text:
    No. 13,684
    Lezin A. Becnel vs. The Ashton Plantation Co., Limited.
    Syllabus.
    1. The defendant company engaged and employed the plaintiff, as manager and superintendent of its plantation, and the railroad connected therewith, for the term of ten years, to begin on January 1st, 1891. The plaintiff was to be paid for his services annually the sum of twenty-five hundred dollars. The contract stipulated that the company could, at any time, terminate the contract, and be released from its obligations, by going into liquidation. The company went into liquidation on the 3rd of February, 1899 ; the plaintiff, as a stockholder, voting therefor. The plaintiff sued for salary for the whole year.

      Held — The plaintiff’s ground is not well founded. He was not sent away by the defendant; his employment ended under the terms of the contract. There is no question of reconduetion involved. The contract authorized the splitting of the year’s employment into parts, and under the exercise of this right the plaintiff could only claim salary from the beginning of the year up to the date of liquidation.

      APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Samuel L. Gilmore and Clegg & Quintero for Plaintiff, Appellee.

      Robert G. Rugue for Defendants, Appellants.
   The opinion of the court was delivered by

Nicholls, O. J.

Statement of the Case.

Nicholls, C. J. The plaintiff asks judgment against the defendant company for seven thousand-two hundred and eighty-five dollars upon allegations that on the 22nd day of January, 1897, he entered into a written contract with said company, by the terms of which he was engaged and employed as manager and superintendent of the Ashton Plantation Company, Limited, and of the Iiahnville and Boutte Railroad Company, for the term.of ten years beginning on the first day of January, 1897; that under the terms of said contract petitioner was to be paid for his services, annually, the sum of $2500.00, and upon the payment by the Ashton Plantation Company, Limited, 'of a debt of $60,000.00, which it was represented to petitioner was due by said company to one A. H. Morris, petitioner was to receive as additional salary one-sixth of the profits made yearly by the said Ashton Plantation Company, Limited, in addition to the sum of $2500.00 aforesaid.

That he duly entered into and properly performed his duties as manager and superintendent of the Ashton Plantation Company, Limited, and of the Hahnville and Boutte Railroad Company, on or about the first day of January, 1897, and continued to properly discharge and perform his said duties up to the 3rd day of February, 1899, when, without previous notice to him, he was informed that said contract was terminated and his services no longer required. That during the time that he was performing the duties of manager and superintendent as aforesaid, to-wit: during the sugar crop season of 1897-1898, the Ashton Plantation Company, Limited, under his management, earned an amount of money sufficient to pay a cash dividend of $30,000.00, without, however, any deduction being made from its earnings during said season of any part of said debt of $60,000.00, which, at the date of petitioner’s contract, it was represented to him, was due by the company to said A. H. Morris; -that, on or about January 4th, 1898, from a written acknowledgment of A. H. Morris, petitioner learned that said debt of $60,000.00, which, prior to that time, petitioner supposed was due by said company to said A. H. Morris, was not due by said company to A. H. Morris, and that therefore petitioner was entitled, under his contract, to one-sixth of said sum of $30,000.00 as additional salary for the year 1897; that petitioner, believing that the officers of and parties in interest in said Ashton Plantation Company, Limited, would deal with him in good faith and provide for the payment of his said one-sixth of the profits of said Ashton Plantation Company, Limited, for the year 1897, out of subsequent profits or other assets, did not press his claim or make demand for the payment of his one-sixth of said sum of $30,000.00, viz, $5000.00, continued -to discharge and perform his duties as manager and superintendent of said Ashton Plantation Company, Limited, and of the Hahn-ville and Boutte Railroad Company, without, however, in any way or manner, or by any act, waiving or abandoning his right to said' sum of $5000.00, and that said sum of $5000.00 is now wholly due and owing to him by said Ashton Plantation Company, Limited; that in addition to said sum of $5000.00, one-sixth of the profits of the said company for the year 1897, said company is indebted to petitioner in the sum of $2185.12, being balance of his annual salary for tile year 1899.

That, although, according to said contract, said Ashton Plantation Company, Limited, had the right to relieve itself from all future obligations assumed by said company under said contract, said contract provided, for the benefit of petitioner, an annual and indivisible salary of $2500.00 per annum; that said Ashton Plantation Company, Limited, is indebted unto him in the- further sum of $100.00, being an amount over-paid on account of the “Lone Star Store,” resulting from an erroneous credit allowed to petitioner of $100.00, instead of the sum of $200.00.

That, on or about the 3rd day of February, 1899, said Ashton Plantation Company, Limited, went into liquidation under its charter, and petitioner, being offered appointment as one of the liquidators thereof, accepted the same with the object of assisting said company in the liquidation of its affairs and protecting the creditors in their rights, and under -the belief that said company and its liquidators would act with petitioner in good faith. That, on the 28th day of March, 1899, petitioner, learning for the first time that his claim for the amount due him as aforesaid would not be acknowledged by the liquidators of said company, and being- dissatisfied with the course of the liquidation, in so far as other creditors are concerned, resigned his position; and that the liquidators of said company, now continuing to discharge their functions as such, are Charles E. Rice and James Legendre of New Orleans.

That said Charles E. Rice and James Legendre, liquidators as aforesaid, refuse to acknowledge or pay said sum of $7285.12 due petitioner as aforesaid, all of which said sum is now due and owing to petitioner.

The defendants first pleaded the general issue. They admitted that plaintiff was employed by the Ashton Plantation ©ompany, Limited, now in liquidation, under a written contract; that he acted under that 'employment until the 3rd of February, 1899; that the company went into liquidation on that day, and that plaintiff was appointed as one of the liquidators, and accepted the appointment, which he afterwards resigned, on or about March 28th, 1899. They specially denied, however, that they owed him anything; that he was discharged without previous notice, or that notice was necessary; that the company earned enough to pay, or did pay, a dividend of $30,000.00, or any dividend at all, properly called; that the crops of 1897 and 1898, or either of them, realized any profits, or, if they did, that the plaintiff was entitled to any part thereof; that he never ascertained the debt of $60,000.00, alluded to in his contract, was not due, and they denied that the company was bound to pay him “an annual and indivisible salary of $2500.00 per annum.” They averred that they properly refused to recognize his right to any compensation after the 3rd of February, 1899, the day the company went into liquidation, because it had been stipulated, in the contract of employment, that such liquidation would terminate the contract and would release the parties from all obligations thereunder, and for the other reasons in the. answer stated. That the plaintiff had ample notice, long before the 3rd of February, 1899, that his services would have to be dispensed with at any moment; that besides being employed as superintendent and manager, he was a stockholder and director of the company, and had the almost exclusive, unlimited control, direction and custody since the day he was employed of the Ashton plantation, in the parish of St. Charles (the main asset of the company), of the railroad operated in connection therewith, of cern, which were kept by him, or under his direction, in the parish of St. Charles; knew he had utterly exhausted the resources of the company, making it impossible for it to procure the necessary funds with the finances required to operate the whole, and of the books of the con-which to continue its business, and he, himself, as a director and stockholder, finally voted to put the company in liquidation, and was made one of the liquidators thereof.

