text:
    No. 10,303.
    Western Assurance Company vs. Charles L. Uhlhorn.
    1. An objection to the introduction of any eviden.ce, in support of a demand contained in an answer, on the ground that it is too vague and indefinite, cannot prevail, if it appears from kindred averments of the plaintiff’s petition,, that the character of the transactions are well known to both parties. •
    2. If the pleadings are of such character as to advise the parties of the issues respectively made, and to enable them to introduce all the.evidence in-their power, the purpose of the law lias been effected.
    3. In a suit of a principal against a contumacious agent, for a settlement of accounts, and the recovery of the balance found to be due, in - which the defendant claims reimbursement for certain expenditures, the onus probancliis*on the latter, and he must show, by a satisfactory preponderance of evidence that; such disbursements were made for the account of the principal, and that same were authorized and acceptod by the principal, otherwise his claim for reimbursement will be denied. •
    4. Although a verdict of a jury, upon a question.of fact; is entitled to great weight and consideration, yet, if there is no question as to;the character, or credibility of witnesses, and no question of false swearing and the like, .but only a question of tbe weight and sufficiency of evidence, it occupies just the samó'place as other findiugs by a court of first instaneo, and like thorn may be revised or annulled, and for like reasons.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      J. P. Blair for Plaintiff and Appellant.

      Jolrn M. Baldwin for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

This controversy is with reference to an alleged indebtedness of the defendant, as agent of the plaintiff company, on a settlement and proper adjustment of accounts. The plaintiff demands judgment for $2441, with eight per cent interest from the 3d of March, 1888, and the defendant disavows any indebtedness whatever. These issues were tried and decided by a jury, who rendered a verdict in favor of the defendant, and from the judgment based thereon, the plaintiff has appealed.

The petition of the plaintiff states its case thus:

That it is engaged in the fire insurance business in Canada and the United States; that L. M. Tucker, of Columbus, Mississippi, as the general agent for its Southern department, embracing the State of Louisiana, on or about the 1st of April, 1882, appointed the defendant its local agent, with domicile in New Orleans, for the purpose of soliciting risks, of collecting premiums, and remitting same to Mm for the company, and to whom he was required to make monthly reports; and that the agreed compensation for Ms services was a per centum of commission on the amount of premiums collected.

That defendant accepted said agency and acted as such until he was discharged, and that, on final settlement, he is due the company the sum above specified as the balance of collections received and business done, during the months of August, September, October, November and December, 1887, and January, 1888; and that same is evidenced by an annexed account.

The answer of defendant is a general denial except as to special admissions. After specially denying any indebtedness to plaintiff, the answer proceeds as follows: Further answering, defendant admits that he was for some years the agent of plaintiff, but avers that he has rendered a correct and final account of Ms agency, and has made a full and complete settlement with plaintiff. Further answering, defendant avers that the sum of twenty-four hundred and forty-one dollars, now claimed of Mm by plaintiff, was paid by defendant in the usual course of business to various insurance companies, agencies and other parties ; that the money so paid was rebates or brokerages on premiums for insurances placed with plaintiff company, by said agencies and companies, and that defendant holds receipts for same. ‘ Further answering, defendant avers that after said rebates and brokerages • were paid, it was agreed and understood between plaintiff company, through its general agent, and himself that said rebates or brokerages were assumed by said company.”

Thus it is made to appear that the questions to be decided are, first, whether the defendant did pay the sum' of $2441 to other insurance companies in rebates, or brokerages on premiums for insurances placed with the plaintiff, and second, whether, after same were so paid, “it was agreed and understood between plaintiff, through its general agent, and the defendant, that said rebates, or brokerages were assumed by said company.”

•Practically there is no dispute as .to. the correctness of the plaintiff’s account, in other respects.

It,will be proper, at this juncture, to examine the hill of exceptions retained by the plaintiff’s counsel to'the admissibility of the defendant’s evidence, in support of the.twb foregoing propositions.

■ His objections were urged against all of the evidence of defendant, in support of Ms claims, because they are too indefinitely, and vaguely pleaded to disclose whether they are claims in compensation or reconvention, and because “ the time during which these brokerages were received is not alleged in defendant’s answer; * * and the plaintiff is, not able to make its defense, which would grow out of time when the claim of the defendant arose.” ' ’

The answer is not as clear as it ought to have been in its statement of the dates; but, .when we take into consideration the quoted averments of the- plaintiff’s petition, the course of admitted dealings between the defendant and the plaintiff’s general agent, and the given dates of their commencement and conclusion, we -cannot appreciate the suggested difficulties of the plaintiff’s situation: , Indeed, when we bring to bear on this issue the light afforded by an examination of the record, it becomes quite apparent that this geneial agent was fully possessed of information in respect to the dates and character of the defendant’s claims. . ■ , .

The answer of the defendant states' his reliance upon an agreement charged to have been made with the .general agent, to bind the company.

No-averment is contained therein to'the effect that the company was hound to make reimbursement through other instrumentality.

As to whether the claim of the defendant is a demand in compensation or reconvention, is a question which does not arise on an objection to the admissibility of evidence.

The ruling of the trial judge was correct.

Under the circumstances of this case, we think that both parties have enjoyed full opportunity of introducing all the evidence in their power, and if the ^Headings give full scope to evidence, the purpose of the law has been effected.

On the merits the testimony is conflicting, and somewhat involved, but a careful examination of it has satisfied us that the verdict and judgment rendered in the court a qua are clearly erroneous.

It is an admitted fact that defendant’s compensation prior to March, 1886, was controlled by a parol agreement between .Capt. Tucker, general agent, an'd himself, and that it consisted exclusively of seventeen and one-lialf per cent commissions upon gross premiums earned.

It seems that there exists among insurance companies and agents, in the City of New Orleans, a custom of demanding rebates upon commissions for reinsurance; that is, when a company has a risk offered it, which, although desirable, is one considered larger than it deems safe to accept, takes the same, and places a portion of it with another as a reinsurance, and the other receives its share of the premium, less the amount it is bound to pay to the company placing it, as a brokerage.

While it is true that, during the period of time between April, 1882, (when the defendant was first appointed agent) and March, 1886 — this being the time during which the parol contract referred to continued— the defendant did considerable business in such reinsurances, but his books and accounts show that he made no charge therefor against the company, and as a witness he makes no claim to that effect.

On the contrary, during the period referred to, he remitted monthly to Capt. Tucker, general agent, the total premiums collected, less his 17-ür per cent commissions, and made no demand for more.

It is admitted that in March, 1886, Capt. Tucker changed the defendant’s contract so as to allow him 15 per cent commissions for insurance, and 5 per cent reinsurance brokerage. This contract is in writing. It was subsequently amended, so as to allow defendant 10 per cent brokerage. All the evidence tends to show that these two alterations of the contract had exclusive reference to the future, and none to the past. Hence it is clear that such an allowance as defendant now demands must come from moneys actually pcdd over to the company’s agent prior to March, 1886, and is in the nature of a demand for reimbursement. The defendant, while under cross-examination as a witness, admitted that the plaintiff’s account is perfectly 'cqrrect, in all other particulars ; that is, if his claim for brokerages was alloyed, the account would be correct.

This amount is $2441, and istheiohly matter of dispute.

This claim rests exclusively upon the alleged promises made by Capt. Tucker, in the course of various conversations had and held with defendant, at different dates subsequent- to March, 1886.

According' to defendant’s idea, or recollection of them, Capt. Tucker at first recognized the justice of his claim, then agreed to recommend it to the company for their allowance, then referred it to Mr. Dodd, as general superintendent of all the companies’ agents, and, finally, approved it, and directed him to enter same as a credit on his account. In accordance with this view he rendered his final account and placed his claim as a credit, and paid the balance of $597 19.

Capt. Tucker’s statement is, that £it the time of defendant’s employment, the question of reinsurance brokerages was discussed, and the defendant’s compensation of 17-J- per cent was intended to, and did include and cover'the same; and thfit'this arrangement was perfectly satisfactory to him, and that up to March, 1886, he acted under it, as his monthly accounts will show.

