text:
    No. 3262
    Second Circuit
    SHREVEPORT LONG LEAF LUMBER CO., INC., v. SPURLOCK
    (November 8, 1928. Opinion and Decree.)
    Cook & Cook, of Shreveport, attorneys for Shreveport Long Leaf Lumber Company, Inc., plaintiff, appellant.
    Galloway and Johnston, of Shreveport, attorneys for Elliot Bros. Electric Co. intervenor, appellee.
    B. H. Lichtenstein, of Shreveport, attorney for F. L. Rosenblath, intervenor, appellee.
    Crain, Jackson and Johnston, of Shreveport, attorneys for Simmons Building Material Co., intervenor, appellee.
   REYNOLDS, J.

This is a contest between Shreveport Long Leaf Lumber Company, Inc., as mortgagee, and Elliott Bros. Electric Co., F. L. Rosenblath, and Simmons Building Material Co., as lienors, for priority in the distribution of the proceeds of sale of certain immovable property belonging to their common debtor, Frank Spurlock, and subject to their mortgages and. privileges.

Frank Spurlock owne<J a piece of ground situated in the city of Shreveport, Louisiana, arid, on October 4, 1926, he placed thereon a mortgage to secure the payment of the sum of $3,400.00 with interest thereon at the rate of 8% per annum and attorney’s fees of 10%.

About December 1, 1926, he began the erection of a residence on the lot.

On December 11, 1926, he placed a second mortgage on the property to secure the payment of the1 sum of $600.00 with interest thereon at the rate of 8% per annum and 10% attorney’s fees.

And on March 14, 1927, he placed a third mortgage on the property to secure the payment of the sum of $1778.14 with 8% per annum interest thereon and 10% attorney’s fees.

Among others who furnished material or performed labor, or both, in the construction of the improvements, were F. L. Rosenblath, doing business under the name of Rosenblath Plumbing Company, W. R. Simmons, doing business under the name of Simmons Building Material Company, and Percy R. Elliott, doing business unde? the name of Elliott Brothers Electric Company.

On October 7, 1927, tbe Shreveport Long Leaf Lumber Company, Inc., sued out ex-ecutory process on its first or $3,400.00 mortgage and the. mortgaged property was seized and sold by the sheriff, that company becoming the adjudicatee at the price of $5,900.00.

After the seizure and before the sale Rosenblath filed an intervention in the suit setting up that on December 1, 1926, he had contracted with Spurlock to perform the labor and furnish the material necessary to install the plumbing and gas fitting in the residence and that he had complied with his contract and that the sum of $477.00 was owing to him by Spur-lock therefor and that he .had duly filed written evidence thereof in the office of the recorder of mortgages and had a privilege on the property to secure the payment thereof; and he prayed that the Louisiana Long Leaf Lumber Company and Spurlock be cited and served and that he have judgment against Spurlock for his debt and that he be decreed to have a privilege on the property to secure its payment, that the sheriff be ordered to retain in his hands until the further orders of the court the proceeds of the sale of the property in excess of the debt, interest and costs due under the Louisiana Long Leaf Lumber Company’s first mortgage, and that his privilege be decreed superior to that company’s second and third mortgages and satisfied out of the proceeds of the sale remaining in the sheriff’s hands in preference to these mortgages.

The court signed an order directing the sheriff to retain in his hands the surplus of the proceeds of the sale of the property after satisfying the writ under which it was seized and sold.

Answering the intervention the Louisiana Long Leaf Lumber Company denied that intervenor had any privilege on the property, and set up the existence of its second and third mortgages, alleged that they primed in rank the alleged lien of intervenor and asked that the debts secured thereby be paid out of the money in the sheriff’s hands in preference to intervenor’s claim.

And thereafter Simmons filed an intervention in the suit setting up that between November 4, 1926, and April 8, 1927, both inclusive, he had sold and delivered building material to Spurlock for use in and that was used in the construction of the improvements- on the property and that the sum of $417.88 was owing to him by Spurlock therefor, and that he had duly filed written evidence thereof in the office of the recorder of mortgages and had a privilege on the property to secure the payment thereof; and he prayed for judgment against Spurlock for the amount of his debt and that he be decreed to have a privilege on the property to secure its payment, and that his claim be paid out of the money in the hands of the sheriff in preference to all other creditors of Spur-lock.