That while it was true the company appears to have declared a dividend of $30,000.00, it only declared it, in the city of New Orleans, upon representations of the plaintiff, supported by an incomplete statement of the condition of its affairs which he furnished for the purpose, and with the aid of his vote as a director, he being aware at the time that the $30,000.00 were to be paid on account of the debt of $60,000.00. already mentioned. He knew also that the dividend, or nearly the whole of it, was paid on account of that debt, and that the remainder of the debt, more than $30,000.00, was still due and unpaid; that the debt was, in truth and in fact, the company’s debt. The company, its directors and stockholders, had always considered and treated it as such, and had assumed and agreed to pay it, with the profits of the concern, in the shape of dividends, all with the knowledge and consent of the plaintiff; that the plaintiff was, in no event, to have a share in any of the profits 'of the company, except those in excess of $60,000.00, which the company might derive from its agricultural operations, under the plaintiff’s management, and there had been no such profits, or excess profits — no profits in fact — of any kind, as stated.

That respondents never heard of the claim of $100.00 on account of the Lone Star Store, before they saw it mentioned in plaintiff’s petition, and that they did not know the cause of his alleged dissatisfaction with the course of the liquidation, which had been carried on with strict justice 'and impartiality to all creditors and other parties in interest, unless it be their refusal to entertain his unjust claim against the company; finally, that the plaintiff was estopped from contesting, or impugning the validity of any of the acts and doings of the corporation, particularly those in which he, himself, may have participated as a director, as an employe or as one of the liquidators of its affairs.

They therefore prayed that his suit be dismissed and his demand rejected with costs, and reserving the right to sue him for any amounts he might owe to the company, they prayed for general relief.

Dtefendants subsequently filed an amended answer, in which they averred that, subsequently to the date of the plaintiff’s contract, the claim of $60,000.00, referred to in the original answer, was found to be in a different shape from what the holder of the claim and all the parties to the contract of employment had believed it to be; that the plaintiff, upon being informed of the discovery, and upon being advised of the exact condition and situation of the matter, agreed not to claim any of the profits of the company, as salary or otherwise, until he should have earned $60,000.00 for the company, and then only one-sixth of the excess of said profits over and above the said sum of $60,000.00, and he expressly admitted that he was not entitled to demand more, under his contract, whether the debt of $60,000.00 was or was not due by the company. That respondent had discovered, since the filing of their original answer, that the plaintiff had made or caused to be made entries in the books of the company, tending to show that it made profits on the crop of 1897, that it owes the plaintiff the two items of .$5000.00 and $2185.12, which he claimed in this suit, and that the debt of $60,000.00,' heretofore mentioned, no longer subsisted; that the said entries were made without the knowledge or consent of the defendants, or of the Ashton Plantation Company, Limited, and they are illegal and improper, and respondents expressly repudiated them, as well as any and all other erroneous, improper or illegal entries that may have been made in the books by the plaintiff, or under his direction. Respondents further averred that it was impossible, owing to the condition of the books, to state at present whether or not the plaintiff owed anything to the community. They had discovered, however, since the filing of their original answer, that the company appeared to owe him the $100.00 which was claimed in his petition to be due on account of the Lone Star Store. But the company was insolvent, and hence if he was a creditor, he would only be entitled to receive the same pro rata as the other ordinary creditors, to whom a dividend of fifty-two cents on the dollar was being paid now. No one could then say what further dividend they would receive, but in order that respondents might be relieved from the costs to be hereafter incurred in this suit, they tendered and deposited, under express reservation of their right to sue the plaintiff for anything he might owe the company, a sum of one hundred dollars, more than enough to cover the entire pro rata to which he would be entitled as an ordinary creditor for $116.00, this last amount being made up of the sum of one hundred dollars, interest thereon at five per cent, from April 1st, 1899, to date (one dollar), and fourteen dollars which the plaintiff had paid-for costs in this suit to date. Respondents therefore prayed that their supplemental and amended answer be filed.

The court rendered judgment in favor of the plaintiff for two thousand two' hundred and eighty-five dollars and twelve cents. The defendants appealed.

Plaintiff prayed in the Supreme Court that the judgment of the District Court be amended in his favor for an additional sum of five thousand! dollars, with legal interest from judicial demand, as being one-sixth of the profits of the Ashton Plantation Company for the year 1897.

Opinion.

The plaintiff and the Ashton Plantation Company, Limited, entered into a contract together, by which the company engaged and employed plaintiff for the term of ten years, to begin January 1st, 1897, as manager and superintendent of the Ashton Plantation Company, Limited, and of the ITahnville and Boutte Eailroad Company. The plaintiff was to be paid for his services, annually, the sum of twenty-five hundred dollars, and upon the payment by the Ashton Plantation Company, Limited, of the debt of sixty thousand dollars due by it to A. H. Morris, the plaintiff was to receive as additional salary one-sixth of the profits made yearly by the Ashton Plantation Company, Limited, in addition to the sum of twenty-five hundred dollars.

In order to determine what the rights of the plaintiff would be in regard to the profits, the parties defined and agreed upon what should, for the purposes of the contract, constitute the annual expenses of the plantation.

Appended to the contract was a statement of the resources and liabilities of the company on January 31st, 1897, same being taken from the books as kept on the plantation on the date mentioned, and which the parties accepted and approved. By the contract, “it was agreed that it should terminate and come to an end, and the parties' shall be released from all obligations upon the liquidation of the Ashton Plantation Company, Limited.”

On the statement annexed to the contract the corporation is put down as being debtor of A. H. Morris, to the amount of sixty thousand dollars. This is the debt of sixty thousand dollars referred to in the contract. The plantation and its appurtenances do not figure on this statement as assets' of the company. Four thousand one hundred and fifty-four barrels (1,418,985 pounds) of sugar, unsold, estimated at five cents net-, amounting to $42,569.55, and thirds (sugars) in process (about 180,000 pounds sugar), estimated at two cents net, amounting to $32,000.00, do figure as assets on the statement. The two amounts aggregate the sum of $45,769.00. These sugars were evidently sugars of the crop of 1896, made before plaintiff’s contract commenced. No mention is made in the statement of the stubble and seed cane and corn brought over into the year 1897 from the crop of 1896.-

On the 4th of January, 1898, Mr. A. H. Morris, who appeared on the statement annexed to the contract between the plaintiff and the company as a creditor of the latter wrote the following letter to the plaintiff: '

“Whenever a property begins to earn money it becomes interesting. Such is the case with Ashton. I have therefore been investigating the details of the Ashton company and I have made a discovery to your advantage. The Ashton Plantation Company does not owe me a debt. Ninety-nine shares of the stock in the name of Charles E. Rice and 99 shares of stock, in the name of Morris Bein owe me $300 a share before such stock belongs to the holder of record. Therefore, there is no interest for the Ashton Plantation Company to pay, and you are so much ahead of the game. The profits of Ashton must be divided in the shape of dividends to stockholders, and when you have declared $60,000 in dividends, then after that you will receive one-sixth of the profits as per our agreement.”