He says that he has frequently demanded payment of defendant, of the account sued on, and that he has never denied its correctness.

That the defendant never made any claim for reimbursement of these brokerages until December, 1887, and he, at that time, did not make' any demand for same but expressed himself as feeling hopeful of the company’s making some allowance on that score.

That the first specific demand to that effect was not made until he rendered his account in February, 1888.

He says explicitly that “there never was any agreement by myself, or by the company, to reimburse the defendant for brokerages paid out by him; and, during this period of time,' there never was an intimation, or suggestion from the defendant that he expected to be reimbursed.”

lie just as emphatically states that there never was anything' “ in either the writteii or spoken correspondence between us, other than a reqitest that the company would allow him, as a favor, something for the hard work he had done to promote its interests; but no amount was stated, and no definite claim was made.”

In support of his recollection he cites the circumstance of his having-made a demand on the defendant for payment in 1887, to which the latter replied that he was expecting- to receive several thousands of dollars from certaiii pending real estate negotiations, which would put Mm on his feet financially, and that the former need feel no apprehensions.

In order to be precise, we will quote from the defendant’s testimony as a witness, the following:

“ Q. Before 1886, did you consider that you had any claim against the company for brokerage 9
“A. I did not.
“ Q. What did you base your claim against the company upon 9
“ A. I based my claim because, at the time I growled about 17-J per oent, and called the attention of Capt. Tucker, that it had cost me up to that time $2441. I wrote to him, about that time, and he confessed it, and therefor made the change * * to fifteen and five.
“ Q. I understand that you do not consider that you have a right to credit yourself with this amount of brokerage until at a certain time. Will you please state when that time was, and what took place about that time that had justified yourself in believing that you could credit yourself with these items 9
“ A. Well, personal conversations with Capt. Tucker, during the month of May * * 1886. * * I regarded Capt. Tucker, in these conversations, to have acknowledged the claim as a valid one, and to have allowed it. I never could heme charged it, if he had not done so; it would have been improper for me to have done so unless he had allowed it.”

When pressed for a more direct answer, by Ms counsel, he said: “After writing that letter, he happened to drop in at my office, and answered it, as it were, in person, by holding it in abeyance until Mr. Dodd had answered, he talcing it for granted that the thing would be done at once. * * The substance of it (the conversation) was that there was no trouble at all about it, but, as a matter of business, he would get Mr. Dodd to confirm it; that was about the substance of it, and Mr. Tucker himself was superior law, and there was no occasion to refer it to Mr. Dodd.”

On Ms cross-examination, he says, again: “ The substance of the last conversation was that he thought I ought not to charge these things. I told him that I would do it; that he had instructed me do it, and that he had no right to recede from what he had instructed me again, and again. Prom what he had told me, and from what he had said; and he refused to do it. * •* He then parted with me, under the most pleasant circumstances, saying its hard, but I will have to stand it.”

In the further cross-examination the following transpired, viz:

“ Q. At the time, was it, or not your understanding with Capt. Tucker, that he was to refer the request to the insurance company, in order to get them to allow it ?
A. Yes, sir.
“ Q. Was not tliat your understanding at the time ?
A. Yes, sir.
ft ft , ft ft ft ft ft ft ft ft ft ft
“ Q. This promise was to get the consent of the company ?”
A. Yes, sir.”

The testimony of Mr. Haskell is to the same effect. He says, of a conversation he held with Capt. Tucker on the subject, I think that the exact words were that he would endeavor to do everything that he could for Mr. Ulillioln in regard to these brokerages; * -* that he would try and use his influence with the company to get them paid.”

Taking all of these statements into consideration, the defendant’s claim is not made out; and the testimony of De Gruey does not help his cause. It does not relate, in our -opinion, to the matter at issue. He was an agent of the Factors’ and Traders’ Insurance Company, and related the substance of an interview he had with Capt. Tucker, with regard to reinsurance brokerages of ten per cent, which Ms company was charging. This occurred in 1886. Having explained the matter to Capt. Tucker, the latter said:

Well * * in that case I think Charlie Uhlliorn ought not to lose that. I will see that thing is made all right * * He has mentioned to me the fact that he ought not to lose it, and 1 am going to see that he will ■not lose it.”

(The italics used in this and the foregoing quotation are those of the writer).

It was about that time that defendant’s brokerages were increased.

This conversation had exclusive relation to future brokerages, and not to those claimed in the past, by the defendant. This is clear when we consider the fact that this witness testifies that he never heard any of the conversations between the defendant and Capt. Tucker; and there is nothing in Ms evidence to indicate that he had any knowledge of his claim. Indeed, it seems perfectly certain that, as this occurred in 1886, this interview antedated defendant’s, first demand, by about eighteen months.

The correspondence which passed between the defendant and Capt. Tucker still further confirms our view. In-the former’s letter of March 3d, 1888, he claims credit for $2441, for the first time; and the latter replying says, under date March 8th, 1888, viz: “We think the unacknowledged remittances ’ to which you refer, have been acknowledged by us, except of course the claim of '$2441 for brokerages,” etc. To this defendant made no reply; and Capt. Tucker repeated his letter, in substance, under date of March 14, 1888, as follows, viz:

“ Amount of balance due from Chas. L. Uhlhorn, agent, as per our books........................................$3,038 19
“■ Less the amount of his claim for brokerages disallowed by us...............................\................ 2,441 00
“ Leaving a balance admitted of...................... $ 597 19 ”

The defendant’s theory is not confirmed by his own letters, for under date Jtdy 7th, 1886, he wrote Capt. Tucker as follows, viz:

“ When Mr. Tucker was last here, of his own accord, he mentioned that he would write to the home company requesting them to reimburse me for the commission, or brokerage I had spent in conducting their business. This would he gratifying in the extreme, and 1 sincerely hope every effort in that direction ivitt he successful. Please let me know the result of your correspondence.”

Again in his letter under date February 11th, 1887, the following occurs, viz:

“Now while they are rich and prosperous, I wish, if you can, to jog them about being generous. Figuring on my books in the dull times, I ñnd I have spent over $2400, etc.”

Again in his letter, under date of February 2nd, 1888, he uses this language, viz:

“My real agency and ownership is derived from them. If you revoke it, I will cease to represent you and appeal to them. * * I now enclose you cash vouchers for $2441. It is a legitimate charge, confessed by you again and again, and must be acljusled. We will split wide open if it is not.”

Far from showing any admitted liability of the company for this claim for brokerages, the contrary is, to our thinking, fully ■ established by the evidence.

All the moneys which were received by the defendant for reinsurances, were, from time to time, during the period of his employment prior to March, 1886, turned in to Capt. Tucker for the company, less 17-i- per cent commissions. They have been paid to the company in the regular course of dealing, by Capt. Tucker, and have been entirely beyond the latter’s control for years. It is no longer matter appertaining to his employment as general agent. Concerning this money there are no contractual-relations existing between Capt. Tucker and the plaintiff.

There is nothing in this record which convinces us of Capt. Tucker’s intention to bind the plaintiff for the defendant’s claim; and, if he had entertained sucli intention, we are of the opinion that, wider Ms general authoritg as an agent, he could not have done so, without their special permission.

It is altogether unnecessary for us to examine and pass upon the plaintiff’s plea of prescription, in this view 'of the case.

We think the jury erred in finding for the defendant.

