source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,829.
    Mrs. A. DeGrilleau et al. vs. John J. Frawley et al.
    A vendor in selling different portions of his property to others, may impress upon it by private contract, rights analogous to the public riglits of highway, and yet those rights confined to the owners and representatives of the land forming the subject of the compact. The mere fact that an alley opens upon a public street does not make it a public alley.
    A plain and positive intention to dedicate to public use is an essential element of a dedication, and that intention must be shown by acts or language so. clear as to exclude any other reasonable hypothesis, or at least to clearly convince the judicial mind. 0. 0., Art. 753; 37 An. 235; 41 An. 867.
    A private way with no portion lying upon a public street, and a mere appurtenance of the lots abutting upon it, does not- fall under the operation of Sec. 87 of Act No. 20 of 1882, relative to paving. *
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Carroll & Carroll for Plaintiffs, Appellees.

      Carleton Hunt for Miss Louisa Egan, Intervenor, Appellee.

      E. A. O’Sullivan, City Attorney, for the City of New Orleans, Defendant, Appellant:
    Where there is no privity there can be no joinder of parties. 14 An. .177; 15 An. 503; 29 An. 105; 30 An. 606.
    Streets are divided into public and private. What is a private street or road? C. 0., Art. 706. What is a public street or road? 0. 0., Art. 705.
    No form is necessary to dedicate property to the public use. Any act or plan, or plat, made by the original owner, is sufficient to prove dedication. 14 La. 172; 3 An. 282; 9 An. 597; 34 An. 1093; 37 An. 602; 45 An. 1405.
    The city of New Orleans has power to make, repair, and build streets and alleys. Act No. 20 of 1882; 45 An. 1405.
    Argued and submitted December 4, 1895.
    Opinion handed down January 20, 1896.

      STATEMENT OP THE CASE.
    Mrs. Alice Grailhe, wife of Albin DeGrilleau, Robert A. Grailhe, ' Oharles T. Grailhe and Mrs. Adele Beer, widow of Abraham Beer, claim to be joint owners of two lots fronting on Oanal street, in city of New Orleans, and that their respective properties all extend in the rear to an alley twelve feet wide, running from Baronne street through to Dryades, which alley is an alley common to all the lots on the said square bordering upon the same, with the right of the owners of said lots to use the same, and that for more than thirty years the alley has had a gutter or drain on each side thereof, one of the gutters or drains being on and along the north side of the same, and the other on and along the south side thereof from Baronne to Dryades street, there being space between the gutters for the business carried on in the alley; that all or nearly all of the property on the south side of the alley belonged to Louis Grünewald, and that most, if not all, of the improvements on the south side of the same form a part of the Grünewald Hotel and the buildings connected therewith; that the liquid refuse and drainage from the hotel should under no conditions or circumstances be allowed to flow into or through the gutter on the north side of the alley running along petitioners’ property.
    They allege that one John J. Frawley is now actively, wrongfully and unlawfully interfering with and changing and altering the said alley, and the arrangement and conformation of the same, and of its drains and gutters; that he is closing and destroying the drain on the side nearest to the Grünewald Hotel, and is arranging to place pipes and other conducts, whereby all the drainage and liquid refuse from the said hotel, and from the south side of the alley, will be thrown and carried into the gutter on the north side, being the gutter running alongside of the properties of petitioners.
    They aver that Frawley claims to be acting and working under a contract made by him with the city of New Orleans, but they aver that no legal contract has been or can be made whereby Frawley can lawfully make such alterations and changes as have been commenced and are now being carried on by him; that the alley is a common alley for private use only;, that it is not a public street or sidewalk, and that the pretended contract which Frawley claims to have made with the city of New Orleans is null and void.
    Petitioners pray* for damages and that a writ of injunction issue, enjoining the city of New Orleans and Erawley, and each of them •from taking any further steps under the alleged contract claimed to have been made between them with reference to grading and paving said common alley, and enjoining them and each of them from making any further changes and alterations in said alley, and for the drainage thereof in pursuance of said contract, and from allowing the changes already made to continue and remain, and from allowing any of the waters or drainage from said Grünewald Hotel, and from the south side of said alley, to flow or pass into the gutter on the north side of said alley, and from closing the drain or gutter on the south side of said common alley.
    ' An injunction issued.
    A motion was made by the city of New Orleans to bond the injunction, suggesting that plaintiffs had not alleged irreparable injury as resulting from the acts set forth in the petition, and that no irreparable injury could result by defendant’s action, and it joined the defendant Erawley in excepting to the demand excepted to on the ground that there was a misjoinder of parties. The court overruled the exception of misjoinder and referred the motion to bond to be disposed of on trial of the merits.
    Before the case went to trial, Miss Mary Louisa Egan intervened in the case, joining the plaintiffs in their demands. Her intervention was grounded upon the claim that she was the owner of lot No. 2, in the same square of ground as the lots of the other plaintiffs. She substantially adopted plaintiffs’ allegations and prayer for judgment.
    The city of New Orleans, defendant, in answer, denied that the alley was a common alley-way for the sole use and enjoyment of the petitioners fronting on the same, but averred that the same was a public street, recognized as such, over which the city of New Orleans, by the powers conferred upon it by Act No. 22 of 1882, had full power and control, and that plaintiffs themselves recognized the power of said city over said alley-way by a petition duly signed by A. & 0. Denis, agents, for and on behalf of plaintiffs in this cause, as would fully appear by petition annexed to and made part of the city’s answer. That for over forty years the right of the city had been recognized and exercised over said alley; that plaintiffs had no title to the alley-way, but only to the use thereof, the alley forming the boundaries to the respective properties. The city denied the right of plaintiffs to interfere with it in the administration of its police powers over the streets.
    Frawley, denying all liability, relied upon the contract entered into between himself and the city.
    The District Oourtrendered judgment perpetuating the injunction, reserving to Frawley whatever right of action he might have against the plaintiffs and intervenor for damages caused by their interfer - ence with the contract in controversy.
    The city of New Orleans appealed.
    Plaintiffs answered the appeal, praying that the judgment, in so far as it reserved to the defendant Frawley any right of action for damages, be amended so that said reservation be stricken out and eliminated; that the judgment be also-amended so as to declare and decree null and void and of no effect the alleged contract between the city of New Orleans and Frawley and so as to award damages to plaintiffs as prayed for in their petition.
    STATEMENT OF FACTS.
    The General Assembly in 1850, by the first section of Act No. 170 of that year, anthorized and directed the Governor of Louisiana to transfer and deliver to the New Orleans Mechanics’ Society the possession and occupancy forever of a certain portion of ground in the square bounded by Oanal, Baronne, Common and Phillipa (now Dryades), in the city of New Orleans, the said portion of ground' having seventy feet on Phillipa street, to be measured from the line of the ground occupied by the University of Louisiana in the direction of Oanal street, by a hundred and fifty feet in depth between parallel lines. By the second section of the act it authorized the Governor to cause to be laid out in proper form the remainder of the square in lots and then sold to the highest bidder, provided the remainder of the square pay the debt and interest due on said property ; said property to be sold, payable at such period as would meet the bonds of the State issued for the purchase of said property.
    Acting under the authority so granted, the pr jperty mentioned in the second section was divided, under direction of the Governor, into twenty-six lots, laid o.ut in proper form, according to a certain plan, and were sold at public auction.
    The record contains an admission of parties to the following effect:

