author: Fennbr, J. Watkins, J.

text:
    No. 10,593.
    J. D. Peet & Co. vs. Adolph Meyer.
    1. An agreement between three parties that they will join in a pool with a fourth party then absent, to purchase 10,000 bales of future cottons, if such fourth party shall agree thereto, operates a mere proposition to said party, which any one of the proposers may withdraw, cither before acceptance or immediately after receiving notice of acceptance.
    2. Mven if one of the proposers bo authorized to conclude the agreement on ac- . eeptanco hy the party to whom the proposition is made, yet such an agreement has no executory force hy reason of tlio entire indeterminateness of the object.
    3. All the proposers arc entitled to notice of the completion of the agreement, and to a voice in settling and ascertaining the details of the purchase, such as the months which arc to be bought, the prices to be paid, the broker to be selected, the party tobe selected as head of the pool authorized to receive notices, and to direct the operation, etc.

      d. When one of the proposers lias had no notice that the proposition had over been accepted or that the futures have boon bought until a month afterward, when the transaction has been closed out at a heavy loss, and when the other parties ¡have settled all the details and made the purchase without notice to or consultation with him, he can not he held bound by such loss.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Harry H. Hall for Plaintiffs and Appellants:
    l. “Good faith in a contract is always presumed; and the court will believe that the imrties understood each other.” 13 La. 2of, Nal vs. Taylor.

      ‘L Ailirmativo testimony will prevail over that which is negative. Story vs. Ins. Co., 37 An. 255.
    O. O. 2021 (2016): “ Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the condition happen, it is a suspensive condition.” C. N. 1168.
    C. C. 2028 (21.23): “ The contract of which the condition forms a part is, like all others, complete by the assent of tlio parties; the obligee has a right of which the obligor can not deprive him; its exercise is only suspended, or may be defeated, according to the nature of the condition.” C. O. 2038 (2033): “.When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken when the time has expired without the event having taken place. If there be no time fixed the condition may always be .performed, and it is not considered as broken until it becomes certain that the event may not happen.” Vide O. N. 1176.
    C. C. 2041 (2036): “The condition being complied with, has a retrospective effect to the day that the engagement was contracted.” V. C. N. 1179; V. 33 An. 463; 38 An. 336.
    C. C. 2043 (2038): “The obligation contracted on a suspensive condition is that which depends either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.”
    In the former case the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day in which it was contracted, but it can not be enforced until the event be known.” V. O. 1ST. 1180.
    4. In the instant case the execution of the authorization followed immediately upon the giving of it, but so fixed are the rights of the parties, by law, that nothing short of a putting in mora could have terminated the authority until so acted upon.”
    “Until the dissolution of a resolutory condition is demanded judicially, for non-performance, the obligor has the right to comply with his part of the contract.” Gayden vs. ltailroad, 39 An. 269.
    “ Where no time is fixed in the contract for the performance of the condition, and the party lias not been put in default, it may still be performed.” Hall vs. Lorenz, 3 An. 274.
    Kor was any express notification of the acceptance of the order necessary. “ A pollicitation, by the acceptance of the party to whom it is made, ripens into a perfect contract. If A proposes to 15 to take charge of his plantation, as overseer, 15, by taking charge of it, evidences his assent to the terms.” Seal vs. Erwin, 2 X. S.245.
    A mere promise to sell when certain conditions arc complied with, creates an obligation which may be enforced by an action to compel specific performance, or for the recovery of damages. Knox vs. Payne, 13 An. 361.
    “ Suivant Particle 1881, l’obligation contractée sous un condition suspensive est celle qui depend ou d’un événement futur et incertain, ou ’dun événement actuellement arrive, mais encore inconnu des parties. * * * Dans lc premier cas anssi elle a son effet du jour ou elle a été contractée, puisque la condition accomplie a un effet rétroactif au jour ou ¡’engagement a été formé (Art. 1179); seulemént l’obligation est en susjwns jusqu’a ce que l’événement soit arrive. * * * * Dans l’obligation contractee sons une condition suspendue et taut que la condition n’est pointencorc accompli il n’y a point encore de droit de eréance acquis point de droit ciopropriété transmis il n’y a qu’une simple espérancc, tanturn s}jes debitum iri. Section 3 Instit., de verbo, olig. Mais un eséprance qui ne peut Stre detruito que d’un commun accord. Et aprés l’accoinplissement de la condition, les parties .sont ii regard Pune de Pautre commesi le contratavaitété fait purement et simplement.” Duranton 11, Ko. 272.
    And to emphasize this right our Louisiana Code has Article 2028 (2023), which •does not exist in the Code Kapoleon.

      T. J. ¿femmes & Legendre for Defendant and Appellee:
    1. This case, in tlio main, turns on a question of fact: Did Gen. Meyer become a member of a pool to purchase «10,000 bales of cotton futures to bull the market?
    In the interpretation of a contract it is the common intent — that is to say, the intention of all — that is to be sought for; for if there is a difference in this intent there is no common consent, and consequently no contract. O. C., Art 1945.
    3. The alleged pool or combination is void as against public policy. 14 An. 1GS.
    4. The court will notice the illegality without plea if it appear in the evidence 7 Wall. 558.
   The opinion of the court was delivered by

Fennbr, J.

The plaintiffs, who are brokers, sue the defendant for $8181.91 as his share of a loss on 6200 bales of future cotton, which they allege were purchased by them for the joint account of Adolph Meyer, Carpenter & Dicks, Kaufman & Runge and T. L. Airey. They aver that the order was given to them by J. N. Carpenter, who informed them that he was authorized by said partners to give the. same; and they further allege that he was thereunto duly authorized by the defendant, Meyer. All the parties admit Carpenter’s authority to bind them except Meyer, who denies that he ever' authorized such purchase for his account.

Of course plaintiffs carry the burden of clearly proving that Meyer authorized or ratified the purchase; and without full and satisfactory proof on this subject they can not recover.

We have weighed the evidence with care and with due consideration for the high character of the witnesses, all of whom must be treated as intending to tell the truth, in absence of irreconcilable inconsistency between their statements.

We find the following to be the pertinent facts:

1. It must be taken as established by the clear preponderance of' the testimony that it ivas agreed between Airey, Fraussen (representing Kaufman & Runge) and Meyer that they would go into a pool to buy 10,000 bales of future cotton, each of them taking 2500 bales, provided Carpenter would go in with them, taking the other 2500 bales. Meyer denies that he entered into such agreement; but the affirmative testimony of Airey and Fraussen must overbear his. negation, which may well result from a deficiency of recollection, the more natural as his ignorance of further proceedings in the. transaction removed all motive for impressing the conversation on his memory.

2. Carpenter was not present when this agreement was made; but Airey saw him shortly afterward out of the presence of Meyer, and told him of the agreement between himself, Eraussen and Meyer, and asked Mm to go in with them. Carpenter consented, and, with Airey’s approval, immediately gave the order to Peet & Oo. to buy the futures for the account of the four parties, naming them.

3. Peet & Co. filled the order to the extent of 6200 bales, entering the transaction in the name of J. D. Carpenter & Co. as head of the pool (as such combinations are termed), but with a memorandum of the parties composing the pool, in which, however, the name of Victor Meyer was erroneously entered instead of that of Adolph Meyer.

4. The rules of the Cotton Exchange require that notice in writing shall be given by the broker making such transactions to the party for whom he acts, during the day on which the purchase or sale is made. Peet & Co. gave this notice to Carpenter only as head of the pool. The evidence is conflicting as to whether, under the custom of the Exchange, such notice is sufficient, or whether notice is required to be given.to each member of the pool when their names have been given.

5. We are bound to find, as a proven fact in the case, that Meyer was never notified that Carpenter had consented to go into the proposed pool, and never knew that any purchase had been made in execution of the same until a month afterward, when the transaction had been closed out at the enormous loss herein claimed. As this is the vital and pivotal point in the case, we have examined the testimony on the subject with great care. Airey, Fraussen and Carpenter knew of all the proceedings, and they seem to take it for granted that Meyer also was duly informed. But Meyer positively denies that he knew anything about them; and there is literally nothing to contradict him. He was not present when Carpenter was consulted and consented to go into the pool. He was not present when Carpenter gave the order. Peet & Co. never gave any notice to Meyer personally, but only to Carpenter; and Carpenter does not pretend to have communicated the same to Meyer.

Peet, his partner, Ellis, Airey, Fraussen and Carpenter have testified, and not one of them states that he ever, directly or indirectly, communicated to Meyer personally the facts that the pool had been compléted and the purchase made. No other persons were interested in the matter or personally knew anything about it; and if Meyer was not present when these transactions took place, and was not notified thereof by any of these parties, how else should he have received the information, and what warrant have we for disregarding his positive statement that he knew nothing of them? Much stress is laid on certain statements furnished by Peet & Co. about the time of closing out the transaction, as going to establish defendant’s knowledge, or, at least, his ratification of it, and we have considered them very carefully. The first of these is a letter, dated July 12, from plaintiffs addressed to Victor Meyer, Esq., stating: “We have made transfer to your account of the following contracts: Your one-fourth interest in account Carpenter & Co.,” etc. This letter was received at the office of V. & A. Meyer & Co., and was opened by defendant. How can such a notice be construed as informing Adolph Meyer that he was held as having an interest in such a contract? He knew that his brother had been on the high seas at the date mentioned, and contented himself with directing an examination to see whether there was any record in the house of such a transaction, and, on finding none, he telegraphed to his brother in Europe, and received a reply denying that he had made such a deal. On July 15 he wrote to Peet & Co., informing them of these facts, and of the mistake they had made. On July 13 another letter was received from Peet & Oo. addressed to the firm of V. & A. Meyer & Oo., saying: “The difference between our contracts with your New York house and those held for our senior there, and cotton for your account with us, shows debit against you for $8500, for which please send us your cheek.” This letter obviously refers on its face only to firm transactions, and was a call for margins.. Defendant promptly sent, the check called for. It turns out that this margin was made up almost entirely of the loss then shown on the Carpenter & Co. transaction, and the payment is strenuously urged as conclusive proof of defendant’s knowledge of that transaction and of his admission of liability therefor. But defendant explains that he was not posted as to the transactions between his New York house and plaintiffs; that he had perfect confidence in plaintiffs; that he knew that calls for margins required prompt action, and therefore he sent the check at once.