It is, therefore, ordered and decreed that the verdict of the jury and the judgment thereon pronounced,- be. annulled and set aside; and it is further ordered and decreed that the plaintiff and appellant do have and recover of and from the defendant and appellee the sum of twenty-four hundred and forty-one dollars, with eight per cent per annum interest from the 3rd of March, 1888, and that the defendant’s and appellee’s demand and counter-claim be rejected and disallowed, and that he pay all costs of both courts.


source: Caselaw Access Project

author: McEnery, J. Fenner, J.

license: Public Domain

text:
    No. 10,231.
    George H. Boyd et als. vs A. & H. Heine et als.
    1. Where a suit was brought and 0110 of the plaintiffs was the foreign executor, who had failed to qualify in this State, and an exception was filed to his capacity to stand in judgment and overruled, and the defendants answered, after which letters of dative testamentary executorship were properly issued to a resident of the State, who intervened and joined the plaintiff* in the original suit, held that an exception to his capacity was proporly overruled. An intervention may be filed at any stage of the case, whether before or after issue joined, provided the intervention does not retard the principal suit. The party intervening may join the plaintiff* in doing the same thing, and it is only necessary to have an interest in the success of either party, to entitle the party to intervene.
    2. Where a surviving partner or co-obliger sues for the whole amount of a claim and,citation is served upon the defendants, that is a judicial notification and sufficient knowledge of the claim which is sought to be enforced and there is a legal interruption of prescription.
    3. Where a party receives merchandise and uses the same there is an implied contract to pay the price.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Merrick eft Merrick for Plaintiffs and Appellees.

      Farrar, Jonas eft Kruttsehnitt for Defendants and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

Geo. H. Boyd and Elizabeth Boyd and Harriett Boyd, testamentary-executors of Ed. A. Boyd, arid residents of the State of New York, brought suit agaiust Arman cl and Heinrich' Heine, Charles Garvey and Thomas O’Neil and the Pickwick Club, in solido, for the sum of six thousand three hundred and seventy-nine dollars, at 6 per cent interest from July 3d, 1884, with recognition of privilege on the Pickwick Club building in the City of New Orleans. The amount is for cathedral or colored glass placed in the Pickwick Club building.

An exception to the capacity of the foreign executors of Ed. A. Boyd to stand in judgment was filed by defendants. The exception was overruled. It will not be necessary to pass upon the ruling of the court on this exception.

To cure the defect in not having the succession of Ed. A. Boyd properly represented according to the laws of this State, E. T. Merrick, Jr., after defendants had answered, intervened in the suit, joining the plaintiffs, alleging his appointment and qualification in this State as dative testamentary executor in the succession of Boyd. The petition of intervention was accompanied by letters of dative testamentary executorship.

' Exceptions by all the defendants were filed to the intervention denying the right of the executor to intervene, or that he had been duly appointed and qualified, or that he had any right whatever to intervene in the suit. The exceptions were overruled and defendants answered pleading a general denial to intervenor’s demand, and that the petition of intervention contained matter contradictory to the original petition and could not be maintained.

The exceptions to the intervention were properly maintained. The suit was still pending. An intervention may be filed at any stage of the case, whether before or after issue joined, provided the intervention does not retard the principal suit. C. P. 391.

The party intervening may join the plaintiff in claiming the same thing, and in order to intervene it is only necessary to have an interest in the success of either party. The executor of Boyd had an interest in joining plaintiff and demanding the same thing. All x>arties in interest by the intervention were made parties to the suit. It was the succession of Boyd which was joined with the plaintiffs in the original suit, but which was joined by foreign executors, who had failed to qualify in this State. It is the same plaintiff, the succession of Boyd, who files an appearance by intervening. There is, therefore, in the intervention, the same plaintiff as in the original suit and who is demanding the same thing. There is, therefore, no contradiction between the original suit and tlic petition presented and filed by' intervention. Womack vs. Womack, 2 Ann. 339.

Defendants next pleaded the prescription of three years to the halt oí the claim sued on, being amount of intervenor’s interest in the amount claimed. The plea is based upon the' fact that in the original suit the succession of Boyd was not represented and the petition of intervention was filed after prescription had barred the claiin-of intervenor.

The original suit was for the whole amount claimed to be due.

The defendants were properly cited.

Geo. II. Boyd was the surviving partner of the commercial firm lately composed of Geo. H. Boyd and Ed. A. Boyd. The defendants, by the citation served upon them, had judicial notification and sufficient knowledge of the claim which was sought.to be enforced against them.

There was, therefore, a legal interruption -of prescription by the suit first instituted in which the citations were served on defendants before the term of prescription had commenced. Flower vs. O’Connor, 17 L. 213; Satterly vs. Morgan, 33 Ann. 847; 36 Ann. 847; 40 Ann. 411.

II.

The- facts in this ease are that the firm of Boyd & Son furnished cathedral glass and mirrors, which, with other charges and freight added, amounted to $9379, for the Pickwick Club. The Heines were putting up the building for the Pickwick Club, which was to become the lesssee of the building, and to occupy it. Jas. G. Clark-was the president of the club. The club never authorized him to contract for any material for the club. In fact they had nothing to do with the erection and ornamentation of the building, further than. as its future occupants to see that it was constructed and finished by the Heines suitably for the uses for which it was intended. Jas. G. Clark acted as the agent of the Heines in contracting for the cathedral glass, having been authorized by the agent of the Heines, who resided in this city. His contract was to be limited, for this purpose, to $3000. Boyd & Son had no knowledge of the limitation.

There is no doubt but that the amount of material claimed by the plaintiffs was furnished and put in the clubhouse. And there is no doubt but that the stained cathedral glass has enured to the benefit of the Heines, the owners of the club building.

The Pickwick Club, as it never authorized its president, J. G. Clark, to purchase the cathedral glass, or gave him, by vote or resolution, any instructions in the matter, and as they received no benefit from the furnishing of the glass, and as their president was really acting as the agent of the owners of the building in making a contract for the same, it is clear that tlie club cannot be made liable for any portion of said material.

The question of fact to be determined is what were the plans and measurements submitted to Boyd & Son and upon which they based their estimate and. made their proposal. On this point there is a vast amount of conflicting testimony. Plaintiffs claim that the proposal made by Boyd & Son and accepted by defendants, was upon a list or measurement mailed to them by J. G. Clark, for 6587-J feet, and the defendants allege it was on a list or measurement made by Garvey & Co., given to J. G.'Clark, who submitted the same on the day that the contract was made. This list was for an estimate of 1400 feet.

On May 16, 1883, Jamos G. Clark wrote to Boyd & Son a letter in which he says .-

"Enclosed, please find memorandum of colored glass required for the Pickwick Club building and for which I Would ask your estimate. Please return the inclosed estimate and oblige,
“ James G. Clark.”

In reply to this Boyd & Son made an estimate and forwarded plans, etc., and returned the papers forwraded by Clark.

Clark acknowledged their receipt on June 20th, 1883.

The letter of May 16th contained the list or measurement for 6587-i-feet of glass. An estimate for $5500 was made for the work on tliis list by Boyd & Son.

James G. Clark went to New York, and several days before the contract of 7th September was made, visited the office of Boyd & Son, and not finding Geo. H. Boyd in, left a bundle of papers containing the estimates of measurement made by O’Neil & Garvey. This bundle of papers was returned to Clark’s hotel without being opened by Boyd & Son. There is no evidence that they had been informed by Clark of the contents of the package of papers, or that the firm had any knowledge of its contents. There was some negotiation to get Boyd & Son to reduce the estimate they had made on the first list sent to them by J. G. Clark. It is not very probable that they would make a reduction on an estimate for 1400 feet to $3000, when they had calculated $5500 on 858 feet.

' On Sept. 1, 1883, James G. Clark, wrote to Gaily, the agent of the Heines, that after much trouble and many estimates he could not. get the , stained glass for less ’than $2500 or $3000, according to selection, which was more than allowance in specifications * * * He says he has succeeded in reducing their estimate from $5500 to the above figures, and he requests Gaily, to authorize Mm to accept the proposal. This letter was written on the 1st of September, and contains the conditions of the contract of the- 7th of September. Gaily wired him to make the best contract he.could, with conditions in proper shape, not to exceed $2500 to $3000. From Baltimore he forwarded the proposal of Boyd & Son to Gaily, with the information that after many estimates it was the cheapest and best contract he could make.