And thereafter Elliott filed an intervention in the suit, setting up that under contract with Spurlock he had performed labor and furnished material in installing the wiring and fixtures for electric light in the construction of the improvements for the price of $175.00, that he had duly filed written evidence of his claim in the office of the recorder of mortgages and had a privilege on the property to secure the payment thereof, and he prayed that his privilege be recognized and that his claim be paid out of the money in the sheriff’s hand in preference to all other creditors of Spurlock.

On these issues the case was tried and there was judgment in favor of plaintiff, Shreveport Long Leaf Lumber Company, Inc., and intervenors, Rosenblath Plumbing Company, Simmons Building Material Company, and Elliott Brothers Electric Company, and against defendant, Frank Spur-lock, recognizing' the mortgages of the Shreveport Long Leaf Lumber Company and the privileges of the Rosenblath Plumbing Company, Simmons Building, Material Company, and „ Elliott Brothers Electric Company, on the property, for the amounts and ranking them and directing the proceeds of the sale to be distributed as follows, to-wit:

First: In payment of all costs of the suit.

Second: The mortgage debt of the Shreveport Long Leaf Lumber Company for the sum of $3400.00 with 8% per annum interest thereon from October 1, 1926, until paid, and 10% additional on the amount of principal and interest as attorney’s fees.

Third: The privilege debts of the inter- ■ venors named, to be paid pari passu, to-' wit:

Rosenblath Plumbing Company, for $477.00 with 5% per annum interest thereon from April 6, 1927, until paid. Simmons Building Material Company, for $417.88 with 5% per annum interest thereon from March 7, 1927.

Elliott Brothers Electric. Company, for $175.00 with 8% per annum interest thereon from May 28, 1927, until paid.

Fourth: The mortgage debt of the Shreveport Long Leaf Lumber Company for the sum of $600.00, with 8% per annum interest thereon from December 11, . 1926, until paid, and 10% additional on ■ the amount of principal and interest , ■ as attorney’s fees.

Fifth: The mortgage debt of the Shreveport Long Leaf Lumber Company for the sum of $1778.14, with 8% per annum interest thereon from March 14, 1927, and 10% additional on the amount of principal and interest as attorney’s fees.

The Shreveport Long Leaf Lumber Company appealed.

OPINION

Section 12 of Act No. 298 of 1926 reads, in part, as follows:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction; for the account of the said owner, for which no contract has been entered into,- or when a contract has been entered into but has not been recorded, as and when required by this act, then any person furnishing- service or material or performing any labor on said building or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in w?hich said work is being done a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the’ same, by said furnisher of material of said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement * * *
“Said lien and privilege shall be superior to all other claims against the said land and improvements, except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale and resale to and from a regularly organized homestead or building and loan association, if said vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished * *

The claim of privilege of Rosenblath Plumbing Company was filed in the office of the; Clerk of Court on April 6, 1927.

As to the date when the work was done and material furnished for which the privilege is claimed, F. L. Rosenblath testified:

“Q. When did you do this work?
“A. Along about December 7th, of last year.
“Q. 1926?
“A. Yes, sir.
“Q. Has that work ever been completed?
“A. No, sir.
“Q. What is necessary in order to complete it?
. “A. Have to get the plumbing inspected by the plumbing inspector.
“Q. Has the work ever been inspected?
“A. No, sir.
“Q. Is there some additional work in order to get a complete inspection, in order for the city inspector to make his inspection of it?
“A. Yes, sir.
“Q. When was the last time you did any work on the property?
“A. That was done some time in February, 1927.”

The claim of privilege of Simmons Building Material Company was filed in the office of the Clerk of Court on May 7, 1927.

As to the date when the material was delivered for which the privilege is claimed. W. R. Simmons testified:

“Q. When did you begin to make the de-livery of the material that was used in the construction of those improvements?
“A. In November, 1926.
“Q. With the exception of one yard of gravel, you completed your delivery of the job on January 7, 1926?
“A. No; 1927.
‘‘Q. 1927?
“A. Yes, sir.
“Q. Then the only material that was delivered to the job (after that) was one yard of gravel, which was delivered after that, on April 8th; is that correct?
“A. Yes, sir; and it is customary to do that, and it was the last material used.
‘‘Q. I am asking you what the facts were, and not what the custom was; you filed your lien, then, on May the 7th, 1927?
“A. Yes, sir.
“Q. In other words, from January the 7th 1927, until April the 8th, 1927, there has elapsed a period of approximately ninety days; is that correct?
“A. Yes, sir.
“Q. And the only material that you delivered (within that ninety days) is one yard of gravel?
“A. Yes, sir.
“Q.' What was this material (for) that was delivered on April the 8th?
“A. It was for the extension of the driveway.
“Q. On January the 7th, 1927, when you made the last delivery prior to the delivery of April the 8th, did you know that there was still a delivery of gravel to be made to that job?
“A. Yes, sir.
“Q. Under your agreement with Mr. Spurlock was it your duty to deliver that gravel?
“A. Yes, sir.”