On the 14th of July, Peet & Oo. failed. . On the 15th the letter was written advising that Victor Meyer repudiated the transaction attributed to him.

This was followed by a claim, first, against the firm of V. & A. Meyer & Oo., and, finally, against the defendant personally, which is here in suit.

The explanations by defendant of his action are natural and reasonable, and must be accepted as honest. This action might operate as a make-weight in a case of conflicting evidence: but in face of defendant’s positive testimony that he had no notice and was absolutely ignorant of these transactions, and in absence of contradiction on this point by any witness, it is impossible for us to attribute to his conduct the construction contended for by plaintiff.

We are therefore bound to find as a fact in the case that Meyer had no notice of the completion of the pool by Carpenter’s consent, or of the purchase made in his name, until after a month had expired and the transaction had been closed out at the enormous loss claimed.

Under these facts, can Meyer be held? After reading and rereading the testimony of Messrs. Airey and Fraussen, the utmost scope that can be given to the agreement between them and Meyer is an agreement between themselves to enter into an agreement with Carpenter to buy 10,000 bales of futures on the joint account of all four, provided Carpenter would consent. In other words, Meyer authorized Airey and Fraussen to propose to Carpenter the formation of such a contract. Airey and Fraussen were not bound to make the proposition. Either of them might have abandoned the scheme the moment they parted from Meyer. The only authority given to them by Meyer was to propose such an agreement to Carpenter. When Carpenter consented, Meyer was entitled to notice thereof before any further proceedings were taken. Article 1800, O. 0., provides: “The contract consisting of 'the proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he who proposes should before that consent is given change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.” Article 1801 says: The party proposing shall be presumed to continue in the intention which his proposal expressed if, on receiving the unqualified consent of him to whom the proposition is made, he do not signify the change of his intention.”

From these articles it follows that Meyer had the right to recede from his proposition, even after acceptance if, on receiving notice of acceptance, he promptly asserted the right. But, conceding that the authority given to Airey and Fraussen authorized them to bind Meyer finally by the agreement with Carpenter, what was the nature of that agreement? Simply an agreement to buy together 10,000 bales of futures. It is evident that such an agreement could have no executory force by reason of the entire uncertainty in the object of the contract.

Anything more indefinite and incomplete than an agreement to buy 10,000 bales of futures could hardly be conceived. It does not settle the months for which the purchases are to be made, nor fix or limit the prices to be paid, nor designate the party in whose name the order is to be given, and who is to exercise the very important function of receiving notices, nor the broker to whom the order was to be given. In this case Carpenter exercised the very important power of stopping the purchases at 6200 bales.

Whence did Airy, Fraussen and Carpenter derive the right to settle all these matters by themselves without consulting or even notifying Meyer?

Moreover, under the rules of the Exchange, Meyer was undoubtedly entitled to notice of the purchase made for his account. This right is of inestimable importance. Admitting that, in cases of pools, notice to that member of the pool who gives the order is sufficient, this rests only the assumption that he has been authorized by the other members to act for them in giving the order and to receive such notices. But whence did Carpenter derive the right to act for Meyer in these important matters ? Meyer never authorized him to act as his agent in this transaction; never knew that he had acted as such; never knew that he had acted at all. Notice to Carpenter, not communicated to Meyer, was no notice to Meyer. The broker, who gives notice to the head of a pool, simply acts on the assumption that he is authorized to receive notice for his associates, and takes the risk of the correctness of that assumption. When it is shown, as in this case, that he was not so authorized by a party sought to be bound by such notice, such party can not be held in law, or under any custom.

If there is any class of dealings in which clear and unequivocal knowledge is essential to the parties engaged, it is certainly dealing in futures, in which ignorance deprives a party of the opportunity of self-protection and exposes him to ruinous losses. The estimable gentlemen who undertook to engage Meyer in this transaction have taken too much for granted, and have dealt rashly and without the exactitude required in such operations. Upon whomsoever the loss may fall, it can not be cast on Meyer under the evidence in this record; and we are bound to approve the ruling of the judge a quo.

Judgment affirmed.

Dissenting Opinion.

Watkins, J.

This suit is brought against the defendant for his proportionate share of a loss sustained on a purchase of 6200 bales of cotton for future delivery, for the account of a pool alleged to have been composed of J. N. Carpenter, B. Franssen, T. L. Airey and defendant.'

The plaintiffs claim that they, as brokers, members of the New Orleans Cotton'Exchange, operating under its rules, were employed as such to purchase not exceeding 10,000 bales of cotton, or so much thereof as would “sustain the market;” and on the 14th of June, 1887, they made the purchase of 6200 bales- of cotton for August and September deliveries. The purchase was made on the Exchange, and was thereafter held by plaintiffs for the account of Carpenter & Co. — by which name the pool is designated — until the 14th of July, 1887, when the transaction was closed out under the rules of the Exchange, at then prevailing prices, on account of the plaintiffs’ suspension, and with the resulting proportionate loss demanded.

All parties in interest admit their liability except the defendant, who disavows all responsibility.

The principal question to be determined is, whether or not the defendant became a member of the pool.

It appears from the record to be an undisputed fact that only a few moments after the alleged agreement was made, Col. Airey informed Carpenter of it, and he at onee assented to it. Immediately after being thus informed, and at the suggestion of Col. Airey, Carpenter employed plaintiffs to make the purchase. Having been advised of the object to be attained by the deal, i. e., to sustain and advance the market, they ceased purchasing after they had secured 6200 bales, as they considered the market had sufficiently recovered thereby. Of this no complaint is made by any one.

Of these purchases due notice was given Carpenter & Co. at the •office of Ool. Airey, as directed by J. N. Carpenter, when he requested the plaintiffs to negotiate the purchase. Memorandaweve furnished to the parties respectively on call. Carpenter, Airey and Franssen each received theirs, but defendant has no recollection of having received his, and says, after careful examination none could be found.

Quite a number of gentlemen of the Exchange were interrogated as witnesses, and a large majority of them testify that the plaintiffs’ course of dealing in this matter was in strict conformity to the customs, usages and rules of the Exchange in such matters, that is, in ■giving a notification to the party giving the order only, and, as the defendant furnished no countervailing evidence, I think this court is bound to accept the binding force of a clear preponderance of proof on this as on any other question.

During the time plaintiffs held the cotton for the account of the pool, they made demand of the respective members for margins on their contract, same having become necessary on account of a variation in the market. In response to this demand, the defendant at •once responded with his check, which was deposited with the plaintiffs as security against loss, the time of delivery not having arrived. On the faith of this deposit of margins the plaintiffs accounted to the brokers who effected the sale, and continued to hold the cotton for the joint account of the defendant and his associates. Hence •this is simply a suit by brokers against one of its principals for the reimbursement of money expended for Ms account in sustaining a contract they were carrying for a pool, of which he was a member. To my thinking it was evidently on the faith of the margins deposited that plaintiffs parted with their money and consented to, and continued to carry the contract.

This is the plaintiffs’ side of the case.

The position of the defendant is that there was no such agreement made as the plaintiffs contend, and not that there was a conditional agreement entered into, which was dependent upon the subsequent assent of Carpenter, of which assent he was entitled to notice before it could become complete as a contract binding on him.

The testimony of the three parties who were admittedly members ■of the Exchange, and participated in the conversation in the Ex-change, which is alleged to have resulted in the pool agreement, was taken, and from which we make the following extracts, viz:

T. L. Airey, one of the three gentlemen, says: “ On the 14th of June, 1887, Franssen, Adolph Meyer and myself were discussing ■cotton and the course of the cotton market, upon the floor of the Cotton Exchange, and I made the remark, If we make a pool of 10.000 bales of cotton, we can check this decline and probably put the market up.’ We all had large interests in sustaining prices. I said I was willing to take 2500 bales. Franssen said, ‘ I will take 2500 bales.’ Adolph Meyer said, I will take 2500.’ Carpenter was not in the Exchange at the moment. I said, I am satisfied that Carpenter will take 2500 bales.’ Within a moment from the time I spoke, Carpenter came in. I walked up to him and told him what we had done. I said that Adolph Meyer had taken 2600; I the same; Frawssen the same, and (I) asked him if he would take the 2500. He said, ‘ Of course I will do it.’ ” (Italics mine.)

Again he says: “ While we were talking the door of the Exchange ■opened, and Carpenter appeared. When I left Meyer and Franssen ■to go to Carpenter, I mentioned to them, 1 There is Carpenter now.’ ” {Italics mine.)

This is a clear, concise statement of fact. Airey speaks in no ■doubtful or equivocal terms. He says: “Adolph Meyer said I will take 2500.” He says that he told Carpenter “ what we had done,” and “that Adolph Meyer had taken 2500.”

During the pendency of the suit the testimony of Franssen was taken under commission in a distant State, and he made the following statement, viz:

“ I was in conversation with Mr. Airey, and, as the market appeared unusually weak, I made the remark that the purchase of 10.000 bales would suffice to sustain the market considerably, and even cause an advance of five points at least. The suggestion was, thereupon made by Col. Airey to forma combination for the purchase of 10,000 bales, to which, Mr. Meyer and myself consented, provided ■they could induce Mr. Carpenter to take a one-fourth interest. So that each one of us participated to the extent of 2500 bales.”