The following is the contract:

New York, September 7, 1883.

Jas. G. Clark, Esq., N. O., La.

Dear Sir — We beg herewith to hand you our proposition for furnishing the stained cathedral glass for Pickwick Club building, as follows, viz: We agree to furnish Messrs. O’Neil & Garvey, and Mr. M. Gaily, for the Pickwick Club building in New Orleans, the stained cathedral glass for all the transoms, stairway and oriel windows, in accordance with plans and measurements, as per list already submitted by Messrs. O’Neill & Garvey. The work to be executed in the most artistic manner and guaranteed satisfactory to Mr. Jas. G. Clark, president, or to be taken out at once and replaced until it meets his approval. All the work to be placed in its proper place in the building, complete in every particular, not later than Nov. 11, 1883, unless afterwards agreed, for the sum of three thousand dollars.

Yours truly,

Edward A. Boyd & Sons.

Accepted for Messrs. O’Neil & Garvey and H. Gaily.

Jas. G. Clark;, President.

The original list of sizes forwarded to Boyd & Son, upon which to make an estimate, contains a detailed statement of sizes and measurements amounting to 568 7-10. There is no dispute as to the price of the glass on this list amounting to $3000.

Thomas Bowman, a witness for the plaintiffs, says he was present when the contract was made and signed, and that it was based on the list for 658 7-10 feet.

Clark says the list inclosed on May 16, 1883, was preliminary to the obtaining of prices, estimates and designs, and that it did not contain a full estimate. But in his letter he asks for estimates for the glass for the Pickwick building, on nieasurements inclosed by him, and there is nothing in the letters to induce Boyd & Son to believe that it was only a partial estimate. In the contract it is stated that the same is based on a list “already submitted.” Clark’s statement is that the list for 1400 feet was submitted on the day and at the time of the contract. While not stating this fact in this exact language, this is the logical conclusion of his testimony. The reference,,then, must have been to a list submitted some date prior to the contract. At .all events, Clark was responsible for the error, and as lie had .authority from the Heine's to make the contract,' they are resx>onsible for it, and must bear the burden. .• .

Clark was authorized by Gaily, the agent of the Heines, and as they have paid a part of the contract, they confirm the act of their agent, Gaily.

We are of opinion that the contract was based upon the list first forwarded by J. G. Clark. It is shown that by agreement of the parties, instead of filling the sashes in New Orleans, they were sent to New York to be there filled. After filling sashes to the amount of three thousand dollars, Boyd & Son had complied with their. agreement. It is shown by the record that after the contract was signed there were some alterations in the plans, and additional material ordered by letter by J. G. Clark.

Boyd & Son might' well conclude that they were dealing with responsible parties, and furnish on account the glass ordered. After having filled sashes to the amount- of three thousand dollars, every additional sash, therefore, forwarded to New York, became an implied order for the filling of the same.

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that actually imply a consent to such contract. To receive goods from a merchant without express promise and to use them, implies a contract to pay the value.” R. C. C. 1816.

Defendant Heines have received the cathedral glass, and have kept it for several years, and have used and enjoyed it in the adornment and ornamentation of their building, enhancing its value and increasing their revenue. They must pay the price, at the rate for whicli the saino materials had been furnished. Defendants prove that the glass was furnished at the same rate.

The defendants are not liable for the freight, as the contract stated that the glass was to be put in by the plaintiffs in the City of New Orleans. A. & H. Heine hfive paid on the contract $1087 82, and a bill for freight amounting to $62 15. The amount for alteration of plans and designs is not sufficiently proven.

The amount due plaintiffs and intervenors for the amount of glass furnished in excess of the 558 10-7 feet, we fix at $6152 62, adopting the calculation of the district judge, and they are entitled to a judgment against A. & H. Heine for said amount, less the above credits. The Pickwick Club purchased mirrors for which they alone received the benefit and are responsible.

It admits an indebtedness of $2142'68. On this amount they have paid $1912 93, leaving a balance due of $229 75.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and we now proceed to render such judgment as should have been rendered by the lower court. It is now ordered, adjudged and decreed that the plaintiff and intervenor do have and recover judgment against Armand I-Iiene and Heinrich Heine for the sum of six thousand one hundred and fifty-two dollars and sixty-two cents, amount of colored cathedral glass sold and delivered to said Armand and Heinrich Heine, less a credit of eleven hundred and forty-nine dollars and ninety-seven cents, with six per cent interest from judicial demand. And that said plaintiff and intervenor do have and recover judgment against the Pickwick Club for the sum of twenty-one hundred and forty-two dollars and sixty-eight cents, less a credit of nineteen hundred-and twelve dollars and ninety-three cents, with five per cent interest from judicial demand.

The defendants, A. & H. Heine and the Pickwick Club, to pay equally the costs of both courts.

On Rehearing.

Fenner, J.

We granted a rehearing on the suggestion made by defendants of an error of calculation, committed by the district judge and perpetuated by us, in estimating the amount due by defendants.

No tiseful purpose would be subserved by going into details. It suffices to say that the testimony in the record, including that of Mr. Boyd himself, satisfies us that the original contract to furnish 658 30-100 feet of glass for $3000, meant feet measured according to the New Orleans standard, i. e. the superficies of the frames to be filled, whether elliptical or otherwise. This appears from Garvey’s list, which was the basis of that contract and which was made- by him according to the New Orleans standard. As the price per foot thus measured is the admitted price of the additional glass furnished, there was error in allowing the same price according to. a different standard of measurement.

It is, therefore, ordered that our former decree be amended so as to reduce the amount of the judgment allowed against A. & II. Heine from $6152 62 to $5172 62, subject to credits allowed therein, and that, as thus amended, our former decree be maintained.


author: McEnery, J.

text:
    No. 10,204.
    Succession of Francis H. Rogers. Opposition of Louis F. Pecot to Tableau of Classificaton and Distribution.
    A twelve months’ bond which operates as a vendor’s privilege must, in the settlement of a succession, be paid by preference and priority over all other privileges, except the expenses for the sale of the property, affixing seals and other expenses necessary to the sale of the property.
    A privilege for supplies can only be enforced on the crop for which they were furnished.
    An administrator who sues the succession for a debt due to himself, and cites himself as administrator, cannot, by such a proceeding, conclude the creditors of the succession by the judgment rendered in the case. The creditors, by opposition to his account, can inquire into his claim as though no judgment had been rendered.
    An administrator who claims a privilege on personal property of the succession, and sells the real estate and personal property in bulk, without separate appraisement, loses his privilege.
    PPEAL from the Nineteenth District Court, Parish of St. Mary. Winchester, J., ad hoc.

      I). Oaffery for Opponent ancl Appellant.

      Foster Brothers, contra.

   The opinion of the Court was delivered by

McEnery, J.

W. P. Kemper, the administrator of the succession of Francis H. Rogers, filed his tableau of classification and distribution of the funds of said succession.

The assets of the succession are the proceeds of the sale of the immovable property, the Pleasant Side Plantation, live stock and agricultural implements sold in bulk, amounting to $7600, and the proceeds of the sale of sugar and molasses, amounting to $2626 75. ,

The opponent, the owner and holder of a twelve months’ bond, which operates as a vendor’s privilege, claims that his twelve months’ bond should be firs' aid ^at of the fund realized from the sale of the real estate, and al _ opposes the claim of Foster Brothers, for attorney fees, for attending 'b litigation in tlie United States Court, as the services rendered do not belong to that class of law charges to which a privilege is attached and to the claim of the administrator for a privilege for $1481 10 and interest. There are other items opposed in the account, but they seem to be abandoned by the opponent, as in the brief it is asked that “the tableau of classification should be so amended as to place the opponent’s bond as the first privilege after the law charges, and by striking therefrom the privilege of W. B. Kemper for $1481 10, and the fee of $400 allowed Foster Brothers for appearing before the United States Court,” and as thus amended the judgment of homologation be affirmed.