On the 20th of January, 1898, Mr. Morris wrote the following letter to the plaintiff:

“Please find enclosed my check to your order for $2400, which amount you paid me of interest on a non-existent debt. I trust that you are well and that your crop has come up to your expectations.”

On the 12th of April, 1898, there was a meeting of the board of directors of the company, to which the plaintiff submitted a report dated March 20th, 1898, styled “Comparative Statement, Liabilities and Assets of the Ashton Plantation Company, Limited. 2-1-97 — 2-15-98. Basis, all amounts due and available assets, excluding value plantation field assets, tools, implements, mules, etc.” The statement opened with what is declared to be the assets and liabilities of 1897.

This statement shows excess of assets over liabilities of $12,173.

Then follows a statement of assets and liabilities of 1898. This shows an excess of assets over liabilities of $42,847.29.

The debt due to A. H. Morris does not appear on these statements.

On motion made and seconded the report was received and approved.

On motion made and seconded it was then resolved that a dividend of fifty per cent, on $60,000, represented by 600 shares of capital stock of this company, say $30,000, be and the same is hereby ■ declared and made payable on demand.’

■ The minutes of a meeting of a board of directors held on February 3rd, 1899 (the plaintiff, as a director, being present), recite that Mr. Becnel, the manager of the Ashton plantation, reported the inability to secure advances to make the crops of the Ashton plantation for the year 1899, also his inability to secure a loan sufficient to pay the debts of the company, which amounts, for the year 1898, to about the sum of $132,000. He reported that the seed cane on said plantation was decaying and would suffer great injury if not planted within the next three weeks, which can not be done for want of funds. He further reported that there are about three hundred and fifty acres of cane standing in the fields, which must be cut and hauled away; that the estimated cost of this work is ten thousand dollars. He reported the danger of overflow from the rapid rise of the Mississippi river, and the probable destruction of the crops from said cause, whereupon Mr. Sully presented the following resolution, which was duly seconded:

“Resolved, that the Ashton plantation, its land and improvements, together with one hundred and ninety-three shares of stock of the Hahnville and Boutte Railroad Company, owned by this company, be sold at private sale for cash, for not less than sixty thousand dollars, and Charles E. Rice be and he is hereby, as president, authorized to execute all deeds and transfers necessary to the full conveyance of said lands and shares of stock.”

At a meeting the same day of the stockholders (the plaintiff being present and voting), Mr. Rice, the president, stated that, in conformity to a resolution of the board of directors adopted that day, he had sold and conveyed to Emile Legendre, for the sum of sixty thousand dollars, cash, the Ashton plantation, an asset of the company, together with 193 shares of stock of the Hahnville and Boutte Railroad Company.

On motion of Mr. Sully, seconded and adopted, it was resolved that the said sale' be approved and ratified by the stockholders. Mr. Simmons then presented the following resolution, which was seconded and adopted:

“Resolved, that the Ashton Plantation Company, Limited, go into liquidation; that its affairs be wound up by three commissioners, in conformity with Article 6 of its charter, and that Charles E. Rice, James Legendre and L. A. Becnel (plaintiff) he and they are hereby appointed commissioners to liquidate its affairs, and that the assets of the company, including the proceeds of sale of the Ashton plantation and shares of stock, be turned over to said commissioners for distribution among the creditors of the company.”

The plaintiff accepted the position of commissioner, acted for some time as such and then resigned. This suit followed.

Plaintiff’s claim is for:

One-sixth (%) of dividends declared from earnings of 1897-1898 ............................................. $5000 00
For balance due on salary for the year 1897-1898.......... 2185 12
For amount unpaid account of purchases made by the Lone
Star Store, the property of L. A. Becnel.............. 100 00
Total ............................................. $7285 12

Defendant concedes the indebtedness claimed of $100, but denies owing the balance.

The position taken by the plaintiff is thus stated in the brief filed on his behalf:

“It is quite clear that, under the contract, the plantation company could, at any time, by its liquidation terminate the contract and be relieved from all obligations arising under the contract, subsequent to the liquidation, as far as the plaintiff is concerned, but it is equally clear that it could not, in case of liquidation, release the company from debts accrued, or from obligations complete at the date of the liquidation. The contract declares that the plaintiff was “to be paid for his services annually the sum of twenty-five hundred dollars.” ' The fact of the liquidation of the company after the beginning, under the contra cl, of a new year, and after plaintiff had been allowed to render services during the early part of that new year, did not release the company^ from the obligations to pay the annual salary for that year. Contracts for the employment of managers or overseers of plantations are, in this State, by the year. The Supreme Court, in Miller vs. Gidiere, 36 Ann. 203, says: ‘Overseers are not usually employed from month to month or by the month. Our agriculture requires them through the year.’
“Again, in the ease of Alba vs. Moriarty & Co., 36 Ann. 682, the Supreme Court decided that, ‘Plaintiff, by the térras of the letter evidencing the contract, was employed not for one year, but at eighteen hundred dollars per year. It was therefore a continuing contract from year to year until terminated by mutual consent, or by timely notice given by either party at or before the expiration of the year.’ ”

Plaintiff then refers to the cases of Lalande vs. Aldrich, 41 Ann. 308, and Long vs. Kee, 42 Ann. 899, and to the declaration made bv the Supreme Court in the latter case that the right of setting aside a contract for a manager’s services must “be exercised reasonably and after due notice and at the beginning of some designated year.”

He then contends that “though the company could end the contract by liquidation at any time, liquidation did not give it the right at any time to divide the annual salary or to repudiate^ any part of it. At the end of each year the salary of that year was of course all the salary due, and liquidation at that time not only avoided the contract, but left plaintiff with no claim for salary. If the company allowed a new year to begin and plaintiff’s right to a new annual sum to attach liquidation before the end of that year dissolved the contract, but did not.leave plaintiff without right to his salary for the year. Termination of the contract is one thing; division of annual salary for the purpose of release from its full payment, is another. In order to have released the company from its debt for the plaintiff’s salary for 1899, it was incumbent upon the company to have gone into liquidation prior to the 1st of January, 1899, the compensation, under the contract, not being at the rate of so many dollars a month, but at a fixed sum per year.”