Again he says:

“I am positive that Mr. Meyer gave his full assent to said transaction. I do not remember'the exact expression used, but the amount of our conversation was that he would take the quarter interest, if Mr. Airey, Mr. Carpenter and myself * * would take the other-three-quarters interest. Mr. Meyer spoke to me, as well as to Mr.. Airey, during the conversation which occurred in the New Orleans-Cotton Exchange, about 1 o’clock on the 14th of June, 1887.”

The statement of this witness is just as emphatic and as clear as-that of Airey. He says positively, that the defendant consented,, provided they could induce Carpenter to take one-fourth interest; ox-in other words, if Airey, Carpenter and he “would take the other-three-quarters interest.” To this they assented. On this theory all. subsequent negotiations and proceedings were conducted.

How does the defendant as witness meet this evidence ? To a\ pointed question propounded by his counsel he makes the following, reply, viz:

“ A. I remember a conversation with Col. Airey on that subject.. As far as my recollection goes, he asked me whether I thought a purchase of 10,000 bales would sustain the market, which was then, it appeared, in a somewhat uncertain condition; and I remember telling him I thought it would.

“Q,. Anything further?

“A. Nothing further,” etc. (Italics mixxe.)

During the course of his interrogation the following addtional! statement was made by the defendant, as witness, viz:

“ Q,. Do you undertake to say positively that you never gave such authority to Mr. Airey, as he has testified to here ?

“A. Ido. I do undertake to say positively that I have no recollection whatever of ever having given Mr. Airey any authority to enter, into such contract for me.”

Subsequently, when speaking of the demand made of him for the payment of the loss, he said:

“ I was rather surprised, because I was unconscious of any such transaction.”

Under ordinary rules of evidence, it appears to me quite evident that the clear preponderance of proof is in. favor of the existence of the pool agreement on the basis of one-fourth to each of the four parties named. The defendant may have forgotten the agreement, in the course of the multifarious transactions in which he was engaged at the time. But, in construing evidence, courts are bound to give-adhesion to the preponderance of testimony where witnesses appear equally trustworthy, and make contradictory statements.

But there is another circumstance, which is, to my mind, of great weight, in so far as plaintiffs are concerned, in interpreting the agreement of the parties, or rather in determining what the agreement was, and who were parties to it.

And that circumstance is that of the defendant putting up $8500 in margins on the 13th of July on the plaintiffs’ demand.

The proof is, that on the 12th of July, plaintiffs notified Victor Meyer in writing that they had transferred to his account “one-fourth interest in account of Carpenter & Co.” in certain future contracts.

On the following day they demanded of V. & A. Meyer & Co. $8500, as margins on future contracts, and a cheek for same was at once furnished. The letter of the 13th, distinctly stated that the sum demanded was the difference between contracts in New York and those in New Orleans, in favor of plaintiffs. On the following day plaintiffs’ suspension occurred. Two days subsequently, for the first tíme, was an answer made by V. & A. Meyer & Co., disavowing the Carpenter & Co. transaction, and the letter of the 12th as a mistake. No explanation is offered of the check sent to the plaintiffs for margins, nor is any demand made for its return. During the months of June and July, Victor Meyer was in Europe, and of course knew nothing about the transactions; but the defendant was present, and was personally cognizant of them, and conducted the correspondence.

In addition to these facts, the testimony of one of the plaintiffs is worthy of consideration. During the course of his interrogation the following occurred, viz:

“ Q,. Can you state what proportion of the $8500 that you called for, you attributed to the Carpenter & Co. transaction — what proportion of that whole amount you called for, on account of the Carpenter & Co. transaction?

“A. The major part of it. I did recollect exactly what the difference in the market might have been.

“ Q. If there had been no such account, for what amount would you have called on V. & A. Meyer & Co. instead of $8500?

“A. We would not have called at all, because the account closely approximated, in the letter, $200 or $300.”

This evidence confirms the statement in the letter of the 12th of July, and the demand of the 13th of same month. And in the defendant’s telegram to Victor Meyer (on the faith of the answer to-which his letter of the 15th was written to plaintiffs), he says:

“ Peet has suspended. We are not interested.” Defendant attempts an explanation of his putting up the margins as he did by-stating that he was at the time quite busy, and had full confidence in the plaintiffs. But the accounts of plaintiffs with the Meyer firm in New York and New Orleans, were introduced in evidence by defendant ; and an examination of them discloses that after they were balanced, there was a debit against plaintiffs of $17,052.77; but plaintiffs’ account against defendant shows a credit of $8400 in their favor after charging themseírves with that debit. Hence, admitting all that is shown by the Meyer accounts, that firm is still in arrears in. the amount stated. The only difference there is between the accounts is in reference to the credits; and in this respect, those of the plaintiffs are undoubtedly correct. They 'tally with plaintiffs’ demand for margins, and are supported by other evidence in th& record. This evidence was sufficient warrant for plaintiffs’ course of' dealing. Whether the original agreement was complete and perfect between the parties or not, the acts and conduct of the defendant, under the circumstances recited, were, in my opinion, quite sufficient, to confirm the plaintiffs’ belief in Oarpenter’s representations in ordering the purchase, and to act on that belief in paying the price of the cotton, and in holding same'for the defendant and his associates. I think plaintiffs are entitled to recover, and that the judgment appealed from should be reversed. For these reasons I must respectfully dissent from the views entertained by the majority of the court.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,477.
    Factors and Traders Insurance Company et al. vs. Philip Werlein.
    U The owner oí a building is responsible ior the damage occasioned by its fall, when it is caused by his neglect to properly brace it so as to prevent the fall thereof; but the damage may be reduced according to circumstances if the owner of the thing has exposed it imprudently.
    2. When a building threatens ruin, the neighbor has a right of action against the owner to compel him to cause such a building to be demolished or propped up. In the meantime, if there be danger of any damage by its fall, he may be authorized to make the necessary works, for which he shall be reimbursed after the danger shall have been ascertained by experts.

      8. The owner of a building which is injured by the fall of an adjoining wall' must use reasonable precautions to reduce the damages likely to be occasioned thereby. In such case it is a good defence to show that the injury has-so far arisen from the negligence of the plaintiff himself that he might by ordinary care have avoided the injury.
    A plaintiff must not only show that no negligence on his part contributed originally to the injury, but he must also show that due care was exercised in avoiding consequential damage.
    4. In case of mutual negligence, the true principle is that no action for damage can be maintained, if the negligence of each party was a proximate cause of the injury sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Howe & Prentiss and Charles Carroll for Plaintiffs and Appellants r
    1. The facts of the case discussed, with the view to showing that the damage, for which reparation is claimed, was due to the negligence and fault of the defendant, and that he is liable therefor.
    2. Where a claim for damages has been assigned and transferred in a suit on the* claim under the assignment, the contributory neglect of the assignor alone can be set up and pleaded. Cooley on Torts, p. 672, and note; 35 An. 16; 35 An. 1138.
    8. Estoppel takes place only in cases where a party, by his acts and declarations, designedly induces another to alter his position injuriously to himself.. 30 An. 1307; 16 An. 190; 30 An. 53; 38 An. 100; 39 An. 445.
    4. The petition and answer in another suit, to which the defendant herein was not a party, are not admissible in evidence in favor of the defendant.
    5. Where a petition and answer in a record are especially offered in evidence, and the answer denies the material allegations of the petition, and the petition and answer are contrary to each other, the record furnishes no ground for estoppel, and can not be construed as an admission in regard to any of the-matters set forth in the petition and answer. 30 An. 1307; PhilFps onEv., Vol. 1, 378; Greenleaf on Ev., Vol. 1, Sec. 204; Bigelow on Estoppel, 293, Nos. 4 and 5.

      Farrar, Jonas & Kruttsehnitt for Defendant and Appellee:
    1. Upon the facts of this case, which is a suit for damages ex delicto, defendant was guilty of no negligence, and is therefore not liable in any amount whatsoever to plaintiff.
    2. One of the two plaintiffs in this case claims as subrogee of the other plaintiff, who, in a former suit, alleged that the damages now claimed from defendant were due solely to the negligence of his said co-plaintiff.
    Under these circumstances both plaintiffs are estopped, in the absence of any allegation of error, from contradicting such judicial admission, or from claiming that tho damages.were due to the negligence of the defendant.

      3. It is the clutyof a party to protect himself from the injurious consequences of the wrongful act of another, if ho can do so by ordinary effort and care, or at a moderate expense; for which effort and expense he may charge the wrongdoer; and where, by the use of such means, he may prevent loss, he can only recover for such loss as could not thus be prevented. Campbell vs. Miltenbergei', 26 An. 72; Tardos vs. Railroad Company, 35 An. 18; Beer vs. Board of Health, 35 An. 1135; Sedgwick on Damages, 7 ISd., Vol. 1, p. 164, etseq.; Sutherland on Damages, Vol. 1, p. 152, and following.
   The opinion of the court was delivered by

Watkins, J.

The object of this action is the recovery from the defendant of the damages resulting from the falling of a wall of a burnt building upon the adjoining house of Dr. Oscar Czarnowski. The insurance company institutes this suit, in its right as assignee and subrogee of Czarnowski, and the latter is also joined as plaintiff, and sues for the use of the former. Claim is made for $8347.37 for the complete demolition of the structure.

On the trial there was judgment for the defendant, and the plaintiffs have appealed.

The facts necessary to be considered are as follows, viz:

The defendant was the owner of Werlein Hall, usually known as the “National Theatre,” which was situated at the corner of Baronne and Perdido streets, in the city of New Orleans, with its front on the latter, and the former and Carroll streets on either side. Adjoining it in the rear was the building of Czarnowski, bearing the municipal number 109, on Baronne street.

The latter building had an altitude of about forty-five'feet, while the theatre arose to the height of about ninety feet. The wall between the two buildings was a party wall, but the wall of the theatre, which rose about forty feet above, was the individual property of the defendant.