      “It is admitted that when the State of Louisiana sold a portion of the square aforesaid, it divided the part so sold, making lots which fronted on Canal street, making an alley running along the rear of those lots so fronting on Canal street, making other lots which fronted on the said alley, and still other lots which fronted on Baronne and Phillipa streets, as shown upon the sketch “A,” and the measurements of those lots are all as shown in the red ink upon the said sketch “ A.” The lots upon Canal street all being in depth 120 to 121 feet 3 inches and the alley being 12 feet wide.”
    On the sketch referred to, twelve of the lots, designated by the numbers one to twelve, both inclusive, front on Canal street, lot No. 1 being at the corner of Canal and Phillipa, lot No. 12 being at the corner of Canal and Baronne streets, and the other lots, from one to twelve, adjoining each other and beiDg numbered consecutively from Phillipa to Baronne street. Lot No. 13 was the upper corner lot at the intersection of the alley and Phillipa street. Lot No. 19 was the upper corner lot, at the intersection of the alley and Baronne street.
    Five of the lots, designated by the numbers 14, 15, 16, 17 and 18, front on the alley alluded to; five of the lots, designated by the numbers 19, 20, 21, 22 and 23, front on Baronne street (No. 19 being at the intersection of the alley and Baronne street), and four, designated by the numbers 13, 24, 25 and 26, front on Phillipa street (No. 13 being at the intersection of the alley and Phillipa street) .
    The plaintiffs, Alice Grailhe, wife of Albin DeGrilleau, Robert A. Grailhe and Charles T. Grailhe, are- owners of lots Nos. 9 and 10 on that sketch. Mrs. Adele Beer, one of the plaintiffs, is the owner of lots Nos. 11 and 12, and Miss Louise Egan, the intervenor, the owner of lot No. 2. Levy is the owner of lot No. 1. They derive title from the State of Louisiana under and through the purchases made of the property at the auction made in 1850 under Act 270 afore - mentioned.
    It is admitted that in the acts of sale of the lots on Canal street * * * to the original purchasers, the measurements in the rear of the lots are given as “so many feet and inches in - the rear on alley twelve feet wide, extending from Baronne to Phillipa street, together with the use in common with the other lots on the said alley, and all rights and privileges thereunto belonging.” That in the deed of lot No. 13 the lot is declared to “measure 39 feet 6 inches and 2 lines depth and front on an alley twelve feet wide, extending from Baronne to Phillipa street,” the act declaring that “said lot is in common with others entitled to the aforesaid alley and to all rights and privileges thereunto belonging; also, that [in the deed to lot No. 19 the lot is said “to measure 185 feet in depth and front on an alley twelve feet wide,” the act declaring that “the said lot, in common with the others, is entitled to the use of the alley, twelve feet wide, extending from Baronne to Phillipa street, and the rights and privileges thereunto belonging; also, that in none of the acts covering lots Nos. 20 to 26, inclusive, was there any reference whatever to the alley in question.” Lots Nos. 15,16,17,18 and 19 now form part of the Grünewald Hotel property. Subsequent to the sale of the lots upon the alley by the State the parties owning property abutting upon the same paved it at their own expense — first with cobble stone, and afterward with square blocks, placing two gutters about a foot in width on each side of the alley, extending the full length, from Baronne to Phillipa street. Doors were made in the rear walls so as to communicate with the alley and holes made also in the walls for drainage purp >ses. The properties fronting on Canal street were mostly used as stores, and the merchandise for the same was almost entirely received into the stores from the rear through the alley. Matters remained in that situation until recently, when a large house, known as the Grünewald Hotel, was erected upon the lots mentioned. This building is so built and so used as to greatly increase the drainage into the alley coming from the southern or up-town side of the same.
    Some time in the spring of 1894, Charles E. Levy, the owner of lot No. 1 (the lot at the corner of Canal and Phillipa streets, and running back to the alley), presented to the Common Council, a petition signed solely by himself, but evidently intended originally to have been signed by others, in which the following language was used:
    “ We, the undersigned property owners, owning property fronting the alley, extending from Baronne to Dryades street (Phillipa) in the square bounded by Canal, Dryades, Tulane Avenue (Common street), and Baronne street, do hereby petition your honorable body to have laid on said alley, a vitrified brick pavement on a base or concrete six inches thick, all in accordance with Sec. 87 of the City Charter, and according to plans and specifications to be prepared by the City Engineer.”

      The following letter, evidently of a date later than the foregoing petition, was forwarded to the Oommon Council by Messrs. Grüne-wald, A. & 0. Denis, agents, and Ohas. E. Levy :
    “Gentlemen — In relation to the paving with vitrified brick the alley, extending from Baronne to Dryades street, in the square bounded by Oanal, Dryades, Baronne and Tulane avenue, we, the undersigned property owners, request of your honorable body that you pass the necessary resolutions instructing the Oity Engineer in preparing specifications for this work to specify that the brick used shall be of the quality known as the Harris paver.
    “ Respectfully,
    (Original signed)—
    No. Names. Address. feet.
    Louis Grünewald.14 to 20 Baronne street.200
    Pp. DeGrilleau and Grailbe.
    A. & O. Denis, Agents ....'.164 and 166 Canal street. .48
    Charles E. Levy .182 Oanal street. . 38
    On the 19th March, 1894, the Oommon Council adopted Ordinance No. 8852 to the'following effect:

      “Resolved, That the Comptroller be and he is hereby directed to advertise in the official journal for a period of eight weeks petition of property holders for the paving of Lafayette street from St. Charles to Rampart streets with vitrified brick, and petition of property holders to have vitrified brick pavement laid on alley from Baronne to Dryades street.
    On the 13th July the Comptroller advertised this petition, accompanying the petition, as we understand, with the statement that if at the expiration of the publication a majority of the owners of real property fronting on said alley shall be memorialized by memorial-ists, addressed to the Oity Council, the work as prayed for would be ordered and proposals invited for the contract as provided.
    On the 26th of October, 1894, the Common Oouncil, by Ordinance 9872, directed the Comptroller to advertise for ten days for sealed proposals for the laying of the vitrified brick pavement in the alley extending from Baronne to Dryades streets, in the square above mentioned.
    In the record prepared as of date October 26, 1894, by the Oity Engineer, are what are headed as “ Specifications for the paving of the alley extending from Baronne street to Dryades street, in the square bounded by Oanal street and Tulane avenue, with vitrified brick.”

      Among ocher matters, are the following specifications: “ A gutter twelve inches wide will extend the whole length of the alley on the lower side and to be connected with the gutter on Baronne an 1 Dryades streets, in such manner as may be directed. This connection may be made with a proper size pipe by a brick culvert covered with iron. This culvert will be formed by setting a counter curb on the upper side of the gutter, which counter curb will be of North river blue stone not less than three and one-half inches thick and of sufficient depth to extend six inches below the top of gutter bottom. This curbing to be set to lines and levels to be given by the Oity Engineer.
    “The down-town side of the gutter will be formed by pargeting the sides of the foundations of the buildings to the height of the counter curb. The bottom of the gutter will be formed by first thoroughly solidifying the earth on the bottom and placing thereon five inches of concrete, on top of which will be placed a top finish one-half inch thick, thoroughly smoothed aud polished, and the whole work to be done to lines and levels to be given by the Oity Engineer, and in such manner as to best discharge the water into the gutter. In the construction of this gutter, the necessary openings will be made to drain the properties of the lower side, and pipes will extend across under the brick pavement to connect the drain with the properties on the upper side of the alley. All these openings and pipes discharging into this main gutter to be properly laid, and where they eo.nnect with the gutter to be made smooth and even.”
    The defendant Frawley bid upon the work under these specifications. . His bid was accepted, and a contract made with him. The work had, under the supervision of the Oity Engineer, gone well on toward completion, when it was stopped by the injunction sued out in this case.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question which presents itself is as to the character of the alley. The city contends it is a public alley, the plaintiffs that it is merely a private way.

At the time of the sales, in 1860, the square in which the lots sold were situated was surrounded on its four sides by public streets, with gutters running along the same, as part of the general drainage of the city.

The object of the'State, as declared in the Act No. 270, was not to dedicate any portion of the property to the public, but to sell the same. No authority was conferred upon the Governor other than to sell, and the General Assembly attempted to lay no restriction upon the executive as to the size of the lots to be sold, or their form. The Governor, had he thought proper, could, by making a subdivision other than be did, widening some of the lots, lengthenin : others, and striking out entirely some of the lots as they exist, have done away with the alley without possible complaint.from any quarter.

There was nothing in the situation of the properties calling for any action on behalf of the public; the general drainage and rights of way had already been provided for, as we have said. The public was not a party to the acts of sale, either expressly or by implication. There was nothing in the acts of sale evidencing any intention to create a stipulation in favor of the public. We are not obliged to look for the particular reason which induced the Governor to lay out the lots in the manner he did, to leave open this alley, and to make it common to the owners of all the lots abutting upon it, for' Art. 2013, C. C., says: that “the real obligation, created by condition, annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law;” but there are several reasons which would at once suggest themselves as being those which gave rise to the sales as made — reasons entirely disconnected from public considerations and confined to the private interests of the parties.

We are not authorized to broaden the scope of contracts beyond their terms, and make them carry with them effects not contemplated by the parties thereto. There is no reason why the clauses of the various acts of sale made by the Governor in 1850 should not be restricted to the persons immediately concerned in the purchases then made.

We are of opinion, from the language used in the deeds and their evident purpose, that only private rights inter partes were intended to be created and recognized. The vendor did not, in terms, convey the property of the alley to his different vendees, but for all practical purposes they had qualified property rights in it (Heirs of Delogny vs. Mercer, 43 An. 212), but rights in which no one other than themselves were concerned. We kno.w of no reasons why. immediately after the sales here made, these parties could not have all met together, and by unanimous consent and arrangements entirely done away with the alley, nor any reason why, by common consent, they could not have closed the entrance to and exit from the alley by gates. If they did not do the latter, it was, doubtless, because of Che inconveniences attendant upon opening and shutting them.

In Stevens vs. Nichols (Mass.) 29 N. E. 1151, the court said: “ The defendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it even though it were paved. They had a right to pave it for their own use, o" for the use of their customers (citing a uumber of authorities) . They were not obliged to put up a sign, notifying travelers, or the public, that the passage-way was not a public street.”