The twelve months’ bond and interest owned by opponent amounted td $6181 32 at the date of filing the account. It is secured by the vendor’s privilege on the immovable property, and therefore he has preference and priority on the proceeds of the sale of the property over all other privileges, except the expenses for the selling of the property, affixing seals, costs of inventory, etc. Sue. Forstall, 39 Ann. 1052.

The claim of Foster Brothers for services in the United States Court was incident to and necessary for the protection of the succession property, and is, therefore, to the amount allowed, a valid and privileged claim against the succession. But we are inclined to the opinion that, considering the amount of the succession, and the character of the litigation accompanying its administration, the fee of $700, allowed by the administrator, is sufficient to cover all services rendered, including attention to the rules in the United States Court.

The amount of $1481 10 with interest, claimed as a privileged debt by the administrator, should not be allowed as such. The claim is based upon a note given by the deceased to Kemper, the administrator, in 1875, for seed cane, mules and agricultural implements sold to him. It' was recorded March 8, 1875.» Rogers died in 1879, and in 1881 Kemper brought suit against himself as administrator, and obtained a judgment recognizing his privilege. No one opposed the suit. There is no argument needed to show that such a judgment is not binding on the creditors. He sold seed cane in 1875, and in 1881. When he asserted his privilege, many crops had been made, and as many times the seed cane had reproduced itself. His privilege for this item could only have been enforced against the crop upon which he had made advances. The mules and agricultural implements, if they had not diminished in numbers, must have deteriorated in value. They were . d by the administrator with the plantation, and were confusedly sold with or r things, without separate appraisement and identification. He has therefore, lost his privilege. 37 Ann., p. 8 — 857.

It is, therefore, ordered, adjudged and decreed that the claim of the administrator for $1481 10, with eight per cent interest from February 5, 1876, be rejected as a privileged debt, and that.the claim of Foster Brothers be reduced to $700, and as such it bo recognized as a privileged debt, and that the opponent’s twelve months’ bond be placed on the tableau of classification as a first privilege after the payment of the law charges, and as thus amended the judgment homologating the account bo affirmed.


author: Bermudez, C. J.

text:
    No. 10,344.
    The State of Louisiana vs. H. B. Porter.
    A prisoner who, after sentence, escapes from custody, during the pending of his appeal, forfeits all rights to ho heard and cannot ho represented hy counsel on appeal*
    APPEAL from the Twenty-seventh District Court, Parish of Richland. Willicms, J.

      Walter II. Bogers, Attorney General, for the State, Appellee.

      David Todd for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

When this case was called for trial, the Attorney General moved for the dismissal of the appeal, on the ground that the defendant had broken jail and was at large, supporting his motion by conclusive evidence of the fact.

Counsel claiming to represent the defendant, under authority since the escape, has moved counter, for a continuance, giving the court the assurance that his client would surrender in time for trial when the case shall again come up.

The court has no mercy to extend to one who has voluntarily placed himself beyond the law and, however much it may lend a willing ear to the request and assurances of counsel, it would fail in its duty to compromise with jail breaking and convicted felons.

It is now settled that a prisoner under conviction and sentence, who escalios from custody during- the pendency of his appeal, cannot by counsel prosecute his appeal and forfeits all rights to be heard on the same. State vs. Wright, 32 Ann. 1017; State vs. Edwards, 36 Ann. 863; State vs. Mansfield, 38 Ann. 563.

It is, therefore, ordered that the appeal heroin bo dismissed w’th costs.


text:
    No. 10,347.
    The State ex rel. Police Jury of the Parish of Jefferson vs. The Judge of First Justice’s Court for Parish of Jefferson.
    A justice oí* the peace whoso jurisdiction is limited to part of a parish which is subject to the jurisdiction of a police jury, has jurisdiction in a suit against the police jury for an amount not exceeding $100.
    The fact that the sum claimed ($8á) exceeds the lower limit of the jurisdiction of the district court, does not divest the justice of the peace of jurisdiction and render him incompetent to decido the case before him.
    Prohibition does not lie in such case.
    A PPLICATION for Prohibition.

      OunningJtum (& Lyons for the Relator.

      II. N. Gautier for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

Fowler having sued the police jury before the first justice of the peace of the parish, the defendant filed an exception to the jurisdiction, which was overruled. The exception rests on the grounds: That the territorial jurisdiction of the justice of the peace does not extend all over the parish, but is limited to the first ward only, and that the amount sued for, $84, being within the jurisdiction of the Twenty-sixth Judicial District- Court for the Parish of Jefferson, ought to have boon claimed there.

The theory of the defence is that the police jury, whose domicil is the entire parish, is not amenable before a court, the jurisdiction of which is restricted to part of the territory in which the domicil is established.

In support of that position reference is made to the ruling in Berthaud vs. Police Jury of Jefferson, 7 R. 550, in which it was held, that the defendant could not be sued before a city court, the jurisdiction of which was confined to certain municipal boundaries.

The ruling is inapplicable to the plesent case.

The .City of Lafayette, incorporated in 1833, was provided with its own courts, which were vested with jurisdiction over its territorial boundaries. It was a distinct organization, a political corporation, having its own autonomy, independent from the police jury, the inhabitants of which were relieved from parish taxes and exempt from suit, in the parish courts. The police jury had no jurisdiction over the territory represented by the City of Lafayette. The city was not the parish and the parish was not the city.

The fact that the officers representing the police jury resided within the municipal territory of the City of Lafayette did not confer jurisdiction to the city courts over the police jury.

In the present case, the police jury has jurisdiction over the territory constituting the entire parish, over part of which the justice of the peace has jurisdiction, and the justice of the peace has jurisdiction over the police jury, as a body corporate.

As the domicil of the police jury is located within the parish, extending over all and any part of the parish over which it exercises its jurisdiction, it follows, on the principle that all the parts constitute the whole, or that the whole is composed of all its parts, that its domicil is, as well as elsewhere in the parish, within the jurisdiction of the justice of the peace who has jurisdiction over part of the parish.

Were the proposition advanced true, the consequence would be that the police jury could never be sued in any case, in which the amount would not be within the jurisdiction of the district court. Suing for such amount, before that court, would be doing violenee to the constitutional provision which confines its jurisdiction to amounts exceeding fifty dollars, and without lowering its limit to any sum exceeding zero, taking that figure as the initial point for the computation of a quantity.

To do so would be to say that district courts have jurisdiction over any amount less than fifty dollars, which cannot be done.

It is, therefore, ordered and decreed that the restraining order herein made be rescinded and that the application for a prohibition be refused with costs.


author: Poché, J.

text:
    No. 10,309.
    Louis Schwartz et al. vs. Firemen’s Charitable Association of Sixth District et als.
    Xho Supremo Court) has no jurisdiction of a case presenting a contest between parties‘for certain functions to which no salary is attached.
    The amount of money as the fund of a corporation which tho parties to the suit may manage or control is no element as a matter in dispute in the litigation.
    In construing jurisdictional allegations, the Supreme Court must be guided by the pleadings taken as a whole, and not by strained allegations of pecuniary interests which could never be judicially ascertained.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    IF. It. liielmrdson and David Todd for Plaintiffs and Appellants.

      D. O. TRliott and Olías. G. Oyden for Defendants and Appellees.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The ground of the motion is that, the matter in dispute in this case is not equal in amount to the lower limit of our appellate jurisdiction. '

The controversy involves the contested right, between plaintiffs and defendants, to represent, as delegates, a certain fire company in the Firemen’s Charitable Association of the Sixth District of New Orleans, and plaintiffs are appellants from a judgment which dismissed their action on an exception of no cause of action.

It does not appear from the pleadings that any salary is attached to the fruitions which plaintiffs claim to perform adversedly to the defendants. Hence that element must be eliminated from the pecuniary matter in dispute.

The original petitiou contains the following averment, as the sole jurisdictional allegation:

That petitioners will be damaged to the amount of more than five hundred dollars unless protected by a writ of injunction.”