The claim of privilege of Elliott Brothers Electric Company was filed in the office of the Clerk of Court on May 28, 1927.

As to the date when the work was done and material furnished for which the privilege is claimed, Percy R. Elliott testified:

“Q. When did you first have an agreement with him (Spurlock) to furnish and install the electrical fixtures on this job?
“A. We were notified to start on the j0^ * * * on or about the 1st of December; the first work was done on December the 8th.
‘‘Q. What year?
“A. 1927.
“Q. You mean 1926?
“A. Yes, sir; it ran into 1927; the job-was not finished until 1927.
‘■‘Q. When was the work done under your agreement?
“A. The job progressed through January the 21st was the last time that any labor was performed on the job.
“Q. You performed the last labor on the job on January the 21st?
“A. Yes, sir.
“Q. What was that?
“A. I presume that the work would he that of putting in the switeh-plates, hanging light fixtures, as that is usually the last thing that is done on a job.
* * *
“Q. Has that contract been completed with him (Spurlock)?
“A. It has not been completed yet.
“Q. What is there lacking to be done yet? Except to put in the lamps?
“A. It is necessary to put in the lights, together with the fuses, and have a final inspection.
“Q. Why did you not do .that on January the 21st when you did your last installing there?
“A. The lamps and fuses are items that are' easily removed, and are always stolen on a new job, and they are never furnished until the house is occupied,' and they are placed in, then; and the final inspection, that is never made until the house is to be occupied.
“Q. Have you been ready at all times to do that?
“A. Yes, sir; when they notified me that the house was to be occupied.
“Q. By whom were you to be notified?
“A. Mr. Spurlock.”

As to the claim of privilege of the Rosenblath Plumbing Company, the Shreveport Long Leaf Lumber Company, Inc., contends that when the job was ready for inspection by the city “some time in February, 1927,” the “last delivery of all material” and the “last performance of all services or labor” on the job were done, and that the delay for filing the claim of privilege then began to run, that it was not filed within sixty days thereafter, and that therefore the Rosenblath Plumbing Company had no privilege.

The claim of privilege was filed on April 6, 1927, and conceding that this was not within sixty days after the job was ready for inspection, we do not think the delay for filing it had yet run.

Ordinances of the city of Shreveport require jobs of this kind .to meet certain standards they prescribe and forbid the use of such installations until they have been inspected and approved. If, on inspection, the work done or material furnished fails to obtain such approval the contractor must do such other work or furnish such other material as may be necessary to obtain it; and until then it cannot reasonably be said that there has been a “last delivery of all material” or “last performance of all services or labor” on the job.

At the time of the trial, January 4, 1928, the inspection had not yet been made, and we are of opinion that the sixty-day delay had not yet expired and that the claim of privilege was timely filed.

As to the claim of privilege of the Simmons Building Material Company, the Shreveport Long Leaf Lumber Company, Inc., contends that the “last delivery of all material” was on January 7, 1927, and as the claim of privilege was not filed until May 7, 1927, the filing was too late to create a privilege.

We do not think so. On January 7, 1927, the driveway of the residence was not completed, and on April 8, 1927, a yard of gravel was delivered for the completion of this work. W. R. Simmons testified that this yard of gravel was delivered pursuant to the agreement with the owner of the property, Mr. Spurlock, under which the rest of the material sold by him was delivered, and that when he made the last delivery of material prior to this one on January 7, 1927, he knew that there was further material for the job to be delivered.

We are of opinion that the “last delivery of all material” was this yard of gravel on April 8, 1927, and as the claim of privilege was filed within sixty days thereafter we hold that it also was timely filed.

As to the claim of privilege of the Elliott Brothers Electric Company, the Shreveport Long Leaf Lumber Company, Inc., contends that the “last delivery of all material” and the “last performance of all services or labor” on the job was on January 21, 1927, and that the filing of the claim of privilege on May 28, 1928, gave it no privilege.