At about the hour of 11 o’clock of the night of Friday, July 1, 1887, the theatre was completely destroyed .by fire, and the walls were left standing in a dangerous condition; the rear wall, towering and unsupported, above and slightly inclining toward the Czarnowski building in the rear.

By the falling of the crest or gable of this wall the latter building had its roof crushed in, and was filled with debris, the damage which resulted amounting to $900.

In this condition the walls were suffered to remain until the 7th «of July following, when they were prostrated by a wind storm of moderate velocity, and in their fall they crushed the Ozarnowski building, causing an additional damage thereto of about $3500..

Both of these properties were insured — the plaintiff carrying a policy of $7500 on the Ozarnowski building.

Soon after the first damage was inflicted, Ozarnowski called upon the insurance company, and it had agreed to adjust the loss, and same was in process of adjustment, when the remainder of the wall fell and crushed the building. During the interval between the two «occurrences, there were repeated interviews held between Ozarnowski and officers of the insurance company with reference to the threatening and dangerous condition of the rear wall of the theatre. The former knew that it ought to have been propped or braced, and he urged the latter to take the wall down or brace it up.

He informed the company that if it considered the house at his risk, he would prop the wall so as to prevent further injury; but it declined to do anything, assigning as a reason that the wall was not at its risk.

It suggested to Ozarnowski that he obtain the consent of the ■defendant to prop the wall, and he refused, on the ground that he had nothing to do with Werlein. He then proposed to the company to contribute $50 toward the expense of propping up the wall, which would not have cost more than $100. But neither the insurance ■company, nor Ozarnowski made any effort to prop the wall, or in any way to prevent it from falling.

. In the meanwhile, the defendant was informed of the burning of his building, and he saw the ruins at 10 o’clock of the next morning •after the fire occurred. He said the walls were in a dangerous condition, and threatening to fall at any time. He was informed by others that they were in a dangerous condition, and advised to tear them down. It was on the second day after the fire that defendant •commenced negotiating with different persons in regard to taking down the walls. Two or three days were thus occupied, and on the 6th of July, at 12 m. , an acceptable estimate was furnished, and the contract was let out. On the following morning the contractor had men on the ground at 7 o’clock, but it was deemed necessary to enter Ozarnowski’s building in order to do the work, and Ozarnowki’s permission was sought for that purpose, and he referred the contractor to the insurance company.

It appears that it was on the same day — the 7th of July — that the insurance company accepted a bid of $985 for the repair of the damage first done to the Czarnowski building, and when called upon by defendant’s contractor for permission to enter the same, the company urged its own contract as a reason for declining his request. The defendant’s contractor went in search of the contractor of the insurance company, and found him and obtained his consent to enter the building. The work was at once commenced, and the debris was being removed, but that afternoon the walls were prostrated by a storm, as above recited.

In November, 1887, Czarnowski instituted a suit against the Factors and Traders Insurance Company for the, whole amount of his losses, which he fixed at about $4500, alleging, as the foundation of his demand, that during the interval between the burning of the building and the falling of the rear wall, which injured him, it was solely and exclusively in the possession of the burnt building, and that the destruction of his property was due to its fault and negligence. But the plaintiff specially reserved all of his rights against all or any other parties who might be liable to him.

The insurance company answered and made a full denial of all the plaintiff’s averments, and made full reservation of its rights as against all other persons who might be liable to it.

During the progress of the trial, that case was compromised, the insurance company paying the sum of $4359.72. Of this amount $3347.37 was attributed to the damages sustained by Czarnowski’s building on the 7th of July, 1887. Czarnowski made an assignment to the insurance company of all his rights and claims against Werlein. In this suit Czarnowski and the insurance company join in an action in damages ex delieto against Werlein, and it proceeds on the theory that he was guilty of a quasi offence against Czarnowski by reason of his neglect to take proper precautions against the falling of his wall on the property of Czarnowski.

In the suit of Czarnowski against the insurance company, Werlein was not a party, and between him and those parties there existed no contractual relations, but inter se there were. And it was for the specific performance of the company’s contract of insurance that that suit was brought. The compromise of that suit resulted in the full payment by the insurance company of the plaintiff’s demands, and in consideration of that payment alone he transferred his rights against Werlein to the company. Nothing was expended by the insurance company beyond the amount which was demanded by Czarnowski on its contract of insurance, and nothing was acquired by the insurance company against Werlein, other than the claim for damages ex delicto that Czarnowski preferred against him, and for a single consideration.

The insurance company discharged its contract obligation to Ozarnowski and acquired his claim ex delicto against Werlein for one price. It is on the latter that plaintiff seeks to recover in this suit.

In this discussion, the sole question to be considered is the alleged quasi offence of Werlein. The compromised suit, and the assignment to the insurance company, can be resorted to for the sole purpose of disclosing its title, as Werlein was not a party, and is hot bound thereby.

The manifest theory of plaintiff is, that the insurance eonpany and Werlein were equally bound, though by totally different obligations, to repair Gzarnowski’s losses, and the insurance company, having paid the loss, has, as assignee of Czarnowski, aright of action against Werlein.

Without, however, attending to the question of relative responsibility inter se, which appears to be somewhat metaphysical, we will dispose of that appertaining to the negligence of Werlein, quoad Czarnowski.

The foundation of Czarnowski’s right of action against Werlein is the maxim of our code, that “ every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” R. C. C. 2315.

This is supplemented by another, that “ every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.” R. C. C. 2316.

From these two articles are deduced the principle that “the owner of a building is responsible for the damage occasioned by its ruin, when this is caused by neglect to repair it.” R. O. O. 3322.

The liability of owners of buildings for personal injuries inflicted upon people of populous cities by falling walls, has been frequently maintained by decisions of this court, in keeping with the quoted precepts of the Code. As, for instance, in Camp vs. Church, 7 An. 321; Howe vs. New Orleans, 12 An. 481; Jackson vs. Schmidt, 14 An. 806; Barnes vs. Beirne, 38 An. 281.

But there are other principles to be taken into consideration in determining an owner’s liability. For the code provides that “the damage caused is not always estimated at the exact value, of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.'1'1 (Our italics.) R. O. O. 2S2S.

Hence, we must consider whether, under the circumstances detailed in this case, Werlein is responsible to Czarnowski for the damage he sustained by the demolition of his building, through the neglect of the former to strengthen and repair the toppling and dangerous walls of his own; and, while thus considering, we must determine whether Czarnowski imprudently exposed his building to the danger; and we must further determine — if it was so exposed— whether the damage actually sustained must on that account be reduced or altogether disallowed.

This directs our attention to another precept of the code which is applicable. It is as follows, viz:

“ Every one is bound to keep his buildings in repair, so that neither their fall nor any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the owner in that respect.” R. C. O. 670.

“When a building threatens ruin, the neighbor has a right of action against the owner, to compel him to cause such a building to be demolished or propped up. In the meantime, if there be danger of any damage by its fall, he may be authorized to make the necessary works, for which he shall be reimbursed, after the danger shall have been ascertained by experts.” (Our italics.) R. C. C. 671.

In view of these requirements of law, and being aware of the dangerous condition of the wall of the burnt building, Czarnowski had a right of action against Werlein to compel him to prop it, so as to prevent it falling; and, in the meantime, he might have been authorized to take the necessary means of protecting his own property. This he wholly failed to do, and for that reason was plainly guilty of neglect.

This principle is in keeping with that announced by text writers. For Mr. Sedgwick says, in treating of the “avoidable consequences” of an act, that “the same principle which refuses to take into consideration any but the direct consequences of the illegal act, is applied to limit the damages, where the plaintiff, by using reasonable precautions, could have reduced them; ’ ’ for ‘ ‘if, [as] said Lord Chief Justice Abbott, at Nisi Prius, you charge anybody with a loss arising from mistake, you should show that no due diligence could have been used by you, which might have prevented that loss.”

He quotes from Mr. Starkie’s work on evidence, the following, viz:

“In an action for an injury occasioned by the negligence of another, it is a good defence to show that the injury so far arose from the negligence of the plaintiff himself, that he might, by ordinary care and caution, have avoided the injury.” 1 Sedgwick on the Measure of Damages, 164,165; Starkie on Evidence, 741.

The same author condenses in a note what he deems to be the true import of the decisions of many of our States, and says:

“A plaintiff must not only show that no negligence on his part contributed originally to the injury, but he must also show due care in avoiding all (consequential) damage. It is also his duty, it is said, to take reasonable steps to make the damage as small as possible.” Ibid., p. 166, and note.

Mr. Sutherland says: “The principle that the injured party must reasonably exert himself to prevent damages, applies alike to cases of contract and tort.” 1 Sutherland on Damages, 152.

“In case of wrongful injury to person or property, the injured party is required to use reasonable exertion to lessen or moderate the resulting damage.” Ibid., 154.

This is also the law in New York. Chase vs. Railroad Company, 24 Barb. 273.

The Federal authorities are of the same import. Warren vs. Stoddart, 105 U. S. 224; Wicker vs. Happock, 6 Wall. 94.

We think the record fully proves that Czarnowski did not employ any reasonable exertion to lessen the danger from the threatening wall or to moderate the resulting damage; that he did not use due care in avoiding all consequential damage by taking the necessary steps to protect his own property.

Conceding for the argument — but which we are not prepared to concede — that Werlein was himself negligent in the premises, it is manifest that Czarnowski was equally aware of the danger which threatened him, and therefore the fault of both is mutual.

In considering a somewhat similar question, our predecessors said, in Mailhot vs. Pugh, 30 An. 1365: “He who has by his fault contributed to that of another — who has by his obstinacy, or bad judgment, or negligence, or indolence, himself been the author of his own misfortunes, and through these or like causes has contributed to produce the condition of which he complains — can not'invoke in his behalf and for his indemnification an equitable principle which was intended to apply only for the benefit of those who are without fault in the particular matters that form the subject of complaint.”