In Lake Shore & M. S. Ry. Co. vs. City of Cleveland (Com. Pl.), 1 Ohio, N. P. 1, it was said: “Where, in partition proceedings, a right of way to owners of the land allotted along the streets is marked on the maps attached, the right of way is limited to the owners, and did not constitute a dedication to the public, though the public have used, and city ordinances have been passed in reference to them, and the streets have been described in conveyances of the land recorded for years.”

In Child vs. Chappell, 9 N. Y. 246, Morse, J., said: “Where an owner of land lays it out in lots and streets upon a map, by which he sells and conveys lots so laid out, as between him and the purchasers of such lots the spaces so laid down upon the map are dedicated to public use; this, we understand to be the law, and in conformity to principles of natural justice. The mere act of selling by such a map binds the grantor to permit the land so laid down as streets, to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid down as streets. It is, perhaps, unnecessary to consider now whether such a grant between the grantor and the public would be a dedication. * * * The transaction, however, in the first instance, is strictly a private one, as it relates to the land. The right to use and have used by the public, the streets laid down upon the map, has become an appurtenance to the parcel of land granted, and the same right belongs to each of the parcels granted, upon the same terms. As between the original owner of the land and the several grantees of parcels thereof, these rights are fixed, but until the public has, in some way, become a party to the transaction, the whole arrangement is subject to be rescinded by the '.oint act of the original owner, and of all those who own and have the right to represent the land sold. The principle established is that an owner may make any lawful disposition of it which he deems most beneficial. He may found a city or village, or an agricultural or manufacturing community at his own free will, so far as the appropriation of his land may go to effect such purposes. He may adopt just such measures concerning his land as may, to his judgment; seem expedient. It would nowhere be doubted that a man owning a hundred acres of land through which there ran no highway would be at liberty to enclose it with a wall and to erect a fenced town. He might lay out streets throughout the entire parcel, and collect a phalanx of socialists having all the streets common and as among themselves public, and as to the world, besides, exclusive and private. In other words there might be impressed upon this mass of private property, private contract, rights in the strictest sense of the word analogous to the ordinary public rights of highway, and yet those rights confined to the owners and representatives of the land, forming the subject of the compact and liable to be ended by the mutual consent of all who had an interest in the subject.”

In Dill vs. Board, 20 Atlantic Rep. 743, the court, referring to a sale of lots by a plan or map on which a street is marked, said: “ By such purchases the grantees are regarded as purchasers by implied covenant of the right to the use of the street as a means of passage to and from the premises appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct and independent of the right of passage to be acquired by the public. The right to have the alley thus described forever preserved is a private right annexed as an appurtenance to the ownership of the land conveyed, entirely distinct from and in addition to the right of the owner as a citizen at large to use the street after it should become a public street by acceptance of the public authorities * * * The right was granted in connection with the conveyance of the lot, and for the convenience of the owner thereof, and the grant was to him, his heirs and assigns forever.”

We think that in the present case there was no intention to dedicate the alley to the public. The evidence showed that no one enters it unless he is obliged to, and'that its use is confined to those who have business with the owners. “A plain and positive intention to dedicate is an essential element of a dedication, and that intention must be shown by language or acts so clear as to exclude any other reasonable hypothesis, or, at least, to clearly convince the judicial mind ” (C. C. 753; City of Shreveport vs. Drouin, 41 An. 867; Railroad Co. vs. Carrollton, 3 An. 285; Torres vs. Falgoust, 37 An. 497) The city has never attempted to light the alley, has never placed a policeman upon it, or done any public municipal act whatever in reference to it, with the exception of the work now enjoined from being done. We do not think that the city occupied such a position relative to the alley, that had a personal injury to any one taken place therein in consequence of its bad.condition and want of repairs, the corporation could have been made responsible for the resulting damages. The party injured, if entitled to damages, would have had to look to the parties charged with the duty of keeping it in repair. Stevens vs. Nichols, 29 N. E. 1150 (Mass).

The alley in question does not border upon a public street (State vs. Lochte, 45 An. 1409; Holmes vs. Drew, 151 Mass. 578), but is in its entirety private.

The only claim urged by the city in support of its claim that the alley involved in this case is a public alley, not a private way, is that upon several occasions sanitary inspectors (officials under the Board of Health) have gone into the alley and cleaned it out with the assistance of the prisoners in the city jail. The officials in question acted upon their own responsibility, with orders from no official quarter, and though there might be no objection to be taken that in the interest of public health they should have done so on special occasions, instead of forcing (as they could have forced) the parties in interest to have dono so, such an act when done would not carry with it the far-reaching consequences claimed.

The city was not bound itself, as a part of its official duty, either to clean this alley or repair it. It or the Board of Health could have forced the parties in interest to have kept it in a cleanly condition, for the powers of the proper sanitary officials extend for some purposes to and within the private enclosed premises of owners, and also to that portion of the property which the owner thinks proper to leave outside of his enclosure. The Council could by ordinance force each owner to keep the portion of the alley directly in the rear or in front of his premises clean and' to remove therefrom dirt or filth upon it. See Commonwealth vs. Cutter, 29 N. E. 114 (Mass.)

The alley being held to be a private alley, in its entirety, and not bordering on any public street (Holmes vs. Drew, above cited), the next question is whether the council had the right through a contract made by itself to force the owners of the property abutting on it, at their own expense, to pave it, either acting on its own motion, or upon the application of one or more of those owners. The right to do so .is based upon Sec. 37 of Act No. 20 of 1882, which declares that the “ council may, in its discretion, provide tor the paving or ban-quetting of any street or portion thereof at the expense of the whole city, and may thereupon force and impose and collect of the front proprietors of lots fronting on such streets a specific local assessment in proportion to the frontage, not exceeding the increase in the value of the property, occasioned by the local improvement, and such local assessment shall have a first privilege superior to vendor’s privilege and all other privileges and mortgages.”

We do not think this alley falls under the operation of the statute as being a “street or,a portion thereof.” Face vs. The City of Ionia (Mich.), 51 N. W. 186. It is not a public place, but in its entirety a mere private way, appurtenant to the lots abutting on the alley. Buisson vs. McNeil, 9 An. 445; Rozier vs. Maginnis, 12 An. 109; Gottschalk vs. DeSantos, 12 An. 473; Cahill vs. Connelly, 14 An. 280; Thompson vs. Meyers, 34 An. 618.

The city claims that the plaintifis, DeGrilleau, however, are es-topped and concluded by the action of their agents, Messrs. A. & 0. Denis, in signing the application for the paving of the alley with vitrified brick, but it is obvious that even were those parties concluded their-action would bind neither the plaintiff, Mrs. Adele Beer, or the inter-venor, Miss Egan. Mrs. DeGrilleau and the Messrs. Grailhe could, by nothing they did, estop those abutting owners, and their opposition, when made, would, by reason of the fact that it would have as its effect to undo in its entirety, as being an indivisible act, all that had been done in the premises, indirectly of necessity enure to the benfit of all the owners.

The opposition made by the plaintiff and the intervenor, we may say, was not leveled so much against the paving of the alley as against the acts done by the city officials in connection with the paving.

Plaintiffs maintain that even were the city authorized to act as the forced legal agent of all the owners of. property abutting upon the alley in bring.ng about a paving thereof, they were without authority in doing so, to disturb and break up of its own motion the private rights of the abutting owners, inter se as to drainage and other servitudes; that these rights are vested rights, and the Common Council, under the guise of police administration, is powerless to impair them. They show that these private rights have, as between the parties, been fixed and settled for years; that none of the parties have asked for any change in respect to them; that the city does not predicate its action upon any right of grading the property or of forcing the owners to do so, but that the City Engineer, under an application to have an alley paved, has undertaken to alter the grade of the property, and in altering it increase, to the prejudice of the properties on the lower side of the alley, in favor of those on the upper side, the servitudes upon the same. That he has also greatly interfered with the alley, considered as a right of way, making the alley in its changed condition inconvenient and liable to lead to accidents, and impairing the value of their properties.

Without entering into details of testimony, we think the complaints of plaintiff and intervenor on this branch of the case well founded.

We think the City Engineer iu proceeding to have the alley paved was disturbing and breaking up, without authority and in an unjustifiable manner, the private rights of the owners, whose lots fronted on Canal street and abutted in the rear upon the alley. These rights are in the nature of property, and can not be thus taken from one person and transferred over to another. The alley is not a public alley, and neither the general drainage of the city nor public rights are involved in this litigation. The amendment asked for by appellants can not be granted. Frawley’s rights would be affected, and he is not an appellant. The legal consequences of our decree will be sufficient protection to appellees as against the city.