Before proceeding to an examination of th© various contentions of the plaintiff, it may be well to say at once, that there is no complaint in plaintiff’s petition that the right of liquidation was inopportunely or unreasonably exercised. The evidence shows that the liquidation was resolved upon at a meeting of stockholders by a unanimous vote of the stockholders (the plaintiff participating and voting). It further shows that this action was the result of a report made by the plaintiff to the company, from which it appeared that it was impossible, for want of means, for the company to have attempted to continue its operations any further.

This is not, as was the Alba vs. Moriarty case, a suit brought under the provisions of Article 2Y48 of the Civil Code, which declares that, “if, without any serious ground of complaint, a man should send away a laborer, whose services he had hired for a certain time, before that time has expired, he shall be bound to pay such laborer the whole of the salaries which he would have been entitled to receive had the full tern, of his services arrived”; nor is it a case as was Madden vs. Jacobs, where the employer had, of his own volition, without the'consent of the party employed, elected to go out of business, and simply by its own will terminate its existing obligations to others. No question is involved here of the “discharge” of an employe without cause before the expiration of the period of his term of service, nor is it pretended that the company, quoad the plaintiff, went out of business without his consent and concurrence. Plaintiff was not “sent away” by the company, Plaintiff’s employment terminated by the effect of the exercise by the company of the right of going into liquidation at any time — a right consented to by the plaintiff by the exact terms of the contract on which he has declared, and exercised, as we have seen, on his own representations and with his consent — his consent not only evidenced by the contract, but by his active concurrence at the moment of the vote for liquidation.

The plaintiff refers to his contract as being a ten-year “contract with annual stops and beginnings,” but the mention of ten years as the period of plaintiff’s employment is limited and qualified by the subsequent clause: that it would terminate at any time by the company’s going into liquidation. The contract, so far as the company was concerned, was for ten years, less such time as might be deducted as the result of the liquidation of the company. In view of the fact that it was expressly agreed that the contract could be made to terminate at any time, it can not be asserted that it had in view a separate contract of employment for each of the ten years. But granting that there was a contract separately for each of the ten years following its date, it was expressly stipulated that any one of the contracts could be split or divided into one for a shorter period by terminating the contract for that year. There was no time stipulated at which the right of liquidation should be exercised. It could be exercised at any time, and when it was exercised it was the result of conditions which made the liquidation necessary.

If we suppose that at the time of the vote being taken for the liquidation of the company plaintiff had been called distinctively as an employe of the company, and asked whether he consented to the termination of his, contract, and he had stated that he did give an absolute consent that this should be done, he thereafter would not be permitted to assert that, though the contract had been by mutual agreement ended, the company was under obligation to pay for services not yet rendered by the plaintiff, but which were by the contract to be 'thereafter rendered. The consent of the plaintiff,, given at the time of the creation of the contract, was as binding upon him as would have been a direct, immediate consent given at the time for the vote for liquidation. In this case, there was both original and subsequent consent. There was unquestionably a completed “contract” between the plaintiff and the company, which anticipated and was intended by both parties to extend over a period of ten years, but it was none the less an executory contract so far as the plaintiff was concerned. The salary agreed upon was in consideration of services to be performed by him; it was not in contemplation of the parties that the plaintiff should charge or the defendant pay for services not rendered.

Articles 1898 and 1899 of the Civil Code declare “that where the cause or consideration of the contract really exists at the time of the making of it, but afterwards fails, it will not affect the contract if all that was intended by the parties be carried into effect at the time.”

“The destruction of property sold after the sale is a case governed by this rule, but if the contract consists of several successive obligations to be performed at different times and the equivalent is not given in advance for the whole, but is either expressly or imperfectly promised to be given at future periods, then, if the -cause of the contract corresponding to either of the successive obligations should fail, the obligation depending on it will cease also.”

Article 1890 of the Code declares that “the contract is considered without cause when the consideration' for making it was something which, in contemplation of parties, was thereafter expected to exist or take place, and which did not take place or exist.”

The rights and obligations of the parties to this controversy rest not only upon law, but upon contract. It was expressly foreseen and anticipated that what the parties agreed to might, from circumstances, become impossible of execution, and it was therefore provided that the contract might be terminated by the liquidation of the company. The question of “reconduction” does not enter into this case.

The going of the company into liquidation left it liable to the plaintiff for the portion and proportion of the salary for 1899 due him for services actually rendered in that year. He was in service from the 1st of January, 1899, to the 3rd of February. Asserting that the company owes him salary for the whole year, $2500, he claims there is due him still a balance thereon of two thousand one hundred and eighty-five dollars of that salary. He must therefore have received payment of the difference on account. The court rendered judgment in his favor for two thousand two hundred and eighty-five dollars and twelve cents, of which one hundred dollars was evidently1 upon his admitted claim of one hundred dollars on the Lone Star Store account.

No mention is made in the judgment of plaintiff’s claim for profits. The court evidently rejected that claim, and we think it did so properly. The parties evidently contemplated that the profits, in which the plaintiff was to share after the payment of the debt to A. H. Morris, were the profits to be earned by the plantation after the year 1896, and while the plantation was under the management of the plaintiff. As we read the evidence, the plantation made no profits during either of the years 1897 and 1898. On the contrary, the operations of the plantation in each and both of'these years resulted in losses.

It is true that a certain amount of money was paid over in 1898 to the stockholders as a so-called dividend, but the amount so turned over was not the result of any moneys accruing to the plantation as profits earned by the plantation in the crop operations of 1897. They sprang from conditions which arose entirely outside of and independent of the contract sued on between the plaintiff and the defendant, and which he can not make to enure to his benefit, as those amounts were not earned through any service rendered by him under the contract. The amount so paid was distributed by him in full to the stockholders without any claim being made by him to the company that he was entitled to a share thereon. It is possible that the turning over of this money' instead of holding it for use was an injudicious step, as matters turned out, but that question is not before the court, and whether judicious or injudicious, it met, at the time, with plaintiff’s concurrence. Appellants, in their brief, ask “that the judgment appealed from may be reversed, and that the amount allowed the plaintiff may be reduced to one hundred dollars, payable in due course of liquidation, with costs up to the 15th of June, 1899, the date of their tender and deposit of the amount due the plaintiff, and that the plaintiff be condemned to pay 'the costs of both courts, from and after that date.”

For tbe reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff do have judgment against the defendnants herein for the sum of one hundred dollars, with legal interest from judicial demand until paid, the said amount to be paid by the defendants in due course of administration.

It is further ordered, adjudged and decreed that plaintiff’s demands, except for the said amount, be and the same are hereby rejected and dismissed.

It is further ordered and decreed that the defendants pay tbe costs of court incurred up to and including the 15th of June, 1899, and that the plaintiff pay the costs incurred in both courts, from and after that date.