On a similar controversy we recently said: “If it be true that there was mutual negligence, the principle is, that when the negligence of each party was a proximate cause of the injury, no damages can he maintained. In such eases there can not be usually an apportionment of damages.” Levy vs. Carondelet Canal and Navigation Company, 34 An. 180.

In this case the fault of Werlein and Ozarnowski was at least mutual, and the negligence of each was a proximate cause of the injury. We are satisfied that the plaintiffs are not entitled to recover.

Judgment affirmed.


author: McBnery, J.

text:
    No. 10,618.
    L. S. Harrison & Bro. vs. Their Creditors.
    No appointment of permanent syndic under tíec. 1810, R. S., can be made where an opposition to the meeting of creditors is pending, in which the election of syndic is put at issue. * If the judge has inadvertently made the appointment, he can rescind the same as having been made in error when his attention is called to it.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      H. C. Gage for Appellant:
    1. Where the creditors have not elected a syndic, the judge shall appoint the sheriff unless one of the creditors applies, and thereupon the judge shall appoint the creditor as syndic. R. S., See. 1810.
    2. There was no election of syndic herein. Winkler and Ricks vs. Their Creditors, 84 An. 1221.
    8. A creditor has a preference over a stranger to the administration of an estate. Assimilating that doctrine to insolvency, the creditor was properly appointed O. C., Art. 1121.
    4. The ten days’ delay for a meeting does not refer to the action of the court in appointing a syndic. Spears vs. His Creditors, 40 An. 650.

      Ernest T. Floranee for Appellee:
    1. An order appointing a syndic in less than ten days from the close of the meet • ing of creditors is improyidontly issued and can be rescinded. 8 La. 228; 38 An. 15; 9 La. 893; R. S„ See. 1802; 40 An. 650.
    2. Such order of rescission is interlocutory, and can not be appealed from.
   The opinion of the court was delivered by

McBnery, J.

The proees verbal of the notary before whom the meeting of the creditors of the insolvents was held shows that there was no appointment of syndic. There were two candidates.

John R. Picton, one of them, alleges that there were certain illegal votes cast, which, if eliminated, would entitle him to be appointed syndic. His opposition was filed within ten days from the meeting of creditors. Within the ten days in which oppositions can be filed to the proees verbal of the meeting of creditors, W. S. Benedict, on the schedule as a creditor, was appointed syndic, under Section 1810, R. S., during the pendency of the opposition of Picton. The attention of the District Judge was directed to this irregularity by a motion filed by Picton, and he, on the same day the motion was filed, set aside the order appointing Benedict. Prom this judgment Benedict has appealed.

It is very evident that the judge could. only appoint a syndic on the failure of the creditors to do so as directed in Section 1810, R. S. A delay of ten days is allowed within which to file an opposition to the proceedings of the meeting of the creditors. Picton filed his opposition within the legal delay, claiming to be the elected syndic.

No valid appointment therefore could be made pending the opposition; and if one had inadvertently been made by the judge, it was within his power to rescind the order when his attention was called to. the error.

It is therefore ordered that the judgment appealed from be affirmed.


author: Breaux, J.

text:
    No. 10,598.
    Mrs. Caroline M. Smith vs. William S. Reddick, Her Husband.
    1. The husband is concluded by the solemn admissions made in different acts and in decrees of courts, that the property belongs to the wife. He can not retain theproperty as belonging to the community, for it belongs to the wife.

      2. The husband can not reconvene for claims of the community and obtain judgment during the existence of the community where she sues for the resumption of the control and administration of her paraphernal property.
    3. The claim pleaded by way of reconvention can be recovered only when tlie community has been dissolved by separation of property from bed and board,, divorce or death.
    A PPEAL from the Twenty-fourth District Court for the Parish of Plaquemines. Idvaudais, J.

      E. Howard MoCaleb for Plaintiff and Appellee:
    1. The wife may at any time demand judicially the administration of her paraphernal property, and this demand need not necessarily involve a separation of pi'operty or dissolution of the community. R. O. C. 2387, 2391; 8 N. S. 231; 7 Ha. 292; 10 ha. 138; 35 An. 806 ; 39An. 384.
    2. The husband can for no cause whatever site for a separation of properly. 12 An. 145; Marcado, T. 5., p. 571.
    3. There can bo no adjustment of accounts nor settlement of the community between the spouses until after the dissolution of the community. 39 An. 412. The members of the conjugal partnership, like other partners, can not sue for specific items and have their accounts adjusted during the life of the partnership. A settlement of the community follows, but can not precede its dissolution.
    4. After the dissolution of the community, whether by separation of property, separation from bed and board, divorce, or death, the wife has the option to accept or renounce. Marcado, T. 5, p. 604. This option she can not be compelled to exorcise before the community is dissolved. 12 An. 77; 13 An. 469. The community is a queer kind of partnership; it only exists after it has terminated, because it is only then that the wife may renounce and thereby destroy its existence in so far as she is "concerned; for a community renounced, is the same as if it had never existed. H. I)., p. 890, No. 6.
    5. Whore the. husband has in judicial proceeding .and authentic acts averred and admitted that the property in question was the separate paraphernal estate of his wife, he can not bo heard to gainsay or contradict the verity of these assertions. 23 An. 343; 23 An. 83; 40 An. 579 ; 85 An. 33; 41 An. 243.
    6. An orange, grove was first administered by the wife as administratrix of her mother’s succession. Subsequently, by a partnership of which she was a member, after it had become her property by inheritance, and lastly by the husband. During the periods covered by the succession (two years), and the partnership (five years), the husband can not claim to have had the administration. 8 N. S. 356; 14 An. 68.
    7. Neither the husband nor the community can claim for the enhanced value of an orange grove the wife’s paraphernal property, which is in a great measure attributable to the fertility of the soil, superior natural drainage, elevation of the land, and the construction by the Plate of levees in that section of the country. 10 An. 258; 39 An. 411.

      Zacharie & Armstrong for Defendant and Appellant:
    In a demand for a separation of property based on the allegation of the disorder of the husband’s affairs, it must be shown to the satisfaction of the court that the wife’s property andrights are in danger, owing to the embarrassments or • mismanagement of the husband. Unless this is shown to the satisfaction of the court, the decree will not be granted. R. C. C. 2445; 9 An. 269; 12 An. 146; 23 An. 278; 33 An. 1052; 6 An. 134;8 An. 485.
    When the paraphernal property of the wife is administered by the husband, the fruits are community property; and when such fruits are diverted to pay the paraphernal debts, the community becomes the creditor of the wife’s paraphernal estate to that amount. R. O. O. 2386; R. O. C. 2399; 6 An. 641; Pothier, Communanté, Nos. 206, 623; Duranton, T. 14, Sec. 570, Par. 509; Troplong, Oontrat deMariage, T.l,Par. 371, Sec. 317.
    And when these fruits are used to pay debts bearing interest, the community is ¡subrogated as the usufructuary to the right of claiming the interest the debts so paid bore, until paid to the community. 6 An. 641; 14 An. 686; 9 An. 269; 10 R. 47; 6 An. 636; Proudhon, Droit desUsufruits, T. 1, Edit. 1836, p. 340, Sec. 279; Id. ' Yol. 3, p. 574, See. 167; Id. T. 4, p. 89, Sec. 1907; Demolómbe, Contrats, T. 4, pp. ¡517,518; Pothier (Dupin’s) T. l,pp. 229, 230, Sec. 558; T. 10, p.546.
    Property purchased during marriage is presumed to be that of the community, unless it is distinctly shown that it was purchased with the separate money of one of the spouses, and for his or her own use. R. C. O. 2402; 10 D. 148; 17 D. 296; 1R. 431; 9 R. 210; 5 An. 610, 611; 6 An. 731; 7 An. 92; 10 An. 784; 11 An. 326; 29 An. 76; 15 An. 588; 33 An. 167; 33An. 609; 34 an. 975; 38 An. 147; 41 An. —(So. Rep., Yol. 6, No. 24, p. 585).
    When an improper reconventional demand is madé, objection to it should be made by a motion to strike out, or by objection to evidence on it when offered; when neither of these modes are adopted, it is too late after trial to ask that it be •stricken out, especially when both plaintiff and defendant have offered evidence under it without objection. 3 R. 364; 5 An. 3; 14 An. 849; 11 L. 309; 10 M. ■602; 33 An. 99; 33 An. 441; 34 An. 513.
    Where the prayer is for the resumption of the control and administration of paraphernal property by the wife, the husband can reconvene for paraphernal debts paid with community funds, and have judgment on the reconventional demand. 35 An. 807.

      On such reconventional demand the husband is a competent witness as the agent of his wife, in relation to the gestión of his administration of the paraphernal affairs. Act No. 59, Session of 1888.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff and the defendant were married on the 27th of November, 1870.

The wife sues (1) for a separation of property and the dissolution of the community; .(2) for resumption of the administration of her paraphernal property.

The decision of the District Court denied the separation of property, but it is favorable to plaintiff’s application for resumption of the administration of her paraphernal property.

The defendant’s answer is a general denial; specially denies the; right to dissolve the community, but does not deny the right of' plaintiff to resume the control of the administration of her paraphernal property.

He sets up a reconventional demand for the amount of community and separate moneys expended in payment of paraphernal debts and enhancement in value of the paraphernal property contributed by his labor, skill, and by his separate estate, and asks for a moneyed judgment thereon.

' The reconventional demand was dismissed. From this decision plaintiff in reconvention appeals.

. There is no evidence in the record to support the allegations of the petition with reference to the disorder of defendant’s affairs, without which the law does not give to the wife an action against her husband for the dissolution of the community.

In addition, counsel for plaintiff relies exclusively on the second cause of action, that is, for the resumption and control of the paraphernal property, and the first, i. e., for separation of property,, ia abandoned.