The judgment appealed from is hereby affirmed.


author: Nicholas, O. J.

text:
    No. 11,911.
    The State vs. Samuel Salter.
    Sections 78i and 785 of the .Revised Statutes declares that whoever shall commit the crime of wilful murder on conviction thereof shall suffer death. There shall be no crime known under the name of murder in the second degree, but on trial for murder the jury may find the person guilty of manslaughter. In the consideration of a homicide the Grand Jury is not forced to enter into the particulars of the killing and primarily charge manslaughter, but is authorized to charge murder under Sec. 1038 of the Revised Statutes, leaving the result of the charge to be determined by the facts elicited by the testimony.
    The request of accused to have the court charge the jury as 'to the logical character of the indictment found against him was properly overruled as a matter not to be submitted to it.
    If a party with intent to kill or murder a particular person illegally and feloniously shoots at him (his will being directed exclusively to that end), but he fails to-accomplish his purpose and unintentionally kills another person he has no reason to complain if under an indictment for murder he is found guilty of manslaughter, because he may not have had reason to expect that his shot, would strike a third person.
    The Supreme Court can not be asked to reverse the verdict of a jury, because the court below failed to charge the jury on the law of self-defence when it has nothing before it to show that under the evidence in the case such a charge would have been relevant and the court was not asked to charge on that subject.
    Oounsei who fails to ask the court to charge the jury on the subject of self-defence, because, in an unofficial conversation with the judge the latter had stated to him that the plea of self-defence admitted the killing, can not, after the trial, seek a reversal on the ground that he had been forced by this statement to waive his right of going before the jury on that issue. He should not have acquiesced in the matter, but have insisted upon his legal right to a special charge and availed himself by exception and bill of any error made by the court in modifying or qualifying his requested charge.
    The Supreme Court is not authorized, in criminal cases, to pass upon the issues involved on a. mere statement as to occurrences which took place on the trial when the statement was made after the occurrences took place and without exceptions having been taken and bills reserved, even though the District Judge-may sign the same.
    APPEAL from the Ninth Judicial District Court for the Parish of Sabine. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

      Scarborough & Carver for Defendant, Appellant.
    Argued and submitted November 23, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused (reasons assigned) February 10, 1896.
   The opinion of the court was delivered by

Nicholas, O. J.

The defendant, indicted for having wilfully,, feloniously and of his malice aforethought, killed and murdered one Mark Anthony, was tried, convicted of manslaughter and sentenced to eight years in the penitentiary. He appealed.

Defendant’s counsel in his brief says “ that the only matter presented to this court is that presented in bill of exception No. 3.”

The bill commences with the statement that “the charge of the court being in writing it was annexed to the bill as a part thereof, and the prisoner reserved his bill of exception to the said charge.” It then proceeds to say: “The accused excepts to the charge for the reason that the same did not contain the law of self-defence, which prisoner’s counsel was forced to waive under the statement of the court that, if requested to charge the law of self-defence, the court would be compelled to charge the jury ‘ that the plea of self-defence admitted the killing by the accused.’ ” The prisoner’s counsel was by the court shown the decision of the Supreme Court, in 36 An. 148, State vs. Watson, as being the authority which was binding on the lower courts and which the court was bound to follow. Prisoner’s counsel urged that that doctrine could not apply and should not be so charged in an accidental killing, where there was a dispute as to which of two different shots claimed to have been fired by two different persons firing at each other (had caused the killing).

Prisoner’s counsel had prepared special charge No. 16, which was shown to the court, which counsel had designed having the court give, but on being informed by the court that if the law of self-de-fence was asked, the court would be bound under said decision to charge “that the plea of self-defence, when set up by an accused, admits the killing.” Prisoner’s counsel being compelled to either have the law of self-defence given by the court as laid down in 36 An. 148, and special charge No. 15 refused, or have it omitted from the charge, 'was compelled to not request the charge, and so announced to the court; and in the argument of the case before the jury did not claim or discuss the law of self-defence.

The court’s statement relative to this matter was as follows:

“ The court took no action except to ask counsel whether he would urge the plea of self-defence, and on his answering ‘ yes,’ the judge remarked thatthe plea of self-defence admits the killing, and handed. counsel the case in the 36 An. 148. Counsel read it and made no reply, but in his argument complained that he was cut off from urging the. plea of self-defence because, if he urged it, the court would charge that the plea of self-defence admits the killing, and disclaimed the plea of self-defence on this ground, and urged only that defendant did not kill deceased; that the evidence did not show whether he or Tom Anthony killed him. The court then did not give the law of self-defence, as the charge shows.

“ Counsel submitted fifteen special charges: No. 9 was canceled; No. 15 was withdrawn; Nos. 8 and 14 were given; and the others refused. When the charge was finished, the court remarked to counsel that he had given Nos. 8 and 14 and refused the others, and counsel replied he would prepare the bill of exceptions. The court understood counsel to mean his bill of exceptions to the refusal of his remaining eleven special charges, and had no intimation that any bill of this kind was reserved until it was presented for signature. If counsel had wanted the law of self-defence given, without the statement that the plea of self-defence admits the killing, he should have asked for it, and, if not given, have excepted to its refusal.”

We find at the end of this statement of the court the following:

“To all of which the prisoner by counsel excepts and reserves this bill of exceptions, as well as the refusal of the court to give the special charges from 1 to 15, 8 and 14 excepted, which were given by the court as shown by the special charges and made part of the bill of exceptions with the written charge which was given.”

To this the court adds :

“ The special charges refused were not good law, and the law on the subject of the malice necessary to constitute murder was fully explained in the charge.”

In the brief filed on behalf of the defendant counsel say:

“The consideration of this bill might be further divided into two parts, which we will do, and discuss, first, the action of the court in not giving the special charge; second, the action of the court in not giving a correct charge in the written charge, all of which are annexed to and made part of the bill.

“The special charges are directed to presenting the objection to the mode of procedure, and this objection turns on the act of the District Attorney in charging one crime and having a conviction sustained on proof of another. To present the exact question, we suggest the entire question turns on whether in a case where an intention exists to do some specific act, and in attempting to do the specific act, an entirely different and distinct and unintended injury is inflicted on another person, can the prosecution make one lumping charge and join the intention to the unintended act and make one compound crime?’

“In this case the shot fired at Tom Antony did accidentally kill Mark Antony, a cousin of the party fired at.

“ The indictment charges that the shot was fired at Mark Antony and with murderous intent; the effort is to sustain it by proof that the malice did exist toward Tom Antony, and this malice can be proven and made to support an indictment for accidentally killing Mark Antony, a person toward whom no'intent to do injury is conceded to exist. The question is in such a case, can the two offences, the one attempted but not consummated, be lumped with the injury accidentally committed, for which there existed no intention, and under allegations such as in this case which give no intimation of such, be sustained?

In some States such can be done, but it is because in such States special statutes have been enacted as authorize such. No such has been passed in our State, and unless such a proceeding has the sanction of the common law, it is bad. So we should first determine what the common law rule is on the subject. In doing which we find where “A” shoots at “ B ” and unintentionally wounds “ C,” he must be separately indicted and prosecuted for the two separate offences. Wharton C. P. and P., Sec. 486.

“Where an intention exists to do a criminal act, and an unintended crime is committed, the unintended act borrows j^the criminality of the intended one. If, however, in the specific attempt to commit some specific crime, by accident some unintended jaet is committed, the proper course is to indict for the attempted act in one indictment, and for the unintended crime in another.” Wharton’s Criminal Law, Sec. 120, No. 2.

The indictment in this case charges that “Samuel Salter, of the parish of Sabine, on the 15bh day of January, in the year of our Lord one thousand eight hundred and ninety-five, at and in the parish, district and State aforesaid, did wilfully, feloniously, and of his malice aforethought, kill and murder one Mark Antony, in the peace of God and the State then and there being.”

There is in the indictment no allusion whatever to Tom Antony; it nowhere appears that the crime, with which the accused was charged, had any connection with Tom Antony; that the accused shot at him at all, either with intent to kill, or with intent to murder without malice or with malice. We know nothing of Tom Antony except in the recitals of defendant’s bill of exceptions. The circumstances under which Mark Antony was killed by Samuel Salter are not stated; they were left to be brought out by the evidence. We do not know what the testimony before the grand jury was. It reached the conclusion from that evidence that Salter had killed Mark Antony under circumstances such as, in its opinion, to warrant and justify it in charging that he had wilfully, feloniously, and of his malice aforethought, killed and murdered him. If such was the opinion of the grand jury it was authorized to present the identical bill which it did, which would stand or fall entirely or partially on the trial as thecharge was sustained, or not sustained in law and fact.

The grand jury was not forced to enter into the particulars of the killing and primarily charge manslaughter, but was authorized to charge murder, leaving the result of the charge to be determined by the facts elicited by the testimony. The fact that it should be made to appear on the trial that the crime, which should have been charged in the indictment, was manslaughter instead of wilful murder, would not warrant an accused in asking to have the verdict and sentence set aside because rendered under a heavier charge.