Rehearing refused.

Provosty, J., takes no part.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,768.
    Barr & Hettermann vs. W. K. Henderson.
    Syllabus.
    1. Testimony is admissible under tbe general denial, the tendency of which is to disprove plaintiffs’ averments.
    2. The capacity of defendant’s mill was not as great as plaintiffs allege. The timber for tbe mill was obtained with difficulty during the low stage of the water; in consequence the cut of the mill which plaintiffs bought was not as great as plaintiffs expected. They did not put defendant in default and did not object to the slow operation of the mill until late in the year, when its operation was not longer to be expected, owing to the necessity for making repairs.
    8. Tlie defendant bound himself by the terms of the contract with the plaintiffs to deliver to the latter lumber of one inch in thickness. Plaintiffs agreed to take the entire cut of the mill. The entire cut included all the grades except mill culls.
    4. Only a fractional portion of the lumber was of thickness' required by the contract. The percentage of inferior grades was much larger than the terms of the contract cover. Defendant was not, in matter of the execution of this contract, in a position to compel plaintiffs, as he undertook to do, to take all the lumber on his lumber yard. It was not, taken as a whole, of the required quality and measurement.
    5. The profit which plaintiffs would have made, if the lumber required by the contract had been delivered, is the damages due, besides the amount which the plaintiffs had advanced to the defendant on the contract.

      APPEAL from the First Judicial District, Parish of Caddo — • Land, J.

      Whitfield Jack and Alexander & Wilkinson for Plaintiffs, Appellees.

      Wise & Herndon for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs seek to recover an amount claimed as having been paid by them to defendant in accordance with a contract, and they also seek to recover damages- growing out of the alleged violation of the contract.

It appears that defendant, by the contract in question, bound himself to sell to plaintiff the output of his mill for one year. He also obliged himself to run.his mill to its full capacity, subject to unavoidable delays and accidents, and to saw cotton-wood lumber exclusively. The defendant agreed with plaintiffs to saw all lumber to such width and thickness as they would order and of such weight as to be of full measurement when cdry.

The plaintiffs, on their part, obligated themselves to pay nine dollars and fifty cents per'thousand for the lumber (not including mill culls), five dollars of the amount at the end of each month for the lumber cut and in the stack, and the remainder of the price on delivery on barge.

Plaintiffs set forth that they advanced ten thousand four hundred and forty-seven 67-100 dollars to defendant on the lumber. They also claim the sum of ten thousand four hundred and forty-five dollars asserted loss of profit on the lumber, and they aver that they lost forty, thousand dollars arising from the defendant’s failure to. run the mill to its full capacity, and set up a demand in a large sum for punitory damages. The defendant pleaded a general denial and he specially avers that he has always been willing to comply with his contract and he further claims an amount due him, so he alleges, on his contract.

The judge of the District Court, in a carefully prepared opinion, held that plaintiff is entitled to the first amount above mentioned, and in addition rendered judgment in favor of plaintiff for the sum of twenty-five hundred and twenty-six 71-100 dollars. From this judgment defendant prosecutes this appeal. Plaintiffs join in the appeal and ask that the judgment be amended so as to grant the whole amount alleged in their petition as due. They also ask for interest from the dates of payment on the moneys advanced to defendant, and, lastly, to have certain rights reserved.

The testimony of plaintiffs sustain their demand for the difference between the total amount of advanced payments made by them and the amount of credit to which the defendant is entitled on the lumber shipped out to meet advance payments, i. e., ten thousand four hundred and forty-seven 67-100 dollars.

This, at once, brings us to a consideration of the second item claimed by the plaintiffs arising from the asserted loss of profits caused, plaintiffs aver, by failure to run the mill to its full capacity, also to a consideration of the item claimed by plaintiffs for exemplary or punitory damages.

Eor the purpose of refuting the charge that he had wantonly failed to run his mill to the full capacity, defendant offered to prove that the waters of Red River, for some time, had been low, and that log floating down that stream had become extremely slow and difficult. Plaintiffs objected, on the ground that the testimony was not admissible without averments specially setting out the cause that had prevented the mill from running to its full capacity; that matters of defense must be specially pleaded in avoidance or extinguishment of an obligation, We think that the testimony was properly admitted under the genera] denial. It shows circumstances which relieve the delay in running the mill from the accusation of its having been intentional. It was testimony of reasonable necessity for closing down and stopping operation of the mill. Elliot vs. Steamboat James Robb, 12 Ann. 12.

This rule of practice finds support in Budreaux vs. Tucker, 10 Ann. 8, in which the court held, as shown by a correct head note of the texlj that “special allegations in the answer are not necessary to authorize the introduction ’of evidence, the direct tendency of which is to disprove what the plaintiff alleges.” The aim was to refute plaintiffs’ allegations of wrong intended by the defendant and was admissible under the authorities cited. The supply of the raw material for running the mill was directly connected with its running operations. The unavoidable delay in obtaining the logs to saw, accounted for the stoppages of the mill.

The testimony objected to, but admitted under the court’s ruling, sustains defendant’s averments that the floating of logs down the Red River, owing to the low stage of the water, was attended with difficulties. The rafts came down slowly, taking weeks instead of days when the water was not so low as it was. The other means of transporting logs, i. e., by railroad, were not in the contemplation of the parties when the contract was signed and it does not appear to have been reasonably feasible.

True, the output of the mill in the twelve months was small in the number of feet cut, but it does not appear that plaintiffs at any time ever placed the defendant in default by a formal demand. The work moved on slowly enough, but without any serious objection for quite a time, after which time, necessary repairs were made, rendering it impossible to run t'he mill. Besides, the weight of the testimony sustains the idea that the mill capacity was not nearly so great as plaintiffs contend it was.

Taking all the facts sustained by the testimony into account, we are convinced that plaintiffs have no cause of complaint, on the ground that the mill’s output for the year should have been larger, and that, in consequence, their profits would have been greater than they were The view heretofore expressed relieves the defendant of the charge of having delayed running operations to the end of injuring plaintiffs and of purposely failing in the execution of his contract.

We pass to the consideration of another asserted violation of the contract. This brings us to the gist of the complaint before us for decision. It involves the interpretation of the clauses of the contract, one that plaintiffs were to receive all the cotton-wood lumber cut (mill culls excepted), and the clause following, that the lumber was to be of 'he widths and thickness ordered. Availing themselves of the la it clause, plaintiffs ordered lumber to be cut one inch in thickness. Defendant substantially admits that he did not direct his employees to comply with the instruction of plaintiffs in this respect. Only a fractional portion of the lumber was of that thickness. Much of this lumber was mis-sawn or badly sawn.. But, defendant, in this connection, urges that plaintiffs are obliged under the terms of the contract to take all the lumber the mill sawed, except the mill culls; that all badly sawn or mis-sawn lumber is classed as culls, and was to be considered as part of the mill’s cut, which plaintiffs intended to buy. In our view, this contention is not borne out by the contract. Plaintiffs having ordered inch lumber, had a right to lumber of that thickness. They had frequently complained of the way the lumber was being sawed. The testimony shows that the lumber was badly cut. Plaintiffs, by the terms of the contract, had some right to some uniformity of measurement. It should have been made to appear in order to bind plaintiffs that this lumber was cut with some regard to the measurement ordered.