The questions arising in this appeal are what property constitute» the separate estate of the wife, and of which she should have the management as her separate property; and whether defendant can reconvene for paraphernal debts paid with community funds and obtain judgment against his wife in reconvention when she asks only for the resumption of the control and administration of her. paraphernal property?

The record discloses the following with reference to plaintiff’s title to paraphernal property:

At the death of her mother the plaintiff and her sister inherited Eclipse plantation, and other property, described in the inventory of the succession. The latter sold to the former her undivided half of their mother’s succession, and by this conveyance the indivisión of the property was made to end, and the plaintiff became the owner of all the property inherited by the two sisters.

A short time after, plaintiff, with the written consent of her husband, the defendant, petitioned to be placed in posssesion of the. property of her late mother as sole heir.

She assumed the payment of the debts and accepted the succession unconditionally.

She was duly placed in possession.

1. In a suit against the plaintiff and her husband, the record of which is in evidence, this plantation is described as the property of the plaintiff, and judgment was rendered against her, decreeing a mortgage on the property. '

2. In an act of sale, dated the 13th day of November, 1878, again the plantation is declared to be the property of plaintiff.

3.. In another sale made about the same time a similar declaration is made.

4. Also in an authentic act of partnership,

It has always been considered and treated by the husband as the wife’s property. The court in two judicial proceedings and in two judgments, to which he was a party, decreed that it is the separate and paraphernal property of the wife.

In his answer it is alleged strictly in accordance with the rights of plaintiff and the facts “that the'property described in plaintiff’s petition, and known as the ‘Eclipse Plantation,’ is the paraphernal property of the plaintiff partly by inheritance, but not entirely, as alleged in plaintiff’s petition, the one-half interest therein having been purchased from her sister and co-heir for the sum of $1000.”

This is the only property she now claims as her paraphernal property.

While examining into the facts and summarizing them, as well state at this time, that the plaintiff in reconvention introduced in evidence testimony without objection in support of his claim, which js now one of the grounds upon which he relies to maintain his demand.

His counsel also called him to the witness stand for the purpose of proving the averments of his reconventional demand, including doubtless the $575, his alleged separate rights, paid to improve plaintiff’s property. To this testimony the plaintiff objected on the ground that the husband is not a competent witness for or against his wife, and that the husband administering the paraphernal property of his wife and who is the head of the community is not an agent in the sense of Act 59 of 1888. This was the only testimony offered to prove the separate claim of defendant in the original suit. The objection was maintained.

In preparing the foregoing statement of the case we did not find an allegation of agency or any averment that any transaction arose from, or was involved in, or was connected with, an act of agency of the husband administering the paraphernal property.

There is no pleading with reference to any act of express mandate.

The relations existing between plaintiff and the defendant are not Included in the exceptions in the Act 41 of 1888, as enabling the husband to testify for or against the wife’s interest under the circumstances of the case at bar.

He administered the property, not as agent of the wife, but as head of the community.

The tacit mandate under which he acted is not that contemplated by the exception. The evidence was properly excluded. The reconventional demand is exclusively for an amount due to the community.

There is before us no question of any separate interest on part of the husband. None was proven.

It is urged upon our consideration in support of the position that half of the property is community, and that therefore the wife can recover the administration of only half; that as a general rule the law considers, as common property, all property acquired by husband and wife during marriage, although the title be taken in the name of •one only, and that if the wife claims property so acquired as hers individually she must establish her pretensions by legal proof.

The plaintiff has established her title to “Eclipse Plantation.”

Not a particle of evidence has been offered for the purpose of proving the incorrectness of the declarations in the different deeds that the property is hers.

The defendant now asks to have it declared that half the property belongs to the community.

He has solemnly declared that it is the separate property of his wife.

In his answer he- affirms that which he before averred; that is, that Eclipse plantation is the separate property of his wife.

The law presumes a community of acquets and gains in every marriage, but that presumption will not prevail against solemn acts and judicial decrees fixing the ownership in the name of the wife.

The plantation claimed belonged to plaintiff. 21 An. 83; 35 An.. 33; 41 An. 244.

Lastly, it is urged that the reconventional demand should not have been dismissed; 'that plaintiff, as head and master of the community,, has right to judgment against the paraphernal property. It is undeniable that during the existence of the community the husband can not sue his wife either directly or by way of reconvention for debt. ■ He can not recover judgment even with her consent. Hotard vs. Hotard, 12 An. 145; Marcade, tome, 5 p. 571.

The plea in reeonvention has no title to special favor. If the husband could recover judgment, it would become executory whether by direct action or by way of reconvention. The property of the wife- could be sold to satisfy the judgment. On dissolution of the community the separate property would have been absorbed, and the wife no longer the owner. At any time it might please the husband suit could be brought, judgment obtained, and the separate property sold, thereby defeating the intended protection of the law, and leaving the property to the unrestrained speculation of the husband and, possibly, of his creditors.

If such judgments were legal during the existence of the community, the property of the wife would be in easy reach of the husband’s creditors in direct violation of a prohibitory law; for community claims might be used to destroy the separate rights and change the ownership of her separate property. If the husband could at this time obtain a judgment on his reconventional demand, there is no law which would prevent him from recovering at any other time during the existence of the community.

The community rights must remain in abeyance, to be settled by a general casting of accounts, when the community will be dissolved. The wife can at that time renounce.

A reconventional demand can not be made which will defeat her right of renouncing.

The effect of the renunciation is to place the husband and wife in the situation they would be in, had no community ever existed between them. Johnson vs. Pilster, 4 R. 76; Brassac vs. Ducros, Ib. 335; McDonough vs. Trepe et al., 7 N. S. 69.

The husband and the wife are equally liable for the debts contracted during the community. O. C. 2409.

The wife may be relieved from paying any part of these debts by renouncing the community. C. C. 2410.

She loses her rights to the community assets, but she retakes her paraphernal property. C. C. 2411.

In order to arrive at a fair settlement of the rights of the parties to the community, it is necessary to consider the property which the spouses had at the time of their marriage; that which they received or acquired during the marriage, and the property and effects they reciprocally owned and possessed at its dissolution. Broussard vs. Bernard, 7 La. 217.

. In settling the community reference must be had to its condition at its dissolution. Thibodeaux vs. Thibodeaux, 16 La. 43.

The intended protection of the community by these articles of the Civil Code, and the jurisprudence on .the subject, would at times be of little avail if intervening judgment could be obtained, such as now sued for.

A question similar to the one under consideration was decided in the case of Bartoli vs. Huguencaud, 39 An. 413.

That suit was instituted to recover from the wife one-half of the alleged profits realized during the community on her separate property community under the administration of the husband. None of the property remained. The effect would have been to take from the wife’s separate property enough to satisfy his claim. The court held in that case that the interest of the wife attaches at the dissolution of the community, and that a prior condition of affairs of the community could not be taken as a basis for settlement. See also C. C. 2430, 2431.

In the ease at bar a community right is made the ground for a reconventional demand prior to any dissolution of the community. The case of Joly vs. Weber, 35 An. 808, is confidently quoted by counsel in support of the reconventional demand. In that case there was a marriage contract between the parties in which a community of acquets and gains was stipulated. It was stipulated that each spouse should pay his and her respective debts existing before the marriage. .

The amounts claimed were due by the succession of the first husband, and part of them by the wife prior to her marriage, which she, in the marriage contract, had obligated herself to pay.

It was decreed that the wife as tutrix should be made to pay the amount she owed in that capacity, and that the sums due by her personally (prior to the marriage) should be paid in accordance with the terms of the marriage contract.

Defendant’s counsel states that it is trué under the French law debts due to or by the community can only be settled after the dissolution of the community, but that this principle is distinctly based on the Articles 1468 and 1478 of the Code Napoleon, and that in the Louisiana Code there are no articles corresponding to these.

The difficulty is not in finding laws specially and in terms operating a prohibition of the suit for a community claim against the wife during the existence of the community, as there are in France, but in reaching the conclusion in. accordance with the policy of the law regulating the community under the laws of Louisiana, that a judgment can be obtained against the wife as prayed for in this case.

If the husband has a right to a part of the community before its ■dissolution, and to a judgment therefor, a fortiori, the wife should have a similar right.

But she is absolutely prohibited from sueing her husband as long as the marriage continues, except it be to obtain a separation from bed and board or for a separation of property or for the restitution and enjoyment of her paraphernal property. ' C. P. 105.

She has a similar interest to that of the husband in the community, .and yet she can not secure judgment for any part of the community before its dissolution, but the husband can if the theory submitted to our consideration be correct.

But this special right has not been conferred on the husband. He ■can not recover judgment, for “the partnership or community consists of the profits of all effects of which the husband has the administration and enjoyment,” C. O. 2402, “and the debts contracted during the marriage enter into the partnership or. community of gains, and must be acquitted out of the common fund,” C. C. 2403, and at the dissolution of the marriage and of the community, “the ■effects which compose the partnership or community of gains are ■divided.” Art. 2406, C. C.

Our conclusions make it unnecessary to expressly decide the effect or non- effect- of the testimony admitted without objection, which was offered and admitted for the purpose of proving the reconventional demand. • •

The law in its policy does not admit such a judgment, and the evidence does not cure the illegality of the plea for alleged debts which may have accrued during the existence of the community.

Each proposition for the defendant has received our careful consideration, the more so as it appears that he has industriously worked a number of years.

The witnesses testify that he has labored faithfully and with some skill in repairing the separate estate of his wife, and that it has been improved by his management.

