in this Court.

The motion and the bond of appeal are very precise in describing the judgment appealed from. It is not pretended that there are two judgments answering that description in the case bearing No. 8081. Tlie motion and the bond cannot, therefore, be attacked on the ground of vagueness.

The transcript before the court begins with the petition for an injunction. It continues with the exceptions, the minute entries, the judgment, a motion for a new trial, the motion and bond of appeal, and concludes with a certificate of the clerk that it is a true, correct and complete transcript of all the proceedings had, etc., in the injunction suit, in this (the lower) court, and now in the records thereof under No. 8081.

It is, therefore, evident that the transcript before this Court, is that of the case in which the judgment rendered and appealed from was rendered, and that the clerk’s certificate is such as it should be. It could not correctly be otherwise.

The appellee does not charge that the transcript is defective by the fault of the appellant, and does not specify in what particulars it is incomplete.

On its face, it appears to be such as the law requires, and such as will enable the court to pass on the peremptory exceptions filed, and sustained, and under which it does not appear that any evidence was offered.

It is, therefore, ordered that the motion to dismiss be overruled.

ON THE MERITS.

This is an action by the original defendant for the nullity of the judgment rendered against him, the execution of which he has arrested by an injunction.

The grounds relied upon are that, that judgment was rendered for $1049 73, when the amount in dispute was $927 only.

That the judgment thus rendered was signed on the third judicial day following' its rendition.

The plaintiff in injunction alleged damages, sustained by him, amounting to $1100.

Exceptions were filed to the petition for an injunction on the following grounds:

No cause of action, res judicata and prescription.

Tlie exceptions were fixed for trial and a rule to dismiss assigned for tlie same day.

There -was judgment dissolving the injunction without damages. Prom that judgment, Moran appeals.

The lower court did not pass, nor could it, on the claim in damages, so that this matter is not now before us.

In the suit, between the same parties, 35 A. 346, this Court proprio motu dismissed the appeal from the judgment now sought to be annulled, for want of jurisdiction.

If this court has no right on appeal to revise the judgment for that reason, it passes strange that its power should be invoked to annul it.

It can no more annul it than it could one rendered by a justice of the peace.

The attempt to engraft on the suit in nullity, a claim for eleven hundred dollars damages, founded or not, cannot produce the effect of giving to this Court a jurisdiction to annul the judgment which it would not otherwise possess. H. D. p. 20, No. 8; L. D. p. 14, No. 1; p. 15, No. 16; 33 A. 1072, 1085.

It is immaterial on what grounds the nullity is asked. It suffices that the Court be called upon to annul a judgment in an unappealable case.

It is, therefore, ordered and decreed that the appeal herein be dismissed, with costs.


text:
    No. 8919.
    J. B. Camors & Co., vs. Thomas A. Madden.
    In a contract of sal© for the delivery of a commodity at a certain time, the vendor who notifies his vendee at about the time of delivery of his inability to fulfill his contract, relieves the latter of tlie legal obligation to put the vendor in default.
    The defaulting vendor is therefore liable for damages, the measure of which is the difference between the price stipulated in the contract of sale and the enhanced market price of the commodity at the time he made default.
    APPEAL from the Civil District Court for the Parish of Orleans. lissot, J.

    P. E. Théard & Sons for Plaintiffs and Appellees.

      Jonas & Nixon for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs’ object in this suit is to recover damages for the inexecution of a contract of sale. They charge that on the 12th of July, 1881, the defendant so]d to them ten car loads of Nicaragua hard wheat, on sample, at 954- cents a bushel, for prompt shipment, and that he made default, thereby causing them damages in the sum of $1200.

The defendant pleaded the general issue, and he has taken this appeal from a judgment of six hundred and twenty dollars against him. His main contention on appeal is that the contract which he made with plaintiffs was not an absolute, but merely a conditional sale, without stipulation as to the time of delivery, and that the damages allowed by the district court are excessive.

The evidence amply supports plaintiffs’theory, which is as follows: That the contract was an absolute sale, binding on both parties, and that the wheat, which was known to be in Texas, was to have been shipped from that point, at most, three days after the date of sale, to this port, where it should have been delivered on or about the 25th of the month, in ample time for delivery on board of a ship sailing for Prance on the 30th of that month, on which they had retained freight room for the wheat which they had purchased from the defendant. As early as the 15th of July, the defendant informed them that he was unable to fill his contract, hut he was urged to continue his efforts. However, on the 27th of July, he finally notified them of his absolute inability to deliver the wheat.

That formal notification to plaintiffs relieved them of the obligation to put the defendant in default.

Under this state of things plaintiffs are clearly entitled to damages, and the measure of the same is the difference between the price stipulated in the contract of sale and the ruling market price at the time that default was made.

On that point the evidence is somewhat conflicting, a circumstance which is due to the absence of regular reports of that kind of wheat on this market. The testimony, in fixing the acknowledged advance of the commodity, varies from five to thirty cents per bushel. The district judge concluded that the advance was 154 cents, and he must have based his conclusion on a wheat transaction reported by one of the witnesses, a dealer in grain, who stated that at the end of July he closed a transaction at the rate of $ 1 11 a bushel for a first quality of Nicaragua hard wheat. Under that testimony, which certainly affords a very reliable test of the market price of that commodity at the very time that defendant made default, the judge correctly held the defendant liable for damages at the rate of 154 cents per bushel for 4000 bushels, which is shown to be the average capacity of ten oar loads. C. C. 1934; Vance vs. Tourné, 13 La. 225; Gauthier vs. Green, 14 A. 788.

His conclusions are supported by the evidence and are sanctioned bylaw and equity. They are also ours.

Judgment affirmed.