The first witness who testified, an inspector of lumber for many years, said:

“Q. — -You say you ‘never saw such lumber* — what kind of lumber was it; was it good lumber %
“A. — It was good for nothing, that is the kind it was. About fifty per cent, we could not accept. I have never seen such a bad lot of lumber in my life.”

Another witness, the fourth in the order in which the witnesses were examined, was equally as emphatic on the subject. All the witnesses for the plaintiffs agreed in the statement (there was a number for plaintiff and defendant) that the percentage of mis-eut lumber was extraordinarily large. Their testimony sustains the averment that it was not well manufactured lumber. Witnesses for the defendant evidently thought that, as a whole, it could have been planed or sawed so as to make it a merchantable article.

Be all this as it will, we have not found that, by the terms of the contract, defendant was in a position to insist upon the plaintiffs taking “all the lumber on the yard or none at all,” as we understand was his order to his foreman, as shown by the weight of the testimony. Plaintiffs had bound themselves to take inch lumber and all the grades, except mill culls, that would be cut while sawing the lumber of the measurement just stated. The percentage of other grades was larger than it should have been. Much the larger percentage should have been of inch boards. It was not.

Mis-cut and badly sawn lumber had been delivered by defendant to plaintiffs before the difference arose between them, at the full price within the terms of the contract. These inferior grades were taken at half price. This, to some extent, shows the interpretation which the parties gave to the contract. In our view, defendant, being bound primarily to make inch lumber, could not compel plaintiffs to accept all lumber without regard to uniformity of measurement set forth in the contract. Defendant did not comply with the terms of the contract and, in' consequence, plaintiffs are entitled to have it decreed dissolved. Plaintiffs are entitled to damages to the extent that there was non-performance.

At the date suit was brought for the dissolution of the contract, it appears that there were two million and eighty-nine thousand feet of lumber on the yard to which plaintiffs were entitled, and which should have been delivered as required by the contract. Witnesses have fixed the net profit which plaintiffs would have made at one dollar and twenty-one cents per thousand feet. We have given consideration to the error plaintiffs aver was made by a member of the firm in testifying regarding net profits'. We, nonetheless, think that the estimate made heretofore should stand as being a correct estimate as made evident by other testimony in the record. Plaintiffs ask that the judgment be amended so as to reserve to them the right to recover of defendant in a subsequent suit, whatever amount they may have to pay for their default arising from defendant’s failure to deliver the lumber as per contract. Plaintiffs have the right to recover upon any claim to which they are entitled that is not covered by the terms of this decision, without reservation.

Eor the reasons assigned, the judgment appealed from is affirmed.

Peovosty, J., takes no part.


author: Nicholls, C. J.

text:
    No. 13,960.
    State of Louisiana vs. Jean Baptiste Ned.
    Syllabus.
    The conviction of a person of a crime which the Constitution requires should be tried by a jury of twelve, though nine jurors concurring might render a verdict (Article 116 of the Constitution of 1898), is not a legal conviction, though twelve jurors were physically present during the trial and all concurred in a verdict of guilty, if one of the jurors on the jury was in a drunken condition during the trial.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry — Lewis, J.

      B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      John W. Lewis and James J. Baily, for Defendant, Appellant.
   Statement or the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendant appeals from a sentence of seven years’ imprisonment at hard labor in the penitentiary.

The crime of which he was convicted was one requiring for conviction under the Constitution, “a trial” by a jury of twelve. (Article 116 of the Constitution of 1898.)

The court overruled his motio.n for a new trial, which assigned as the ground therefor that “one of the jurors, Lastie L. Harmon, who, after the panel had been completed and the trial gone into and the court reconvened, pursuant to adjournment, appeared in court in a drunken condition. That when the first witness, after the recess hour, was called on and before his testimony was given -the said juror, because of his drunken condition, had to be removed to an adjoining room; that when he reappeared in court and resumed his seat among his fellow jurors, he was still in an intoxicated condition, unable to hear, follow and understand the testimony, and immediately fell asleep and remained in that condition during the remainder of the trial, and had to be awakened by one of the jurors when the judge ordered the jury to their chamber for deliberation. That the juror remained asleep during the entire time that the different witnesses were testifying, during the argument of counsel and the charge of the judge.”

The judge refused the new trial, assigning as his reason that, under Article 116 of the Constitution, in. cases of this character, though a jury of twelve is required, nine of the jurors can find a verdict, and the misconduct of one member of the jury does not render the finding of the nine concurring members invalid, unless it be shown that said juror was one of the nine rendering the verdict.

That the'record in the ease failed to show any dissenting juror, and the reason for setting aside the verdict of jurors under the old rule of unanimity does not exist in this case, and in the opinion of the court should not be applied, especially in view of the consideration that no injury either appears or has been shown to the accused. The misconduct of the juror was not of such a nature as to have any appreciable influence on the other members in arriving at a just verdict, as the law permitted the remaining jurors to render a legal verdict.

The Attorney General has filed no brief in the case. In that of the district attorney, he says: “The evidence taken on the trial of the motion for a new trial we must admit establishes the fact that the juror was to a certain extent hors de combat, so that there can be no dispute between the State and the defense as to the facts governing the trial of the motion, narrowing the contention to a question of law, to-wit: whether, since the adoption of the Constitution of 1898' misconduct on the part of one member of the jury will vitiate a verdict rendered in a case where, under the Constitution, nine concurring can render a verdict, unless similar charge of misconduct can be levelled against his fellows.”

Neither the judge nor the district attorney should have permitted the trial to proceed under the conditions existing. The spectacle of a man on trial for a crime involving his liberty, with a drunken juror in the jury-box, is not one calculated to advance the proper administration of justice, nor to inspire the people with the respect which should be due to courts.

Independently of this, the conclusions of law reached by the court and the district attorney were not well grounded. The duty of a jury is not simply to hear the evidence adduced upon a trial, but on retiring to their room to deliberate upon it. The Constitution required that in this case the accused should be tried by twelve men. lie could not waive this requirement. He was ¡entitled to the deliberation, consultation and decision.of twelve men. This he has not had. Had a jury of twelve been empannelled for the trial of this cause, and one or two of the jurymen absenting themselves, the trial been proceeded with with nine or ten or eleven jurors, it could not.be claimed that the constitutional requirement that the accused should be tried by a jury of twelve had been complied with. We understand the Constitution to require, not simply that nine jurors should concur in a verdict, but that twelve must be present from the beginning of the trial to the end. The juror in this case was physically present, but for legal purposes he might well have been absent.