In an amended or supplemental petition, plaintiffs allege that they as the proper and legally elected representatives. of the Firemen’s Charitable Association of the Sixth District will have control, management and distribution of funds belonging to and coming to said association amounting to more than two thousand five hundred dollars, that unless said fund is properly managed, as it will be by petitioners, the legally elected delegates, it will cause irreparable loss, damage and injury to your petitioners as individual members of said company and association and to said company and association.”

Assuming the violent presumption, that the management of a fund of some $2500 by any other delegates or'representatives but plaintiffs, would inevitably entail an entire loss of the whole fund to its owner, the corporation, it is not possible to conceive how plaintiffs, as members of tlio association, would or could loso tlie same fund, wliicli avowedly is not their individual property.

In construing jurisdictional allegations we must be guided by the real pecuniary interest affecting the parties to the litigation, as disclosed by the pleadings taken as a whole, and not by strained allegations of pecuniary interests which could never be judicially ascertained and determined.

In this connection we have, on more than one occasion, said:

“ But no allegation and no affidavit can create an appealable amount of interest, in a litigation which, from its very nature and essence, presents an issue involving no pecuniary gain or loss to the parties in the suit, and where it is apparent from the pleadings that the only judgment to. be possibly rendered can adjudicate no amount in dispute or dispose-of no fund to be distributed.” Police Jury vs. Miscar, 34 Ann. 836; Buddig vs. Baldwin, 38 Ann. 394; Hite vs. Hinsel, 39 Ann. 113; see also State ex rel. Newman vs. Hayles, 32 Ann. 1135; Amos vs. Starks, 33 Ann. 304; N. O. vs. Apken, 36 Ann. 419.

We are clear in our .conviction that the present case is not within our appellate. j urisdiction.

The present appeal is, therefore, dismissed.


author: Fenner, J.

text:
    No. 10,327.
    Regina W. Schlater vs. A. Wilbert & Sons.
    1. When tlio .appellant prays tlio court to decide tlio caso before it and not to remand it, this will bo treated as a waiver of exceptions to rulings in tbe court below, tlio effect of sustaining which would necessitate a remanding.
    2. So far as errors in tlio ohargo of the judge to the jury arc concerned in civil cases, tlio jurisdiction ovor the law and the facts vested in this court, authorizes it, in its discretion, to disregard them and to apply the law correctly to tlio caso as made on the evidence, tlio whole of which is before us.
    3. On the facts of this case, the verdict of tlio jury is fully sustained by the evidence.
    APPEAL from the Twenty-third District Court, Parish of Iberville., Talbot, J.

      Scmuel Matthews and Ghas. O. Lauve for Plaintiff and Appellant:
    A petition which discloses the facts upon which a claim is made against defendant is sufficient. It is not necessary that it should negative any matters of defense. Olhamvs. Crogham, 3 M. IT. S. 517 ; Matthews vs. Pascal, 13 L. 48; McRea vs. Purvis, 12 Ann. 85.
    Counsel should have full freedom of speech in conducting the cases and in advocating the rights of their constituents. Cooley, Con. Linu 4th ed. p. 555 :
    ‘Any building or work, or fabrication on a public highway, which prevents or hinders its use or enjoyment to the lull extent of public need is considered a public nuisance. Henderson vs. Mayor et al., 3 L. 563; Sheen vs. Iiob Stothart et al., 29 Ann. 630; Alice McCloughry vs. Finney, 37 Ann. 27.'
    A right to make such structures on the public street, for private purposes, cannot be obtained from a municipal corporation. Daublin vs. Mayor of New Orleans; 1M. 187.
    If obtained, extraordinary care is required of the party favored. 1 Thompson on Negligence, p. 344.
    A citizen may maintain an action to abate a nuisance on the public highway. Allard vs. Lobau, 2 N. S. 317; Mayor New Orleans vs. Gravier, 620; Cooley on Torts, 46 and 618.
    Tho action to abate the nuisance may be consolidated with the action for damagbs'caused by the nuisance. C: P. 148; Bauduc vs. Dominique, 8 N. S. 438; Jelks vs. Smith, 5 Ann. 674.
    It is a sufficient ground for a new trial, that the deputy sheriff attending the court interfered in the trial, telling defendants what jurors to select and what to reject. The State vs. Judge Ninth Judicial District, 11 Ann. 79.
    An amendment which does not alter the substance of the demand after issue joined should be allowed. C. P. 419; Castile vs. Dumartrait, 5 N. S. 70; Jelks vs. Smith,’ 5 Ann. 674.
    The master is responsible lor the police of his house and is liable for tho damages caused by things thrown therefrom on the public street. The principle upon which 'this law is founded, is that it is for the public interest that people should walk securely and without danger from accidents of this kind. C. C. Art. 177 (171); Domat’s Civil Law, Cushing’s edition, vol. 1, arts. 1547, 1548, 1555 and 1586.
    'In a suit claiming thousands of dollars as damages, a juror who does not know what a thousand dollars is, is not a competent juror, under Acts of 1877, No. 44.
    Any acts done under tremor and excitement -produced by the misconduct of another from which injuries arise, cannot bo relied upon by him as contributary negligence to shield him from damages caused by such misconduct. 37 Ann. 705, Lehman vs. La. W. Railroad Co.; 38 Ann. 185, Holzab vs. Railroad Co.
    Whoever creates a danger is under the highest obligation to guard against it hurting anybody. Tutrix vs. Sellers & Co., 39 Ann. 1011.
    The public is entitled to the use of each and every part of the public streets. McCloughry vs. Finney, 37 Ann. 27.
    Every one is responsible, not only for the damago occasioned by his own act, but also for the damage which is caused by the things that ho has in custody. 40 Ann. 467; John B. Tates vs. Brush Electric Light and Power Company; Brown vs. Pont R. R. Co., 8 Rob. 45; Jackson vs. Schmitt, 14 Ann. 818; Olioppin vs. N. O. and Ca. R. R. Co., 17 Ann. 19.
    If the defendants discovered any negligence of tho i>laintiff'in timo, by the use of ordinary care, to prevent the injury and did not make use of such care for the purpose, they are justly chargoablo with reckless injury. Cooley on Torts, p. 674.

      B. N. Sims; Alex. Hebert and Geo. Wailes for Defendants and Appellees : • •
    1. The plaintiff, to bo entitled to recover in an action of this kind, must first prove that tho injuries she received resulted from or were caused by some fault or negligence on tho part of the defendants or their employees. Unless this is proved no further inquiry need bo made. 23 Ann. 264, 462 and cases cited; 30 Ann. 16; 34 Ann. 160; 11 Ann.,292; 15 Ann. 448; 36 Ann. 750; 37 Ann. 291. Therefore, the burden of proof is on tho plaintiff.
    2. If tho evidence shows that the injury complained of was the result of carelessness or negligence on tlio part of plaintiff, she cannot recover. In such a case — “It must appear that there was no want of care or imprudence on tho part of the plaintiff by which tho injury was in any manner directly brought upon himself.” 11 Ann. 292.
    “ A party cannot bo heard, if ho has contributed.to the accident by his own negligence and improper managomont.” 1 Ann. 374 and cases cited; 9 Ann. 441 ; 3 Ann. 48, citiiigButterfield vs. Forrester, 11 East 60; 23 Ann. 462; 23 Ann. 264, Mercier vs. Carrollton B. E.; Kedfield on Bailways, Yol. 2, p. 223, sec. 193; 36 Ann. 750 ; 28 Ann.‘320; 37 Ann. 291.
    3. Under the general issue, defendant has an undoubted right to prove contributory negligence, because evidence thereof tends directly to rebut plaintiff’s proof. 9 Ann. 119, Wells vs. St. Dizier; 10 Ann. 80, Boudreaux vs. Tucker. All of the testimony on the part of defendants was introduced and admitted without objection, and plaintiff is bound by it. ‘ Henneu, Yol. 1, p. 493 and 494 ; 23 Ann. 462.
    4. Plaintiff’s amended petition, filed June 6th, 1887 (Bee. 6 and 7), was, upon the exception of defendants (Bee. 8 and 9), properly rejected by the court. Judge’s Opinion. Bee. 12,13' and 14. It was an attempt on the part of plaintiff to inject into and engraft upon her original demand for damages an entirely distinct and different cause of action having no no connection therewith. Authorities same as cited under No. 5.
    5. Plaintiff’s second amended petition (Bee. 90) was utterly inadmissible. It was filed more than one year after the institution of her suit. It was an effort to substitute a new cause of action wholly repugnant to the allegations of her original petition, viz: To charge that the construction of the inclined railway by defendants was illegal and wrongful in the face of the implied averment in said original petition, that said construction was lawful and proper. Plaintiff could not shift her position or gainsay her previous admissions. 5 FT. S. 70 ; 8 FT. S. 438; 51 Ga. 515, 1874; 4 Daly, H.'Y. 69; 42Ind.462; 49 Maine 527; 43 Penn. (7 Wright) 19. Among other objections defendants opposed the plea of prescription. Wright vs. Hart, 44 Penn. 454; 8 Texas 427; 3 La. 339; 2 Bob. 274; Trousdale vs. Thomas, 3 Lea (Tonn.)
    6. Plaintiff’s prayer in her brief to this court “not to remand the case, but to end it,” is a distinct waiver and abandonment of all objections voted in her numerous bills of exceptions, and this cause ought to be determined here upon the issues presented by the original petition and the answer and the evidence adduced thereunder pro and con.