We must bear in mind that “laws do not relate to solitary cases, but to what passes in the ordinary course of affairs,” and in its application our conclusions are that it is not possible to entertain the plea in reconvention.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,614.
    Eugene Schmitt et al. vs. Widow O. Drouet and Eugene Rabasse.
    Ad official bond, furnished in compliance with the requirement of a law which specifics its conditions, is a legal bond, of which the law forms part.
    The obligations of a surety in such bond must be strictly construed, and must not be extended beyond the intent of the law.
    A surety on a notary’s bond is liable only for his failure to discharge well and faithfully the duties incumbent upon him, or required of him by law, and is not responsible for acts done by the notary, which he had no legal power to do.
    The attestation of a notary that payment of a note has been prolonged as per act before him, when in truth no such act existed, is not a duty incumbent on him, or required of him, and is unauthorized by law.
    The known falsity of the attestation does not involve the surety intopeeuniary liability.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. Ti. Murphy and Omer Villeré for Plaintiffs and Appellees.
    ■ Charles Lougue for Defendant and Appellant.
   The opinion oí the court was delivered by

Bermudez, C. J.

This suit involves the liability of a surety on a notary’s bond furnished in 1884.

From a judgment in favor of Trepagnier and Birba the surety, Rabasse, appeals.

The facts are as follows:

On the 28th of May, 1888, and on the 18th of December of the same year, two mortgage acts were drawn up by Oscar Drouet, a notary for the parish of Orleans, by the first of which Degeorge is said to have issued two notes of $500 each in favor of Trepagnier, and by the second of which Mansion is stated to have issued in favor of Tudury three notes of $1P00 each, and both to have secured them by mortgage on their respective property described in the acts.

At the dates of the acts the notary paraphed the notes “ ne varietur,” as secured by mortgage by acts before him.

On the notes are found unsigned indorsements showing payments of interest at different times.

Each of the $500 notes bears an indorsement in the following terms: ‘'Ne varietur.”

In conformity with an act passed this day before me, containing prolongation of payment of this note for one year from 28th of May last, and all interest paid up to 28th May, 1889.

“ Oscar Drouet, Notary Public.

New Orleans, 11th May, 1888.”

Each of the $1000 notes bear a similar indorsement, except as to the date from which the prolongation begins and up to which the interest was paid, which is the 18th of December, 1889. The'indorsement is dated: “ New Orleans, 27th Dec., 1888,” • and is signed

Oscar Drouet, notary public.”

Neither the acts of mortgage nor the notes were signed by either Degeorge or Mansion. That which purported to be their signatures thereto had been forged by Drouet, the notary. The acts of prolongation referred to in the indorsements had no existence. They had never been even drawn up and forged.

Trepagnier and Birba owned the notes previous to the dates of the last indorsements thereon, referring to the acts of prolongation.

On the 22d of August, 1884, long before the date of the last indorsements, Drouet had furnished a bond as notary for the parish of Orleans, for the sum of $5000, with Eugene Rabasse as surety thereon, containing the following stipulation:

“ The condition of the above obligation is such that, if the above bounden Oscar Drouet shall well and faithfully discharge and perform all the duties incumbent on him, as notary public in and for the parish of Orleans, then and in such case the above obligation to be null and void; otherwise to remain in full force and virtue.”

The question presented is simply whether Rabasse is liable to Trepagnier and Birba, because of the falsity of the indorsements made by Drouet, as notary, on the 11th May and 27th December, 1888, on the notes respectively then held by them, after thé date of the bond furnished by him.

In order to solve the question, it becomes necessary to determine the extent of the responsibility assumed by the surety and ascertain whether the act done by Drouet was a duty incumbent upon him as notary, coming within the purview of the contractual obligation entered into.

The bond is a legal bond, furnished in compliance with a special law requiring it, and which forms part of it.

The stipulations which it thus contains constitute the contract entered into and must be strictly construed.

The object contemplated was to make certain that the notary would discharge and perform well and faithfully all the duties incumbent upon him, and in case of his failure to do so, and loss was sustained thereby, to hold the surety liable.

Section 2503 of the Revised Statutes indeed provides that the bond shall be “conditioned for the faithful performance of all duties required by law toward all persons who may employ him in his profession óf notary.”

The section applies to all bonds furnished by notaries, whether for the parish of Orleans or the other parishes.

Under the law, notaries and their sureties are liable to all persons who have employed them and who suffer injury on account of their failure to perform a duty incumbent on them or required by law.

It would be cumbersome, and unnecessarily so, to enumerate all the acts which a notary may legally do.

A notary is defined to be an officer whose duty is to attest the genuineness of any deeds or writings in order to render them available as evidence of the facts therein contained. Abbott’s Digest, Yol. 2, p. 182, V. Notary.

Also, a notary is a public functionary, authorized to receive all acts and contracts to which parties wish to give the character of authenticity attached to the act of public authority, to secure their date, their preservation and the delivery of copies. Diet. Droit 'Civil, Yol. 5, p. 27, Y. Notaire.

Although Section 2492, Revised Statutes, provides that notaries public shall have certain powers, it does not undertake to enumerate them all. It does not mention, for instance, that of receiving the renunciation of married women of their rights over the property of their husbands; the duty imposed upon notaries to attend to the'registry of acts of sale in the conveyance book of the proper office, to paraph notes secured by privilege, or mortgage with acts before them, R. C. C. 8884, and various other acts authorized by law.

In the cases of solemn acts, that is, of acts which, in order to be valid, must be drawn up after the fulfilment of certain specified formalities, and must be framed in a particular form, a failure by the notary to observe the ceremonies required by law, which it is incumbent upon him to comply with under pain of nullity, the notary is responsible for a non-compliance therewith, and his bondsmen are likewise liable with him, their obligation being that he will faithfully discharge and perform all the duties incumbent on him, or required by law of him, or else he and they will be liable toward persons employing them.-

Before a notary and his surety can be held, it is necessary therefore to determine whether the act done or not done, committed or omitted, was or not authorized by law, was or not incumbent upon him, -was or not required of him, whether he was directed to do it, whether he has failed to discharge the duty, and whether injury has been sustained.

It has hence been held, that where a notary does a thing which the law does not authorize him to do, although he does so, eo nomine, in his capacity of a notary public, the surety is not responsible.

In Brown vs. Schmidt, 7 An. 349, it was decided that where a' purchaser had paid the price to the notary he incurred the risk of •the deposit.

In Lescongere vs. Ducatel, 18 An. 470, which was a suit against a notary and his sureties for the recovery of money deposited with the notary and not delivered by Mm, the court stated that the law had not made it the official duty of a notary to receive money, holding that u the securities of a notary are only liable on his failure to discharge the duties of his office.”

In Monrose vs. Brocard et al., 20 An. 78, which was a kindred suit, the court relieved the surety, saying that the security which the notary gives for the faithful performance of his duties is only bound for such acts of his as the law authorizes or requires him to do in his official capacity.

In Saloy vs. Bank, 39 An. 93, these rulings were referred to with •approval.

Indeed, by signing the bond the surety tells all who may need the services of a notary: You can go with security to this notary. I assure you that he is a competent officer'; that he will well and faithfully discharge and perform all the duties imposed upon him by law; and if he fails in doing so, I will be responsible to you for loss sustained.

If therefore a person calls on a notary for the performance of a duty incumbent upon him, and the notary fails therein and injury is suffered, the surety is liable to the party injured.

Burge on Suretyship, p. 49, says that the surety of a public officer is responsible only for those acts which are done by virtue, or under color, or by means of the office he holds.

Laurent, Vol. 19, p. 108, No. 112, while dealing with the responsibility of notaries, says:

“ Hors de la mission, l’offieier public n’est plus qu’ún simple particulier.”

Applying these prineiplés to the case under consideration, it is apparent that there exists no law authorizing a notary, or making it a duty incumbent upon him, to write offiicially on any note, or utter any certificate, that a prolongation of payment of a debt has been allowed by an act before him.

Such attestation could not be authentic; would be in law barren of any effect; could subserve no useful purpose. It could not prove itself; could not be admitted as evidence to show the fact of extension or prolongation. To establish this, the act referred to.would itself, or a copy, have to be produced as the best proof. It would be nothing but a written hearsay declaration, and, as such, inadmissible and of no effect.

■■ Although it is manifest that the notary in this case has committed wrongful and criminal acts for which he could have been prosecuted and punished had he lived, it does not follow that his surety can be lield pecuniarily responsible.

It may be that, had the plaintiffs employed the notary to draw up the acts of prolongation and have them signed by the proper parties, and had he prepared them, forging the signatures of the appearers thereto, thereby lulling the creditors into security and preventing them from taking steps to enforce recovery in some way, the surety might be endangered; but the reason would have been that the notary employed to draw up the acts had failed to perform a duty incumbent upon him and required of him by his employer and had prevented the creditor from having recourse to law to secure his rights; but this is not the case presented, which is simply one in which a surety is sought to be held, because his principal, the notary, has done acts which the law did not authorize or compel him to perform, and which were therefore not incumbent upon him.

The suggestion of want of jurisdiction made since the submission of the case has no merit.

This suit is for a sum exceeding $2000. The judgment was for upward of $2500. The appellant admits no liability and seeks the reversal of the judgment.

For these reasons it is ordered and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged that there be judgment in favor of the defendant, Rabasse, respecting the demand of the plaintiffs, Trepagnier and Birba, against him as surety, with costs in both courts.


author: Fenner, J.

text:
    No. 10,404.
    The State of Louisiana vs. John Cozzens.
    1. Article 30 of the Constitution applies only to acts of the General Assembly and not to ordinances of municipal corporations.

      1. Under the power expressly granted to the city óf New Orleans to regulate the vise of its streets by railways, a discretion is vested as to method and means of regulation, which will not be judicially interfered with, unless manifestly unreasonable and oppressive.

      APPEAL from the First Recorder’s Court for the City of New Orleans. Murphy, J.

      T. MoO. Hyman, Assistant City Attorney, and Garleton Hunt, City Attorney, for Plaintiff and Appellee.

      Girault Farrar for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

This appeal involves the legality and constitutionality of Ordinances Nos. 555 and 3632, C. S., of the Citiy of New Orleans.