Our law says “that whoever shall commit the crime of wilful murder, on conviction thereof shall suffer . death” (Sec. 784), and that “there shall be no crime known under the name of murder in the second degree; but on trial for murder the jury may find the person guilty of manslaughter.” .Sec. 78S.

As a verdict of manslaughter is permissible under an indictment for murder, framed according to our statute, the State, under an indictment charging murder, is entitled to introduce any evidence which would be admissible under an indictment specifically charging manslaughter.

On the other hand, the accused, though charged with murder, is permitted to introduce any evidence going to show that he is guilty of neither that crime, manslaughter, nor any other crime of which he could be found guilty under the various verdicts which a jury is authorized to return under an indictment for murder.

In the present ease the jury returned a verdict of manslaughter. There is no claim by the accused that he was hampered in the introduction of his eivdence by the character of the indictment. He doe., not show how he has been prejudiced in any way by the form of the indictment, or how, through it, the State has “succeeded in charging one crime and having a conviction sustained on proof of another.”

The recitals of the indictment are sufficient to make a verdict of manslaughter responsive to them, and the form followed (which is a statutory form) was adopted precisely to meet the possibility and contingency of such a verdict.

Counsel has not discussed in his brief -the different special charges which the court refused to give to the jury. Though separately numbered, they seem to have been presented at one time as a single whole, and so rejected.

The bill of exceptions does not deal with these charges separately, as it should have done, in order to reach any particular special charge which was erroneously refused. As we ñnd several of these charges underscored in the transcript, we presume that it was to the refusal to give those particular charges that complaint is made.

These special charges were Nos. 2 and 12.

No. 2 is as follows:

“I charge you that where one act results in two separate injuries,, as the killing of two persons, that the party must be separately indicted for the commission of the two separate offences.”

No. 12. “Where there is a general intent to do evil, of which evil the wrong complained of may be considered as forming a part and being reasonably covered by such general evil intent, the party may be convicted of any particular wrong ou such general malice, as where a party deliberately fires into a crowd, not knowing any person in the crowd, he may be convicted of the killing of any person in the crowd, whether or not there existed any specific intention to kill that particular person. If, however, you believe from the evidence that the accused’s will was directed exclusively to a particular .end in which he failed, and that the act done by him was unintended in any sense, then the more logical course is to indict him for the attempt to do the unperformed act and for negligence in the performed act.”

We are not informed by the record whether the shooting by Salter resulted in two separate injuries, or the killing of two persons, and, if so, whether or not different indictments have been found. We know simply that he is charged with having killed Mark Anthony wilfully, feloniously and of his malice aforethought. Whether he should have been “indicted” for shooting at Thomas Anthony, either with the intent to kill or with intent to murder, is a fact which has no legal bearing in this case, and the court properly refused to give any charge on that subject.

In the twelfth special charge, which accused requested should be given, the court was asked to charge the jury in respect to the logical character of the indictment found by the grand jury, a matter not submitted to the trial jury at all.

If there were legal objections to the indictment, they should have been urged in a different manner and form. Contained in the body of this charge, however, is announced a proposition, which the court declares was not law. Counsel’s proposition substantially was that if Salter in illegally and feloniously shooting at Thomas Anthony with the intent to kill or murder him, failed to accomplish his purpose, but did shoot and kill Mark Anthony unintentionally, his will having been directed exclusively to the particular end he had in view, of killing or murdering Thomas Anthony, that the only crime for which he could be indicted, so far as Mark Anthony was concerned, was for having in shooting at Thomas Anthony, with intent to kill or murder him, have done so, so negligently as to shoot and kill Mark Anthony accidentally.

Such a proposition as that is totally untenable.

If the killing in this case was done under the circumstances which this charge assumes, we think the defendant has no reason to complain if under an indictment framed as the present one was he was found guilty of manslaughter. The fact that the accused may not have reason to expect that his shot would strike a third person would not make any difference in the legal situation.

Accused complains that the court did not instruct the jury as to the law of self-defence. We know nothing of the evidence in the case and can not tell whether a charge on that subject would have been relevant or not under the evidence. The accused did not ask the court to charge on that subject; the court was not placed in a position to refuse, but on the contrary, it appears by the bill of exception that a special charge in reference to that point, which the accused had prepared, was withdrawn by him. Oounsel says it was not withdrawn voluntarily; that he was compelled to withdraw it in view of the position of the court announced to him “that if an instruction on the law of self-defence were asked it would be forced also to charge that the plea of self-defence was an admission of the killing.” Oounsel in answer to a question from the bench on the argument as to whether the conversation between the judge and himself relatively to the effect of setting up self-defence upon the fact of the killing was extra-judicial or announced in open court, stated that the conversation was a private conversation between them. Oounsel should not have acquiesced in the correctness of the judge’s position, but should have put its correctness to the test and forced a ruling from the court which, if adver e to what he conceived to be the law, could be brought up to this court for review by bill of exception. The complaint which he makes is not in such a form as to enable us to reach it.

The judgment appealed from is affirmed.

On Application for Rehearing.

Oounsel for defendant has presented on his behalf a very earnest brief which has received our most serious consideration. He feelingly comments on what he declares to have been a most serious wrong to his client committed by the District Judge in informing him that were he requested to charge the jury upon the law of self-defence he would be compelled to charge the jury that the plea of self- defence admitted the killing. He states that “ by reason of this announcement he was forced to desist from requesting the judge to charge on the law of self-defence, as he had intended to do, having prepared a special charge on that subject which he had designed to have asked given; that he was obliged to do so inasmuch as he had been forewarned or warned that a charge on that subject would be supplemented by a declaration from the judge that such a plea admitted the killing, and he was not willing to admit the killing, as he, on the contrary, denied it. He says he exhibited to the judge the special charge he had prepared on that subject and informed him that he would be compelled to not request the same for the reason stated. He says he did not for the same reason claim or discuss the law of self-defence.

The District Judge in his statement of facts, appended to the bill, says he showed counsel the opinion in the case of State vs. Watson, 36 An. 148, and counsel made no reply, but in his argument to the jury complained that he was cut off from urging the plea of self-defence, because if he did so the court would charge that that plea admitted the killing, and on this ground he disclaimed the plea of self-defence and urged only that the defendant did not kill the deceased. That as the charge itself would show, the court did not charge on the law of self-defence.

That counsel submitted fifteen special charges: No. 9 was canceled, No. 15 (the special charge on the subject of self-defence) was withdrawn, Nos. 8 and 14 were given and the others refused. That when the charge was finished the court remarked to counsel that it. had given special charges Nos. 8 and 14 and refused the others, and counsel replied he would prepare the bill of exceptions; that the court understood counsel to mean his bill cf exceptions to the refusal of. his remaining eleven special charges and had no intimation that any bill of this kind was reserved until it was presented for signature. The court further said that if counsel had wanted the law of self-defence given without the statement that the plea of self-defence admits the killing, he should have asked for it, and, if not given, have excepted to its refusal. The court says it took no action except to ask the counsel whether he would urge the plea of self-de-fence, and on his answering “ yes,’' the court remarked that the plea of self-defence admits the killing, and handed counsel the case in 36 An. 148.

A close examination of the statement of facts on which defendant relies, and which has been designated by him and also by the District Court and by ourselves as a “ bill of exception,” is only partially such if at all. Counsel declares that he reserved a bill of exceptions; the court says he did not, and that the court had no intimation of such a bill until it was presented for signature. When it was presented for signature does not appear.

In an issue between the court and counsel, whether a bill of exception was reserved or not, and, if reserved, what the exception covered, we have under our unvarying jurisprudence no alternative but to take the statement of the court.

Looking at the statement of facts ” relative to the occurrences touching the conversation between counsel and thé judge, we find counsel’s statement to be the charge being in writing, it was annexed to the bill as part thereof, and the prisoner reserved his bill of exception to the said charge.” “The accused excepts to the charge for the reason that the same did not contain the law of self-defence.”

What we have stated above constitutes really what counsel claims to have been his exception, the balance of the' document being a recital as to certain circumstances connected with the course pursued by the counsel and the court.

We think that the counsel’s statement that the charge being in writing, the prisoner reserved his bill to said charge, shows that if any exception was taken it was only after the charge was read, and that the objection to the charge was, as delivered, it failed to contain any reference to the law of self-defence. There is no claim made that the court had been asked to charge on that subject and refused to do so; on the contrary, it is expressly stated that a requested charge on the subject of self-defence was waived. If it was waived as a matter of course there could be no exception taken to its not being included in the charge, but counsel says he was improperly forced to waive it. If he was improperly forced to waive it, then such improper forcing him to a waiver should have been itself made the subject of exception, and a bill reserved, but no objection or complaint of that kind was taken. We find no complaint on that score, except, as is inferentially to be drawn frpm the recitals in regard to the real exception.