    7» The charge of the judge to the jury was legal and proper. It was his duty to instruct them as he did do, that they were the judges of the law and the facts, but that they should take and apply the law as stated to them by the court, 12 Ann. 386; 30 Ann. 905; 37 Ann. 465; C. P. Art. —
   The opinion of the Court was delivered by

Fenner, J.

The counsel for plaintiff, who is appellant, complain in their brief of sundry rulings of the judge in refusing to permit amendments to their petition, in rejecting evidence, and in refusing certain charges to the jury; but, at the conclusion of their brief, they say: “We pray your honors to examine the case and render such judgment as should have been rendered in the lower court. We pray your honors not to remand the case, but to end it.” We are bound to treat this as a waiver of those exceptions which involve the judge’s rulings in denying the amendments and in rejecting evidence j because the only effect of the sustaining of such exceptions would be to remand the case against the express desire of the exceptor himself. Of course, it would be impossible for us to try the case on pleadings not put at issue in the court below or on rejected evidence not appearing in the record.

So far as the errors complained of in the charge of the judge are concerned, the full jurisdiction of this court over the law and the facts in civil cases, enables us to take the case as established by the evidence in the record and to apply the law correctly, regardless of any errors which may have been committed below. Terrell vs. Boarman, 34 Ann. 306; Vredenburg vs. Behan, 33 Ann. 627.

Plaintiff claims damages for injuries occasioned by a collision between a buggy in which she was riding on a public street in the town of Plaquemine, and a car loaded with lumber which was crossing said street upon an inclined tramway operated by defendants to convey lumber from their saw mill on one side of the street to their lumber yard on the other.

The evidence shows that defendants had been operating this tramway in the same manner for a number of years and that plaintiff, as well as her driver and horse, were familiar with it and were in the frequent habit of crossing it.

On this particular occasion, she was approaching the crossing in her buggy driven by a Mr. Davis, in broad daylight, when a car loaded with lumber was about starting down the incline, attended by two men who hold it on its descent to prevent its going too rapidly. One of the proprietors had gone down to the street, before it started, in order to give “warning to any passengers on the street. As the car started ho saw this buggy approaching and hallooed to hold back and waved his hat to them. He testifies that the driver, Mr. Davis, observed him and bowed his head, but, instead of stopping, continued to move on. The car descended slowly and the horse in the buggy was moving in a walk. After getting through a mudliolc distant about thirty feet from the tramway, the driver pulled his horse to the loft and struck him with the rein, quickening his motion, and directing him diagonally towards the line in which the car was moving, trying to cross ahead of it; but going too near to the car, some of the projecting planks loaded thereon caught in the wheels, lifting them and throwing out the occupants, resulting in the injuries complained of. The buggy, however, was not upset, but righted itself, and the horse ran away.

It is useless to comment on the evidence. We have studied it with great care. We think it establishes, beyond a doubt, that the accident was caused by the gross negligence and rashness of plaintiff’s driver, who was in full view of the moving car and was also warned of its approach in ample time to have halted and to have avoided injury. He disregarded the warning and Continued to move forward in a rash attempt to head off the car and cross before it. In so doing, he drove too close and the projecting lumber caught in the wheels.

The jury did not err in finding a verdict for defendants.

Judgment affirmed.


text:
    No. 10,341.
    State of Louisiana vs. Henry Brown.
    1. Under Section 785 Revised Statutes, tlio law of manslaughter is pertinent in every trial lor murder, because the statute authorizes the jury to find a verdict oí'manslaughter in any trial for murder. State vy. Brown, 40 Ami. 785.
    2. In bis oliargo to the jury on snob trials the judge discharges bis duty when be states the law oC manslaughter, but bo must leave the jury to determine whether it is applicable to the facts proved in the case; and if he uses language expressing or necessarily implying that, in his opinion, the law is not applicable to the facts, he iuvades the exclusive irrovince of the jury, in violation of Sec. 991 Rev. Slat,, and commits error.
    APPEAL from the First District Court, Parish of Cacltlo. ITielcs, J.

      Walter II. Rogers, Attorney General, for the State, Appellee.
    TPi'se c6 Herndon and J. W. Jones for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This case returns from the remanding ordered by us in our decision reported at p. 725, 40 Annual. We there held that, under the mandatory terms of Section 785 of the’ Revised Statutes, in all “trials for murder the jury may find a verdict for manslaughter,” and that refusal so to charge was error, even though based on the judge’s opinion that manslaughter was entirely inapplicable to the facts of the case.

In the present appeal complaint is made of the judge’s charge on the same subject.

The judge, in his charge, referred to his ruling on tlio former trial and the decision of this court thereon, saying, in course of his statement: “ I refused to give' the charge because it did not seem to me, under the facts disclosed on that trial, that the crime of manslaughter was involved in the 'case.” Ho then stated fully and correctly the contrary ruling of this court and charged that they might render a verdict for-man slaughter.

He proceeded to say: “ The Constitution requires the judge to charge the jury, in all criminal cases; as to the law applicable to the case, hut I am compelled to admit my inability to give you a satisfactory charge on manslaughter as applicable to this case, and can do no more than give you a very brief reference to that offense, and that, too, in the abstract.”

We liave no desire to be hypercritical and are far from attributing any impropriety of motive to our learned brother, but every impartial mind, and, we believe, the judge himself, must admit that the above quoted passages necessarily conveyed to the jury, the unmistakable impression that, in the judge’s opinion, the law of manslaughter had no application to the facts of the case. What other inference could bo drawn? He first tells the jury that ho thought that, under the facts disclosed on the former trial, manslaughter was not involved in the case; he makes no intimation that those facts differed, in any respect, from the facts on the present trial; ho then says it is impossible to charge on manslaughter as applicable to this case; and, therefore, that his reference to that offense must be only “ in the abstract.”

The law of this State is very emphatic in limiting the judge, in his charge to the jury, to questions of law, and in forbidding him to touch upon the facts or to give any “opinion as to what facts have been proved or disproved.” R. S. Sec. 991. This court has always given a rigid interpretation to this provision, and has granted relief in every case where the judge has used language calculated, in any way, to influence the minds of the jury in reference to the facts of the case. State vs. Durr, 39 Ann. 751; State vs. Hahn, 38 Ann. 169; State vs. Boasso, id. 202; State vs. Asburry, 37 Ann. 124; State vs. O’Kean, 35 Ann. 901; State vs. Jackson, id. 769; State vs. Swayze, 30 Ann. 1328.