The first ordinance makes it the duty of railway companies “to station at each intersection of any street within the city of New Orleans on which street cars are running, at least two minutes before the approach of any of their trains, a watchman, who shall remain on the spot until after the passage of the train, with a red signal flag in the day time, and a red lantern at night time, to signalize the approach of the train.”

The second ordinance inflicts a penalty of fine or imprisoment on any engineer or person in charge of a train who shall violate said ordinance by crossing his train over such streets without being flagged as therein provided.

We are favored with no brief on the part of appellant.

■ We glean from the record, that he attacked the validity of the 'amendatory Ordinance-No. 3632 on the ground of conflietwith Article 30 of the Constitution, which prohibits the amendment of laws by reference to the title, and requires that the act as amended shall be recited in full.

This provision applies only to acts of the General Assembly, and not to ordinances of municipal corporations. Waters vs. Tax Collector, 31 An. 668.

In other respects the ordinances present an exercise of the power expressly granted to the city in its charter “to authorize the use of the streets for horse and steam railroads, and to regulate the same.77We discover nothing in this regulation so unreasonable as to justify our interference with the large discretion vested in municipal corporations in such matters.

Judgment affirmed.


text:
    No. 10,617.
    Mrs. E. R. Carroll vs. Her Husband, Charles V. Carroll.
    1. During tbe marriage the wife Jias no right of action against her husband for alimony, unless there is demanded either a separation from bed and board or a divorce.
    2. A demand for alimony by a wife against her husband is an incident of a suit for separation from bed and board, or divorce. It is accessory to it and inseparablefromit. An independent suit for alimony, disconnected with and not growing out of a suit for separation from bed and board, or divorce, is an anomaly.
    8. There being in the plaintiff’s petition no demand for either a separation from bed and board, or divorce, a case for alimony is not stated; and an interlocutory judgment therein, awarding alimony pendente Ute, is a nullity, and no length of time would enable the party in whose favor it was rendered to shield it by a plea of prescription orres adjudicata.

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

      W. S. Benedict and Read & Goodale, for Plaintiff and Appellant,
    cited 19 La. 582; 32 An. 16; O. P., Art. 105; 2 La., 148; 6 La. 498; 18 An. 643; 32 An. 15; 35 An. 806; 13 An. 573; 36 An. 70.

      Moise & Cahn, for Defendant and Appellee,
    cited C. P., Art. 105; 18 An. 41; 18 An. 613; 32 An. 16; 41 An. 284.
   The opinion of the court was delivered by

Watkins, J.

The suit which gives rise to the present controversy was filed on the 22d of April, 1874, and the principal averments of the petition are that the defendant abandoned the matrimonial domicil, and has refused, and persistently refuses, to support her, and without justification or excuse. That he has ample means at his command, and expends same for his own gratification and pleasure, while she is left in necessitous circumstances, and forced to rely upon friends for support and maintenance. The prayer is that the defendant be cited to receive her at his domicil, and to furnish her, as his lawful wife, with the necessities of life according to his posi*tion and means, or, in the alternative, that she have judgment compelling him to give her aid and support in the sum of $100 per month. • To this petition the defendant tendered the general issue as an answer.

Immediately thereafter the plaintiff, suggesting to the court that inasmuch as some time would necessarily elapse before a trial could be had on the merits, she prayed for a rule on defendant to show-cause why “a provisional alimony of $100 per month should not be allowed petitioner pending this litigation, commencing from the filing of this suit, and payable in advance.”

To this rule the defendant excepted, on the ground that the petition in this ease shows no ground for alimony, as it is not a suit for separation or divorce, and alimony is allowable only in suits for separation or divorce pendente lite.

This exception was overruled, and on trial thereof the rule was made absolute, and defendant was adjudged to pay to the plaintiff “alimony at the rate of $100 per month” from the filing of the suit until the final determination thereof.

This decree was signed on June 1, 1874.

The original suit remained in statu quo, and on the 25th of January, 1884, a petition for the revival of the judgment rendered on said rule, and a citation thereunder, was duly served on the defendant in person a day or two subsequently, and a judgment of revival was signed, the defendant having made no appearance,' and the case being tried on default.

On the 24th of September, 1889, the present counsel appeared for the defendant, and filed a supplemental and amended answer, in which the following defences are set out substantially, viz:

That the plaintiff is without right to stand in judgment herein, and that the judgment rendered and signed therein on the 1st of June, 1874, should be annulled and set aside, as well as the judgment reviving same, and plaintiff’s demands rejected.

To this answer the plaintiff excepted, first, that the record shows full proof of her allegations and no defence; second, res judicata and prescription; and third, that the averments of defendant’s supplemental answer are unfounded in fact, and not consonant with good morals.

A trial was had on the merits, and a final judgment rendered and signed on the 12th of March, 1890, in favor of the defendant, and the plaintiff has appealed. The judgment not only rejected the plaintiff’s demands, but it also annulled the interlocutory decree of June 1, 1874, awarding alimony to the plaintiff pendente lite, and the judgment reviving same.

Hence this appeal presents the questions, first, whether the plaintiff is or was capacitated to stand in judgment against her husband as a defendant, in a suit for alimony pure and simple; second, had the judge a quo authority to annul the interlocutory decree awarding the plaintiff alimony pendente lite.'

I.

On the first proposition we feel bound to hold with the District Judge that the plaintiff did not have, and has not, the capacity to stand in judgment against her husband in this suit, it being for the recovery of alimony during the existence of their marriage, and unaccompanied with any demand for separation from bed and board, or for a divorce.

It is provided by Oode of Practice, Article 105, that “a married woman can not sue her husband so long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds her .property separate from him by her marriage contract, or for divorce,” etc.

This language is prohibitive, and precludes a married woman from suing her husband in any case or for any cause other than those specifically mentioned in that article.

On this subject the provisions of the Civil Code are harmonious with those of the Code of Practice. For it is provided by Article 138 of the former, that, for the causes enumerated, either of the spouses may claim judicially a separation from bed and board; by Article 139, that married persons may reciprocally claim a divorce for certain specified causes; by Article 2391, that a wife has, during the marriage, a right of action against her husband for the restitution of her paraphernal effects; and by Article 2425, that a wife may petition her husband for a separation of property.

In case the wife sues for a separation, either from bed and board or divorce, and “has not a sufficient income for her maintenance” during the pendency of such suit, it is made the duty of the judge to allow her “a sum for her support, proportioned to the means of her husband.” R. C. C. 148.

These are the articles of the codes which control and govern the wife’s rights, and provide her remedies in matters between her husband and herself. They are exclusive of all others. They exclude the plaintiff’s right of action for the allowance of alimony against-her husband during the existence of the marriage, and uncoupled with any demand for a decree of separation from bed and board or divorce.

Plain and unambiguous as the quoted articles appear to be, they have undergone judicial investigation, and been interpreted in several cases, and notably in Heyob vs. Her Husband, 18 An. 41, Moore vs. Moore, 18 An. 615, and Holbrook vs. Holbrook, 32 An. 15; and in each of which the wife was held to have no cause of action for alimony in such case as this".

In the first case the court held that the plaintiff’s demands did not come within the provisions of Article 105 of the Code of Practice,, and said:

“The marriage is not dissolved, and she does not sue for a separaration from bed and board or divorce, nor for a separation of property, nor for the restitution and enjoyment of her paraphernal property; nor is she claiming any rights under and by virtue of a marriage contract.

“The plaintiff has not presented herself in a position before the court to obtain a judgment for alimony * * and we think the exception that no legal cause of action is shown should have been maintained.”

In the second case it was said that “ the general rule is that a wife has no right of action against her husband, but there are exceptions which are indicated in Article 105 of the Code of Practice.” After quoting it, the court say: “ This article prohibits, in the strongest words, any action by the wife against her husband, except those enumerated in it. She can not sue.”

In the third case the court announced the pith of the question concisely.”

“The demand for alimony by the wife against the husband is an incident to. a suit for separation or divorce — is accessory to it, and inseparable from it. An order or judgment for alimony is made pending such suit. A suit for alimony between such parties, disconnected with and not growing out of a suit for separation or iivorce, is an anomaly.”

Notwithstanding this suit was filed in 1874, it was suffered to remain untried and not disposed of until 1890. It was put at issue in the interim by an answer. To the plaintiff’s rule on defendant to show cause why a provisional alimony should not be allowed her pending the litigation, the latter excepted on the grounds stated in Code o.f Practice, Article 105; and consistently therewith he has recently supplemented his answer by averring that the plaintiff was without right to stand in judgment. The case was an open one, and the issues were appropriately and correctly determined by the lower judge. The plaintiff had no capacity to stand in judgment on the issues presented, and her demands were correctly rejected.

II.

The same argument and authority cited in the preceding paragraph are alike applicable to this one. Though judgment was taken on a rule for alimony, pendente lite, the right was resisted and denied by the defendant; and the issue raised thereon was precisely the same as that raised in the petition. After the judgment had been rendered on the rule, decreeing the plaintiff entitled to alimony, there was in reality nothing for determination on final trial if, in law, that judgment was valid and could stand. But as that decree was only a preliminary one — an interlocutory decree — something else was necessary to found the plaintiff’s demand, i. e., a final judgment on the merits. And as it was an interlocutory decree, and inconsistent with the final judgment rendered in the cause, it was necessarily annulled by the latter, in effect as well as in terms.

Inasmuch as there is no demand made in the plaintiff’s petition for a decree of divorce or separation from bed and board against her husband, a case for alimo.ny is not stated, and the interlocutory judgment awarding alimony in her favor pendente lite is stricken with a radical and incurable nullity, and must be revoked. Prescription and res judicata can not save it.

Judgment affirmed.