We do not intimate that every act of misconduct by a single juror would carry with it the avoidance of the verdict rendered by the jury, but misconduct, such as has been shown in this case, should carry and does carry .with it that result.

For the reasons assigned herein it is ordered, adjudged and decreed that the verdict of the jury and the judgment thereon rendered, be and the same is hereby set aside and the cause remanded to the district court for further proceedings, according to law.


author: Monroe, J. Blanchard, J.

text:
    No. 13,700.
    Mrs. Lydia B. Taft vs. Pierre Donnes.
    Syllabus.
    The application of Article 739 of the Code of Practice is to be confined to the issuance of writs of injunction without bond. Under other articles of said Code, injunctions may issue, on bond, restraining the execution of writs of seizure and sale, for causes other than those enumerated in said Article 739.
    APPEAL from the Civil District Court, Parish of Orleans— St. Paul, J.

      John T. Whitaker, (Ernest T. Plorance, of Counsel), for Plaintiff, Defendant in Injunction, Appellee.

      Paul Louis Fourchy, for Defendant, Plaintiff in Injuction, Appellant.
   The opinion of the court was delivered by

Monroe, J.

On application for rehearing by Blanchard, J.

The opinion of the court was delivered by

Monroe, T. Plaintiff caused executory process to issue upon defendant’s past due note, for nine thousand dollars, secured by mortgage and bearing interest at 8 per cent, per annum from maturity; and the property affected thereby had been seized and advertised for sale when the proceeding was arrested by an injunction, issued, at the instance of the defendant, on a bond of three hundred dollars, and on a petition, in which defendant alleges that said note and mortgage were obtained through fraud and without consideration; that the plaintiff is an interposed person, and that Jcihn T. Whittaker is the real holder of the note, and that he withheld nearly three thousand dollars, though now claiming the same, with interest; and there were some other allegatons, which have been abandoned.

Thereafter, a rule was taken, by the plaintiff in the seizure to dissolve the injunction, upon the ground that the allegations of the petition were insufficient and untrue, and that the bond was insufficient and the surety not gopd. There seems to have been a hearing upon the matter of the bond and surety, as a result of which, another bond, of seven hundred dollars, was furnished, by order of the court; and another rule to the same effect as that already filed was then taken, which, after the hearing of evidence, was made absolute,' and the injunction was dissolved; and from the judgment so rendered, the defendant (plaintifE in injunction) has appealed.

The evidence shows that the defendant owed a debt, amounting with interest, to five thousand five hundred dollars, secured by mortgage on the property in question, and for which said property had been seized, and that there was, also, a claim for eighteen hundred dollars, bearing interest at the rate of six per cent, from 1892, recorded against said property in favor of the Rosetta Gravel and Paving Company; that Octave Gomez, representing the defendant, applied to John T. Whittaker for a loan of $9000.00, and that the latter agreed to make it, on condition that a sufficient proportion of that amount should remain in his hands to cover the claim of the paving company, which the defendant was to settle, compromise, or litigate, as he thought best. It further appears that Whittaker advanced the fifty-five hundred dollars necessary to satisfy the pre-existing mortgage; that he paid four hundred and thirty-five dollars to the notary, and two hundred and seventy-five dollars to Mr. Suthon, and retained ninety dollars, as a commission to himself, and two thousand seven hundred dollars, to meet the claim of the paving company; and it, also, appears that he was acting for the plaintifE in the matter, although that fact was not made known to the defendant, who dealt with him in the belief that he was acting for himself.

As to the amounts paid to the prior mortgage, to the notary, and to Mr. Suthon, there is no dispute, but it is admitted that no part of the twenty-seven hundred dollars reserved for the paving claim has been paid, not by reason of any default or unwillingness on Whittaker’s part, but because defendant has not -been willing that said claim should be settled or compromised on any terms that have been proposed. It is also admitted that the ninety dollars retained by Whittaker as his commission, is still so retained, although it appears that a like amount was paid from the proceeds of the mortgage, as a commission to Octave Gomez, who acted as the representative of the defendant in the transaction.

The writ under which the property was about to be sold directs that out of the proceeds of the sale the sheriff shall “pay and satisfy the plaintiffs claim — the sum of nine thousand dollars ($9000.00), with 8 per cent, interest from the 26th of April, 1899, 10 per cent, attorney’s fees, on the amount herein sued for,” and costs.

But, it is clear that in the nine thousand dollars, thus referred to. there is included, at least, twenty-seven hundred dollars which the plaintiff already has in her possession, and which she is not, therefore, entitled to recover from the proceeds of the sale of the defendant’s property. Nor is she entitled to recover attorney’s fees on that amount; and whether she is entitled to interest, depends upon whether, under the agreement between the defendant and herself, she has actually been deprived of the use of the money. Upon what theory the plaintiff’s representative charges the defendant with the commission, of ninety dollars, the facts disclosed in the record do not enable us to say, and we think that, in order that the defendant may be fully heard upon the subject, and in order that there may be further inquiry into the question, whether the plaintiff has actually been deprived of the use of the twenty-seven hundred dollars, which, though retained by her, is, nevertheless, included in the nine thousand dollars called for by the writ under which defendant’s property has been seized, the case should be tried upon its merits, and the injunction, eventually, dissolved, with respect, only, to so much of the debt claimed as may be found to be due, after such trial. The position assumed by the plaintiff’s counsel, in so far as they claim that John T. Whittaker was the “joint depositary, without compensation,” of the plaintiff, the defendant, and the paving company, is at variance with the facts and, untenable. Mr. Whittaker acted throughout the whole transaction in his own name, and the defendant believed, and was justified in believing, that he was. acting for himself, and that, in loaning his money he simply retained, out of the whole amount for which the note and mortgage were given, a sum (the exact amount of which was not made known to the defendant) sufficient to protect himself, with respect to the amount actually advanced, against an apparent prior lien on the property mortgaged which the defendant desired to contest. The paving company was not a party to the transaction, and we do- not understand that he incurred any liability in its favor. It now turns out that he was acting as the agent for an undisclosed principal. But that circumstance in no wise alters the situation to the prejudice of the defendant, nor does it change his status from that of an agent, who, on behalf of his principal, has taken a note and mortgage for twenty-seven hundred dollars more than he advances, with the understanding that he is to apply the sum so retained, if, and when, called upon by the borrower, to the extinguishment of a prior lien on the property mortgaged, into a “joint depository, without compensation,” representing, alike, the lender, the borrower, and the beneficiary of the lien. The charge of fraud is entirely without support; but the defendant has shown that he has rights which are in danger of being overlooked, and the injunction sued out by 'him should be maintained until they are adjudicated upon. It is true that the other averments, upon the basis of which said injunction issued, do not fall strictly within Article 739 of the? Code of Practice, and the learned counsel call our attention to the case of Dupre vs. Anderson, 45 Ann. 1134, in which it was held that executory process can be injoined only upon one, or more, of the grounds specified in that article. Prior to the rendition of that judgment, however, and since, it had, and has, been the uniform jurisprudence of this court that the article relied on applies only to cases in which injunctions issue without bond; and, after an examination of the adjudged cases, we feel constrained to adhere to that jurisprudence. In Johnson vs. Hickey, 4 La. 285, the question was distinctly raised, that the grounds upon which the injunction issued' were not within said article, but the injunction was, nevertheless, sustained, Martin, J., being the organ of tile court. In Sewell and Husband vs. Cox, 10 R. 68, it was again distinctly presented, and, in this instance, distinctly adjudicated. The court, referring to the averment, upon the basis of which the injunction had issued, and to the contention that it did not come within the provisions of Article 739, C. P., said: “Taking the allegations as true on the face of the petition, the obligation might perhaps be considered as one of those which, having been obtained by unlawful means, are provided for in the 6th paragraph of the article relied on. But here the injunction was applied for according to the rules pointed out by Sec. 5, Sec. 4, Chap. 2,.Art. 1, of the Code of Practice, from Articles 296 to 309, among which Art. 303 provides for the granting of injunctions in all cases in which it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties from doing any act injurious to the other; and the plaintiff, Mary, gave a bond, accordingly, whilst such bond is not required by Article 740 of the Code of Practice. It was clearly necessary,, under the issues set up by the said plaintiff, that her slaves should not be sold; and we think that the reasons stated in her petition were sufficient to authorize the granting of the injunction, which the court a qua properly refused to dissolve until the trial of the case upon the merits.”