Wo are bound to hold that the charge complained of violates the spirit and the letter of the law. Under the Sec. 785 R. S., as interpreted by us, the law of manslaughter is .necessarily pertinent in every trial for murder. The judge’s duty is very plain : to give the law and leave the jury to determine whether it is applicable to the facts, free from influence by any opinion of his own on that subject.

It is, therefore, ordered and decreed that the verdict and judgment bo set aside and annulled, and that the case bo remanded for further proceedings according to law.

Judgment reversed and case remanded.


text:
    No. 10,319.
    Louis Lemeunier vs. A. J. McClearley.
    No increase of damages for attorney’s feos will bo allowed on tlio dissolution of an injunction, for services rendered in this court, wlion it appears from tlio record t-liat tlio potition in tlio original suit was amended by covenant of parties to give this court jurisdiction.
    It is well settled that the dissolution of ail injunction is prima facie evidence that the defendant has sustained damages and is conclusivo and res ad judicata as to the issues raised on the dissolution.

      APPEAL from the Ninth District Court, Parish of Concordia, Young, J.

      Luce (& Lemle for Plaintiff and Apimllee.

      Steele & Dagg and J. (L Lcache for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

Plaintiff sued the defendant for damages for the wrongful suing out of an injunction and claimed damages to the amount of $3200 for attorney’s fees, actual expenses incurred in defense of the suit, costs, loss of time, mental distress, etc.

The suit in which the injunction issued, and out of which this one is the consequence, is reported in 40 Ann. p. 253, in which the judgment of the lower court rejecting plaintiff’s demand and dissolving the injunction was affirmed.

It is well settled that the dissolution of an injunction is prima facie evidence that the defendant has sustained damage and is conclusive and res adjudícala as to the issues raised on the dissolution.

The main contention in that suit was to have a road, which the plaintiff claimed was public, declared a public highway. The plaintiff caused an injunction to issue, restraining the defendant from-obstructing said road pending the suit. An answer was filed, putting at issue the propriotorship of the road. There was no effort made to-bond'the injunction; no motion to dissolve was filed, and no mention made of the injunction proceeding in the answer. • It appears that all the efforts of the attorneys were directed to defeating the demand on the merits. The dissolution of the injunction was only incidental to the result of the litigation, and when the demand of plaintiff was rejected the injunction went with it. There were no services rendered for the release of the property from the effects of the injunction. It is in evidence also that the pleadings were amended in the court below, by consent, so as to give this court jurisdiction. Under such circumstances it is clear that no claim for attorney’s foes can be allowed for services on the appeal.

The only damages which can bo allowed are those which result from the operation of the injunction, independent of the principal demand. 34 Ann., p. 344; 37 Ann. 132.

The plaintiff in the original suit, although mistaken in his rights, undoubtedly believed that he was prosecuting a valid claim. The road liad for many years been. open, to the public; had been treated as a jiublic road, and the police jury had declared it a public road.

The plaintiff in this suit was, by the injunction, deprived of the exclusive use of his private property, and was annoyed, inconvenienced by its operation. His road was damaged and a portion of his crop destroyed by wagons passing from the road into his field. His trade was interrupted and his businsss to a certain extent suffered. The jury rendered a verdict of two hundred dollars in his favor.

The evidence fails to satisfy us that it was manifestly erroneous, and it is, therefore, affirmed.


text:
    No. 10,351.
    The State of Louisiana vs. Louis Demareste.
    Iii tlio absonoo of statutory regulations courts can only guard against tlio abuso of tlio privilogo of furnishing spirituous liquors to mombors of a jury as rofreslnnouts.
    It is a safe rule, however, to bo followed, to allow such refreshments only in case of necessity, oil the ordor of the judgo, and in modorate quantities. The supplying of tlio jury with it in bottles and flasks is roprehensiblo.
    Huliug in caso of State vs. Broussard affirmed.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Head, J.
    IF. II. Boyers, Attorney General, and J. O. Gibbs, Distrit Attorney, for the State, Appellee.

      Hournet <& Pujo for Defendant and Appellant.
   The opinion of tlio Court was delivered by

McEnery, J.

The accused was convicted of murder and sentenced to bo executed; and ho appeals from the verdict and sentence.

He was put on trial on the 20th February, and found guilty next day.

A motion for a new trial was filed, and among tlio reasons alleged for its consideration is that the members of the jury wore furnished with and drank so freely of intoxicating liquors that they rendered themves unfit to delibéralo upon the case.

In a recent case, State vs. Broussard, we said, in setting aside the verdict in that case, because of the excessive use of ardent spirits by two of the jurors; We feel very confident that in thus ruling we make no departure from the line of jurisprudence under which it is stated that tlio verdict of a jury in a criminal case is not to be vitiated by the mere fact'that during their deliberations in a protracted trial the jury wore allowed a moderate use of spirituous liquors as refreshments or as a stimulant. * * * * * * * * *

“ It would be difficult to formulate any affirmative rule, or to proscribe an inflexible limit to the practice, and courts can do no more than to guard against excesses in determining such questions.”

The instant case, as in that case, shows an outrageous abuse of the privilege and justly deserves censure and rebuke.

In the short time of tlio trial the members of the jury wore furnished with small flasks of whisk/. There were no exceptional circumstances which rendered it necessary for the jury to be furnished with such refreshments. There was neither exhaustion nor sickness shown to exist as the condition of any member of the jury.

The officers who were in charge of the jury are positive in their declarations that no member of the jury was intoxicated. But the conduct of the jury was such as to leave the impression on the minds of others, and this inference from the testimony in tlio record, we think is indisputable, that if the members of the jury were not actually drunk they were unduly excited by the use of liquor, to the extent that they lost sight of the solemn duty upon which they were engaged. Their e'onduct was such as to bring into contempt and ridicule the administration of justice.

The jury was taken to a hotel at night, and while going through the streets of the City of Lake Charles, they were so boisterous as to attract police attention. At the hotel the conduct of the jury is thus described by a deputy .sheriff: “I was acting as deputy sheriff, and I was one of the deputy sheriffs in charge of the jury who tried Louis Domároste. The jury lodged on the night of February 20 part of the time at Vincent’s Hotel, from something after 10 o’clock until between 12 and 1. They did not remain at the hotel all night because the jury were rowdying and cutting up and Mr. Vincent ordered us to take them out of his house. * * **********

' “I could not tell the language they used. They were playing all over the house. One would lie down and others would haul him over the floor by the heels.”

This testimony as to the conduct of the jury is fully coroborated by other witnesses.

Vincent, the proprietor of the hotel, states that when the jury entered his hotel they were singing and made a great deal of noise, and when in the house they used bad language, which was heard all over the hotel.

On ascending tlie stairs to their room, they sang:

“We are climbing up the golden stairs.”

In thoir debauch propriety at least should have prompted tlie selection of some other song, less suggestive of tlie painful duty which they were performing — the deliberating upon a case in which the punishment was death.

The members of tlie jury were either unnaturally stimulated and excited, or they were wanting in all those moral qualities which fit men for the discharge of civil duties.

It is in the record that when they wore impaneled they wore true, good and lawful men.

Therefore thoir unseemly and riotous conduct can ho accounted for on no other hypothesis than that they were influenced by the intoxicants which had been furnished them.

This case affords another illustration of tlie danger to the administration of criminal justice iu the abuse of the privilege of allowing ardent spirits, even in moderate quantity, to he furnished the members of the jury as refreshments. In the absence of statutory regulations courts can only guard against abuses of the privilege. It is a safe rule to follow to allow ardent spirits to he furnished only on the order of the judge, and in case of necessity, and in moderate quantity.

The practice of furnishing in bottles and flasks is reprehensible.

It is, therefore, ordered that the verdict and judgment appealed from he set aside, annulled and reversed, and the case he remanded to be 2>roceeded with according to law.