Counsel acquiesced at the time in the court’s action, instead of objecting to it then, as he should. 'Counsel, in his recitals of fact, says the court heard him tell the jury that he had been forced to not discuss the question of self-defence, because the court had stated to him that if he did so it would inform the jury that the plea of self-defence would admit the killing; saw him abstain from saying anything on that subject to the jury, and said not a word in disclaimer of that being the case and such being the law; that the situation, therefore, was substantially as if the judge had actually given a charge to that effect to the jury, but, if any such impression was conveyed to the jury, counsel must bear in mind that it was the result of his own statement to the jury as to the court’s view on that point — the court itself would certainly have said nothing at all on the subject if not called on to do so. We may be perfectly willing to agree with counsel that a District Judge should never permit himself to hold a conversation out of court with counsel in a case in reference to his proposed action therein, or make any suggestion to him in respect to it, and also to fully agree with him that, if counsel should refer to such extra - judicial declarations and declare to the jury that they were controlling him in his line of defence, that the . court should then and there check the counsel and force him to stand upon his own conception of his legal rights, and yet we would be powerless to grant him any relief, unless these matters were brought to us under timely objections brought before us in strict legal form. Grant that the District Judge was silent when he should have stopped counsel in his statement to the jury, how can we notice this with a view of taking action upon it without some objection and exception was taken to his course. There is no bill of exception before us covering this point even now. Counsel says he was compelled by the judge to waive his legal right of discussing his client’s case from the standpoint of self-defence and of having a charge on that subject, but it is precisely in respect to this very matter that the weakness of the case is to be found. He was not compelled to pursue the course he did. When a person has a legal right, it is his privilege and his duty to insist upon its recognition and enforcement, and should this be refused, he should except and reserve a bill. He can not by reason of anything the judge had told him (unless he excepted and reserved a bill to this very statement) refrain from claiming his legal rights, and subsequently on a mere statement of facts (even though agreed by the judge as correct) complain of the inaction or nón-action of the judge.

We do not think that the instrument called a bill of exception is in reality such, except in so far as it excepts to the written charge for the reason that it failed to refer to the law of self-defence. Viewed as a bill of exceptions in reference to that matter, we do not think the exception well taken, because the judge was not asked to charge on that subject and did not refuse. Counsel says on the contrary such a special charge was waived.

We are not authorized in criminal cases to pass upon the issues involved, on ah agreed statement of facts ” as to occurrences which took place on the trial, made out after the occurrence had occurred and without exceptions being taken and a bill of exception reserved.

The ease is before us in such shape as to make it impossible for us to grant relief, however much we might desire to do so, without breaking down rules of practice. Hard eases have been called the quicksands of the law. They make bad law.

We are constrained to refuse a rehearing.


author: Breaux, J.

text:
    No. 11,971.
    M. A. Cockerham et al. vs. S. B. Perot.
    If tlie principal undertakes to makes the act his own, the ratification should be timely and established beyond question as against the other eontraetingparty.
    The party to a contract, by delaying to pay the price and finally by acquiescing in the release of the vendor, is precluded at a date subsequent from claiming the property.
    If considered as an agent, as averred, and that the contract involves a principal other than the one mentioned on the face of the contract, it is not evident that the agent has exceeded his authority.
    Having objected to the testimony on the ground that it was not admissible under the plea of general denial, the plaintiff waived the objection by obtaining time to rebut the testimony admitted.
    PPEAL from the Tenth Judicial District Court for the Parish of Natchitoches. Andrews, J.

      Egan & Egan and Scarborough & Carver for Plaintiffs, Appellants.

      Jack, Tucker & Fleming for Defendant, Appellee.
    Argued and submitted December 20, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

Breaux, J.

This action was instituted to recover the sum of twenty-two hundred dollars damages for the alleged violation of a contract by the defendant in having failed to deliver three hundred tons of cotton seed, and to recover an additional sum of five hundred and fifteen dollars, the asserted value of five thousand one hundred and fifty cotton seed sacks, plaintiffs claim to have delivered to the defendant.

The plaintiffs are the Independent Oil Company and M. A. Oock-erham. The contract was made, it is alleged, by the co-plaintiff, acting for the former, the company, as agent; it is signed in his individual name by inadvertence, it is asserted.

The defendant is a merchant and was the owner of cotton seed, and sold to plaintiff three hundred tons of his seed at four dollars per ton, plus one dollar per ton for storage in appearance, but in reality part of the price, thus concealed to serve the buyer’s purpose.

The plaintiff company alleges that its agent called upon the defendant in the town of Oampte, and demanded delivery of the seed, at the same time offered to pay for it at contract price, with an additional one dollar per ton for storage, as called for by the contract.

That the defendant refused to receive the amount. This was some time in June, some two months after the date of the contract.

The defendant pleads a general denial, and specially avers that he signed the document declared upon with A. Oockerham personally and not as agent. He avers that at the date of the contract he produced a letter purporting to have been written and signed by the Independent Oil Company, authorizing him to buy his cotton seed, with that of others named, at five dollars per ton delivered on the banks of the Red River; that being one dollar in excess of the price fixed between the plaintiff company and other companies.

The purpose, it is further alleged, was to make the contract in such form that the violation of agreement with the other companies could not be detected by them, and that this accounts for the signature of Oockerham personally, and the one dollar extra charged in the way of storage, so as to make one dollar per ton.

The respondent also avers, substantially, that he believed him a solvent contracting party at the time, but subsequently was informed of his insolvency.

He also alleges with particularity that he was not the agent of the plaintiff company, and had a number of witnesses examined in support of his defence.

The defendant propounded interrogatories on facts and articles to plaintiffs, touching all the facts of the case. The answer of these witnesses controverted the facts the defendant sought to prove by the interrogatories.

The defendant moved the court to traverse the answers on facts and articles.

.The facts are that cotton seed had risen in value from the 6th of April, the date of the contract, to the 18th of June, 1895, when the tender of the price and delivery of the seed demanded, was made.

In April the plaintiff, Oockerham, appeared before a committee of persons interested in buying cotton seed, for the purpose of discussing price of that product on Red river. Something in the meeting was said about cutting prices with reference to the contract here involved. Subsequently the buyer met the defendant on the streets and asked him why he had divulged the business secret, an accusation at the time denied by the latter. The defendant says that he ■asked him the explanation he had made, and that his answer was that he had said to the agents of the different mills thus assembled that he had bought the seed for his own account. He then repaired in •company with the buyer to the office of the Independent Oil Mill and there met the president.

There is direct and irreconcilable conflict as to what was said. The president testifies that he said to the defendant that he would maintain and ratify the contract.” The defendant is quite emphatic that no such a declaration was made to him.

Another point of conflict arose in regard to an asserted interview between the buyer, Oockerham, with the defendant in the presence of the two clerks of the latter. The contract was treated as rescinded l< off ” the latter said, while the buyer not only denies that there ever was any such rescission, but asserts that no such interview was ever held.

These witnesses also testify that at a date subsequent the buyer, in the presence of another agent of the oil company, offered to buy the seed in question at an advance of one dollar a ton.

This is also denied by the buyer. The record does not disclose that he sought to corroborate his testimony by calling upon the other agent present to testify as a witness.

The defendant testifies that he was not aware of the insolvency of . the buyer on the day that he sold the seed. The buyer says it was a well known fact to him.

It is also shown that two of his drafts were not honored by the plaintiff company, a fact which' came to the defendant’s knowledge a short time after the sale.

There is also divergence in the testimony in regard to the terms of payment. The witnesses for the defendant testify that the seed was to be received and paid for in a few days after the sale. The defendant sought to justify the delay by testifying that the Red river was low and the navigation thereby impossible, while witnesses for the defendant testify quite to the contrary.

There were seed sacks received; a number not returned to plaintiff. The evidence of the condition under which they were delivered was as much involved in contradiction as were the facts subsequent to the written contract. The proof admitted in support of the reconventionaL demand for value of the sacks returned is the last question propounded for our decision.

The judgment of the District Court was for the plaintiff for the sum of one hundred and seventeen dollars and fifty cents, with interest, price of sacks received and used by the defendant, and it rejected the remainder of plaintiff’s demand.

Prom the judgment plaintiff prosecutes this appeal.

THE ATTORNEY SHOULD ACT IN THE NAME OP HIS PRINCIPAL.

To recover the difference between the market price of the seed at the time suit was brought, and the purchase price as agreed upon in the written contract, in other words the profits contemplated, the plaintiff must clearly show that the contract was entered into between the defendant and the oil company, and that the latter, as plaintiff, is really entitled to the benefit claimed. It is in evidence that prior to contracting the buyer read a letter of instruction he had received from the company. There was nothing very assuring in the expressions, although it did authorize the holder to buy seed at a price partly in guise of charges for warehousing the seed. He was advised to be very chary how he wrote anything and to provide a special obligation in regard to the additional dollar of the price.