In Calhoun vs. Mechanics and Traders Bank, 30 Ann. 785, Egan, J., in a concurring opinion, said: “The enumeration of causes for' injunction in the article” (referring to Art. 739 C. P.) refers, however, only, to the injunction without bond, provided for in the proceding Article, 438,” (738 being intended) “and by no means narrows or restricts the general provisions of the law authorizing any injunction for any legal cause under that head in the Code of Practice.”

In Berens vs. Executor of Boutte, 31 Ann. 113, Manning, C. J, referring to the grounds for injunction as provided in said article 739, used this language, to-wit: “If the debtor seeks to arrest the sale of his property for one or more of the specified reasons, upon alleging which, under oath, the judge will not require security, he must confine himself to those reasons if he wishes to avail himself of that privilege. If he prefers to strengthen his claim to relief by adding other reasons, there can be no objection to this cumulation of grounds for injunction, but he must give bond and surety as required under other provisions of the law regulating the issuing of those writs.” And the doctrine as enunciated and recognized in the cases thus cited, has been accepted and acted on in the following and, probably, many other cases. Barrow vs. Cazeaux, 5 La. 75; Greenwall vs. Roberts, 7 La. 65; Jenkins vs. Felton, 9 R. 200; Chambliss vs. Atchison, 2 Ann. 491; Brooks vs. Walker, 3 Ann. 150; State ex rel. Gay vs. Judge, 27 Ann. 213; Walker vs. Cucullu, 15 Ann. 689; Gughliehmi vs. Geismar, 46 Ann. 280; and Same vs. Same, 47 Ann. 147.

In the case at bar the defendant gave bond, originally, and, subsequently, gave another bond, for a larger amount. It does not appear, therefore, that he was proceeding exclusively, under Article 739 of the Code of Practice.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded and tried upon its merits; and that the injunction be maintained pending such trial; the costs of the appeal to be borne by the appellee, and those of the lower court to await final judgment.

On Application for Rehearing.

Blanchard, J.

Defendant’s injunction of the order of seizure and sale was based on three grounds: — (1) That the plaintiff was interposed person without interest in the mortgage note and in the suit upon it; (2) that a sum approximating $3000.00, which, while included in the notes, was actually withheld from defendant at the time the contract of loan was eonsumated and the note and mortgage executed; (3) that the note was obtained by fraud and without valid consideration.

The motion to dissolve put at issue all these averments. It charged the injunction improvidently issued because the allegations of the petition for injunction are false, and because the same are insufficient to justify the writ.

This plea, called a motion to dissolve, was really an, answer to the merits of the petition for injunction and should have been so styled.

Evidence was adduced and trial had as fully as though the cause was being tried upon its merits.

This being so, it is now considered that final determination upon the merits of the controversy may be had, and, thus, further litigation obviated, further delay in that portion of the debt justly due prevented, and further consumption of the time of the litigants and of the court avoided.

In the opinion of this court, handed down, it was held that the sum of $2700.00, of the $9000.00 loan, was shown by the evidence not to have been received by the defendant, Donnes, nor to have been paid out for his account, and that the further sum of $90.00 claimed as commissions by plaintiff’s agent, should not have been deducted from the amount representing the loan to the defendant.

To the extent of these two sums, as credits to be placed on the mortgage note as of date April 26, 1899, it was thought the ease for injunction had been made out in favor of the debtor, but not made out in respect to other issues raised.

In her application for rehearing the plaintiff (Mrs. Taft) asks final determination of the case, even to the extent of consenting that the sums mentioned be entered as credits on the note, should the court finally conclude such credits are allowable.

Inasmuch as defendant could gain nothing further than this by a second trial of the cause below on its merits, except time, and inasmuch as the giving of time to debtors is not considered by courts in matters such as that here presented, it is ordered that the decree heretofore handed down herein by this court be set asidej and it is now adjudged and decreed that the judgment appealed from, dissolving the injunction which issued in this case, be affirmed in so far as it allows the writ of seizure and sale to proceed for the sum of six thousand, two hundred and ten dollars, with interest at the rate of 8 per cent, per annum from April 26, 1899, and 10 per cent, attorney’s fees on the aggregate of said principal and interest — which said sum of $6210.00 is declared to be the total amount of the loan made by plaintiff to defendant on April 26, 1899, and secured by mortgage of that date.

It is further ordered, adjudged and decreed that in respect to the sum of two thousand seven hundred and ninety dollars of the said loan, together with interest and attorney’s fees thereon; the judgment of the court a qua be avoided and reversed, and as to said amount and interest and fees the injunction be made perpetual — costs of both courts in so far as the injunction proceedings are concerned to be borne by the plaintiff (Mrs. Taft); those of the executory process by defendant (Donnes).

Rehearing refused.