Prom the seller, we infer, was obtained the promise of secrecy about the price, a promise of no great importance, save that it had a tendency to take the transaction out of the ordinary line of business.

This was followed by the contract in which the buyer personally obligated himself to pay the price stated. The time of payment or of the delivery of the seed was not inserted in the contract.

The alleged inadvertence in signing the contract of sale is quite unusual with a careful man of business. The weight of the testimony does not support the theory that the Independent Oil Company was the contractor.

It has also been held that whatever authority the signer may have to bind another, if he does not sign as agent or attorney, he binds himself.

“And in the case put, by the very form of the contract, the agent represents himself to be the seller and thereby, as between himself and the buyer, he binds himself by that representation as a contracting party.” Story on Agency (4th Ed.), Sec. 270.

It can not be denied, it is true, that the rigid doctrine of the common law has yielded to the exigencies of mercantile transactions and that now much is left to proof aliunde to bind the principal.

None the less the principal appoints the attorney to be in his place and in consequence the attorney should act in the name of him who gives the authority. (16., See. 148) ; otherwise, as a matter of evidence there is presumption of considerable weight against the position that he represented the alleged principal. Considered as the contract of M. A. Oockerham, he is met by the objection that he was insolvent, a fact not known by the seller at the date of the contract he testifies, but which afterward came to his knowledge. The buyer admits his insolvency and says that the fact was known to his vendor — as evidence it remains in that condition, without further evidence, between this plaintiff and the defendant.

Further it is urged that two of his drafts, on his co-plaintiff, drawn about the date of the contract here, were not honored. It was entirely owing to a misunderstanding, the plaintiff testifies. It is not shown that the defendant was in any manner aware of the alleged mistake. The record further discloses that the defendant and two witnesses testified that this plaintiff some time after the sale acquiesced in a cancellation of the sale. This is denied by this plaintiff alone. The District Judge, who presumably is acquainted with these witnesses, heard them testify, decided that the weight of the testimony was with the defendant. We have not discovered that he has erred. ' At a time subsequent these witnesses for the defence testified that this plaintiff, in the presence of an agent of the oil company, offered at an advanced price to buy the identical seed he claimed to have bought. The record does not show that the plaintiff sought to corroborate his testimony in denial by the evidence of his alleged co- agent.

ACQUIESCENCE OF AGENT.

Bub it is argued that the co - plaintiff was only the agent.

If this be granted, may it not be suggested that an agent with all the power claimed by the plaintiff for this agent, even the power of binding his principal without naming him in a contract, or without the most remote reference to his interest, may acquiesce in the rescission of a contract or abandon all interest therein.

PROPERTY USED.

In regard to the item of one hundred and seventeen dollars and fifty cents. The defendant was properly charged with the value of the sacks he had used, sustained as it is by a preponderance of evidence. Having been used and not returned, less could not be required of the defendant than the payment of their value.' One who makes use of property, although it may be with the consent of the owner, is bound for its return or for what it is worth.

RECONVENTIONAL DEMAND.

This brings us to the last issue of the case. The plaintiff claimed five hundred and fifteen dollars for some five thousand seed sacks.

The defence set up in the answer against this demand was a general denial.

Ordinarily every means of defence, such as payment, release and novation, showing the extinction of an obligation, must be specially pleaded, and can not be shown under the general issue.

But the defendant was acquiescent after the ruling had been made. The trial judge, at his instance, allowed him to get testimony to disprove the return of the sacks, of which the defendant availed himself. This was virtually an abandonment of the objection.

It is therefore ordered, adjudged and decreed that the judgment be affirmed.


author: Wateins, J.

text:
    No. 11,819.
    Widow John R. Daly vs. H. Haller Manufacturing Company, Limited.
    A boy oí fourteen years, being employed in a tinware factory to operate a small foot machine used for the purpose of punching eyes in small tin cans that were being manufactured by machinery, who voluntarily leaves his place of business, and goes away to another part of the establishment for the purpose of adjusting a belt connecting one of the machines of the factory with the line of the main shaft, ana while thus employed receives serious and fatal injuries of which he dies, his parents can not recover damages of the corporation.
    PPEAL from the Civil District Court for the Parish of Orleans. *- Monroe, J.

      Frank McGloin for Plaintiff, Appellant.

      Bernard McGloskey and Branch K. Miller for Defendant, Appellee.
    Argued and submitted November 6, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

Wateins, J.

Plaintiff claims fifteen thousand dollars damages of defendant for the loss of the life of her minor son, Joseph Daly, while engaged in its manufacturing establishment in the city of New Orleans, charging that same was occasioned through the gross neglect and carelessness of its agents, servants and employees.

The averment of her petition substantially is, that on the 6th of Ahgust, 1898, her son was directed by the defendant’s foreman to adjust a belt connecting one of the machines of its tinware factory with the line of the main shaft; that instead of stopping the revolution of the shaft until the belt was adjusted the same was continued at a high rate of speed. That defendant furnished no safe means of reaching a large wheel on the main shaft, on which the belt was to be adjusted, by reason of which the said Joseph Daly was obliged to reach the same by means of a ladder.

That while attempting to place the belt as instructed he was caught by the same, whilst it was rapidly revolving, dragged from his position on the ladder and carried around by the wheel in its revolutions, his feet and other portions of his body striking against the ceiling, shaft and wheel.

The plaintiff further alleges that defendant was without right to impose upon her son a dangerous duty of the character described, and was further at fault in not furnishing free access to the wall and a proper standing place from which to catch the belt and throw it on the wheel or pulley.

The answer is a general denial, coupledwith a plea of contributory negligence on the part of the boy.

With regard to the manner in which the accident occurred, and the result, proof in the recerd substantially shows the following facts, viz.:

On the 16th of August, 1893, plaintiff’s son, of fourteen years of age, was engaged as an employee in the tineware factory of defendant, at Nos. 119 and 121 Magazine street, in the city of New Orleans. And the boy, while thus employed, having undertaken to adjust a belt connecting one of defendant’s machines with the line shaft upon the wall, he was caught by the belt and dragged from his footing, and carried with the rapidly revolving pulley overhead.

When, soon afterward, the machinery was brought to a stop, the boy was taken out in a frightfully mangled and disabled condition.

The physician who was summoned to attend the wounded boy makes the following statement, and diagnosis of his case, viz.:

“ When I saw the boy, he was suffering much from the leg, and the depression of the nervous system, caused by his injuries, and he had a fracture of the right thigh and had fractured some of the ribs, and also a fracture of the left arm; and I presume there was some internal injury that caused this depression, but never found out what it was. And he died in the course of about sixteen hours: That is about the condition I found him in. And he never did arouse, but continued growing weaker until he died.

“ Q,. How many places did you find his leg broken in?

“ A. His leg was broken in two places.

“ Q. Two different places ?

“ A. Yes, sir.

“ Q. How. many places was his arm broken in? ■

“ A. Only one, right in the elbow-joint — into the joint.

“ Q,. How many ribs did you find stove?

“ A. About three.

Plaintiff’s brief, p. 2.

The boy suffered very greatly from these injuries for a period of sixteen hours and died.

That he was susceptible of suffering pain is shown by the fact that he remained perfectly conscious to the lase moment.

In addition there is positive proof, by the testimony of the afflicted mother, that his pain and sufferings were very great.

On this state of facts plaintiff’s counsel well says:

“ If this lamentable catastrophe was due to the negligence of the defendant company, and was without contributory negligence on the part of the injured boy, there should be judgment in favor of the plaintiff.”

He then formulates the three following propositions, upon which he founds the charge of negligence, viz.:

“1. It is declared that the defendant did not furnish appliances safe for the service, during the performance of which this boy was hurt.

‘‘ 2. That this boy was commanded, directly or by implication, to perform this perilous service.

“8. That, employing inexperienced and thoughtless boys about machinery of a dangerous character, it was the duty of the defendant, or its agents, to warn such employees of the perils confronting them, which was not done.”

The case was tried by a jury, and from a verdict in favor of the defendant the plaintiff has appealed, after having made an unavailing effort, in the lower court, to obtain a new trial.

In this court the contention of defendant’s counsel chiefly is, that notwithstanding the plaintiff’s son was employed in defendant’s factory at the time the accident happened, yet his employment was confined to a small foot machine, which was used for the purpose of punching “eyes” in tin-cans, which the defendant manufactured; and that this occupation was entirely free from danger — its operation being simple, and easily conducted.

That on the occasion on which young Daly received the injuries described, he left the foot-machine and had gone to another part of the room; where, climbing up a ladder which was leaning against the wall, he attempted to adjust a belt, or pulley — same being no part of his duty, or employment, and which he had been neither ordered or instructed by any one on behalf of the defendant to do.

That in thus attempting to adjust the belt, he was away from the place at which he should have been, and where his duty required him to have been.

The superintendent, as a witness for the defendant, says there was another boy who was employed to do that work on the machine where the plaintiff’s boy got hurt. That he gave instructions to the foreman in the shop, and that his instructions to him were “ not to-let any of the boys have anything to do with the belt.” That the distance between the place where Daly’s regular work was and that where he was hurt was about thirty feet.

That in order to go from the place where his business was to the place where he was hurt he was compelled to climb a ladder; and the ladder had first to be placed in position.

In the course of the witness Wolf’s (the foreman) examination, the following occurred, viz.:

Q. Did you give any instructions to any of the employees on that-floor of the factory what to do?

“A. About putting the belting upon the pulleys, I did. I told them to notify me.

“ Q. To whom did you give that direction?

“A. To all of the boys.

“ Q. Did you give it to Daly?

“A. -Yes, sir.

“Q. Your instruction to Daly was to do what?

“A. To let me know when the belt fell off, so that it could be put on.

“ Q,. Was the order to do anything more than simply to notify you when any belt was required to be put back?

“A. No, sir; he was to notify me.

“Q. On your being notified that a belt was required to be adjusted, what would you do?

“A. I would have my assistants to put it on under my directions?

“Q. Who generally performed (this duty) uuder your direction?

“A. Harry Lew, for the small belts, and Jake Eiley for the large belts.

“ Q. To your knowledge, did Daly ever perform any such service?

“A. No, sir.

“ Q,. What kind of work was it that Daly really was employed to do?

“A. To put ears in the buckets, on the foot press.”

Per contra, the statement of Harry Lew, the boy to whom the superintendent refers, is, that to adjust the bands spoken of, two persons were required; one person could not adjust it.

In the course oLhis examination by the plaintiff, as her witness, the following occurred, viz.:

“Q. After you were on the shaft, what did you do? You had to stand on the rung of the ladder to reach out and put the belt on?

“A. Yes, sir.

“ Q. Did you ever do that?

A. Yes, sir.

“ Q,. How often?

A. A couple of times.

“ Q,. You say the whole time you were there; how often did you put it up!

“ A. I could’t say. I did it a great many times.

“ Q. Did you do it habitually — did you do it as a rule?

“A. Whenever the belt had to be put on, I had to put it on. (Our italics.)

“ Q,. Who was the. other one that you had to help you?

“ A. Daly used to put it on, too.

“ Q. Who else?

A. The foreman.

“ Q. Those are the only ones who used to put it ón — either the foreman or Daly?

A. Yes, sir.

“ Q. Who told you to put the belt on?

“ A. The foreman told me to put it on.

Q. You mean by the foreman, Mr. Wolf?

“A. Yes, sir.”

But on cross-examination this witness, who was an eye-witness to the accident, says in course of his answers :

“ Q,. Who told (Daly) to do this?

“A. To put on the belt?

•“ Q. Yes, sir..

“A. I did not hear any one tell him to put on that belt.^_ (Our italics.)

“ Q. He did it on his own volition?

A. Yes, sir; I never heard any one tell him to put on that belt. (Our italics.)

Q,. Did you ever have any instructions from the foreman or the assistant foreman to put on that belt?

“ A. About telling me to put it on?

Q,. About your putting it on.

“ A. He told me to put it on. ■ The foreman used to tell me to put it on.” (Our italics.)

There are one or two others of plaintiff’s witnesses who testify that they frequently saw young Daly engaged in adjusting the belt. Yet, on the main proposition, that the boy was, by his employment; charged with that duty, or that he performed that service at the instance, under the direction, or with the knowledge of defendant’s agents, servants, or employees, there is no contradiction of the pos, itive testimony of the foreman and superintendent.-

And there is where plaintiff’s case fails.

It is perfectly clear, from the evidence, that plaintiffs son was not directed by defendant’s foreman to adjust the connecting belt the ■witnesses described as causing the accident; and it is equally clear that neither of defendant’s servants, agents or employees ever imposed upon him the performance of that dangerous duty. Yet, it is in proof that he did it sometimes, voluntarily; though this was unknown to and not sanctioned by the defendant’s superintendent or foreman.

Our conclusion is that a case for damages is not made out.

Judgment affirmed.


author: McEneRY, J.

text:
    No. 11,932.
    State of Louisiana vs. Evariste Belaire Fontenot.
    The ruling of the trial judge in' allowing certain questions to be answered which are objected to as leading will not be disturbed, unless it is shown that under the circumstances under which they were asked they were leading.
    A witness, who is asked a single question, niRybe, on cross-examination, asked all such questions which are legitimately calculated to test his memory, accuracy and veracity, with reference to the single fact sworn to.
    The recommendation of the jury who tried the case for a new trial is no legal reason why it should be granted.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, District Attorney, for Plaintiff, Appellee.

      John JV. Ogden, for Defendant, Appellant.

      Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

McEneRY, J.

The defendant was indicted for murder, and on his trial convicted of manslaughter and sentenced to two years at hard labor. .

.In the record there is a motion to quash the indictment. It does not appear to have been passed upon in the lower court. No mention is made of it in defendant's brief, and we presume it was abandoned.

Several rulings of the trial judge, on the introduction of evidence, were objected to and were incorporated in one bill by defendant. The District Attorney asked one of the witnesses the following questions: “Did you see the end of the blade?” “Is that the blade that was pulled out?” “ Did the blade break off when the blow was struck?” “Did you hear any noise when the blow was struck?” “Was there any part of the blade projecting from the head, and if so how much?” “ Was it easy or hard to pull out the knife?”

The questions were objected to as being leading and suggesting the answer.

In his statement to the bill, the trial judge says it was necessary to answer such questions in order to arrive at the facts, the witness being asked such questions in order to be made to understand the matter inquired into. H.e further states that the defendant had admitted the killing by means of a knife blade being driven in the head of the deceased, stating, however, that he did so in self-defence.

We presume from the judge’s statement that there was evidence as to the knife blade having been driven into the head of the deceased. It does not appear whether the witness on the stand had first made the statement, but the inference is, that he had testified to the fact, and these questions were to elicit mere matters of detail in reference thereto, and were essential, according to the judge’s statement, to arrive at the facts. We see no objection to the questions. They were not leading, so as to suggest a fact to be established the first time, but of details of the inflicting of the wound, which had been proven. In such a case we find no objection to questions which do not suggest an answer to a material fact, but are asked in the way of explaining a fact not disputed, so as to arrive at a more correct understanding of the same. It would be in such a case carrying the well defined rule of excluding leading questions to an unreasonable degree. Under certain conditions the trial judge may permit leading questions to be put, and the ruling of the judge may have been under proper conditions. . On this point we are not informed; 1 Greenleaf, Ex. Par. 434; 1 Starkie, 100.

It is difficult sometimes to determine what are and what are not leading questions. We do not think the questions propounded'are leading questions. They can be answered directly with an affirmative or negative reply.

A witness was asked by the defendant one question — whether he had seen a brass knuckle in the hands of the deceased. It is alleged in the bill, that on cross-examination the prosecution was permitted to interrogate the witness on all the facts bearing on the case, but no particu'ar questions are specified. The questions were permitted to be answered, the trial judge averring as a reason therefor “that the question referred to the time of the conflict between defendant and deceased. The litigated fact being whether the deceased at the tifiie of and during the conflict was armed with a dangerous weapon, a brass knuckle. It was competent for the State by cross-examination to test the power of observation or of memory of the witness as to other things occurring at that particular time, or immediately before or after.”

As stated, we are informed as to the line of interrogation by the bill, and we are therefore to conclude from the judge’s statement, that the cross-examination was limited to the test of the witness’ accuracy of statement.

In the motion for a new trial it is urged that the jury stated that they did not want to hear argument, and the defendant’s counsel construed this to mean that the jury were satisfied of the innocence of the accused, and that as a consequence, counsel did not argue the case. That he was deceived by the request of the jury; otherwise he would have argued the case. This is certainly no ground for a new trial. The defendant must be bound by the conduct of his counsel, and if he believed matters were favorable to him.from expressions of the jury, and was deceived thereby, it was his voluntary act in accepting such expressions, and no relief can be afforded the defendant. As an additional reason it is urged that six jurors who tried the case signed the following statement: “We, the undersigned jurors, having rendered a verdict in the above case, and knowing that we are liable to err as any one else might do, hereby agree that the accused may be granted a new trial.” Nothing that the jury may say or do after the verdict is rendered legally can influence a new trial. The judge’s statement is of more force, and he distinctly announces that the verdict was correct.

Judgment affirmed.