The contract under which the work was done required the Elliott Brothers Electric Company to furnish lamps and fuses, and until these are furnished and installed we do not think the “last delivery of all material” will have been made or the “last performance of all services or labor” will have taken place, and the lamps and fuses had not been furnished up to the time the trial took place, January 4, 1928.

Installations for electric lighting must conform to certain standards prescribed by ordinance of the city 'of Shreveport and must receive the approval of the city before they can be used for that purpose. Mr. Percy • R. Elliott testified that this inspection has not yet been made. It may be that the installations may not meet with the approval of the authorities and in that event other material may have to be delivered and other services or labor performed as a prerequisite to such approval, and for this additional reason it cannot reasonably be said that on January 21, 1927, there had been a “last delivery of all material” or “last performance of all services or labor” on the job or that there will have been before the furnishing of the lamps and fuses and the approval of the work by the city.

We hold that the claim of privilege of Elliott Brothers Electric Company also was timely filed. '

The Shreveport Long Leaf Lumber Company, Inc., cites the case of Gleissner vs. Hughes, 153 La. 133, as sustaining its contention that the sixty-day delay for filing the claims of privilege began to run as it claims and not as contended for by the intervenors. But that case has no application to this one for the reason that the statute there under consideration was different from the one applicable here. And we are also referred to other cases and have examined them and do not find them controlling here.

We find no error in the judgment appealed from and accordingly it is affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3390
    Second Circuit
    WOMACK v. ASKEW
    (November 8, 1928. Opinion and Decree.)

      Crow and Coleman, of Shreveport, attorneys for plaintiff, appellant.
    J. S. Atkinson; and Alex F. Smith, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This action arises out of a collision between motor vehicles belonging to the respective parties, and each alleges liability on .the part of the other, and both appeal from a judgment rejecting their demands.

The collision occurred in the day-time on a hard-surfaced or graveled road at a point near the north end of a narrow bridge which was in the center of the highway.

The vehicles were being driven in opposite directions, that owned by plaintiff, a one-ton Ford truck with trailer attached, being -driven north, and that owned by defendant, a Cadillac sedan, being driven south.

The highway was level and straight for some distance on each side of the bridge, and . each of the drivers had a clear view of the other vehicle as they approached the bridge, and both drivers were aware of the location of the bridge and of the fact that the vehicles could not pass each other on the bridge.

Plaintiff alleged that the collision was due to the fault and negligence of defendant in that defendant had approached the bridge at a high rate, of speed and on the wrong side of the roadway, and that after the truck had about cleared the bridge and when the sedan was about fifty feet from the bridge, the driver of the sedan suddenly swerved it to the left and into collision with the truck, which was denied by defendant who, in turn, alleged that the collision was due to the fault and negligence of the driver of the truck, in that defendant had brought his car to a stop on the right side of the roadway at a distance of about twenty feet from the bridge, and that the truck was driven in such a careless and reckless manner and at such speed as it crossed the bridge as to cause the trailer to swing back’ and forth over the roadway, and that the trailer thus oscillating as the truck was driven off the bridge came in contact and collision with defendant’s automobile.

The testimony of the witnesses offered by the parties, who claimed to have seen the collision, in the main support their respective allegations, with the exception that plaintiff’s witnesses testified that defendant had swerved his car to defendant’s right, bringing the rear of the sedan in contact with the front of the truck, causing the sedan to be whirled and to come in contact with the rear of the truck, and that the collision occurred nearer the bridge than alleged by either of the parties, and each of the parties contends that the physical facts support the testimony of his witnesses, as to which, however, the physical facts, the testimony is also conflicting.-

There is uncontradicted evidence showing that the truck was being driven at such speed as to cause the trailer to swing back and forth, and out of alignment with the truck, and it appears highly improbable that an impact .on the rear of the sedan could have caused it to whirl so as to bring its front in contact with the rear of the truck or trailer. The sedan weighed several thousand pounds and was probably heavier than the truck and trailer, and the photograph of the sedan indicates that the greatest force was on the rear of the sedan, and we are of the opinion that the evidence best supports the defendant’s theory of the accident, as to the trailer coming in contact with the sedan, which would indicate that there was room for the truck to have passed the sedan had the truck been driven at a proper rate of speed, and that the accident was attributable to the negligence of the driver of the truck.

However, the evidence, as stated, shows that the collision occurred at a point nearer the bridge than alleged by either of the parties, and while it appears that the truck could have been driven off of the bridge, which was in the center of the roadway and to the driver’s right side of the roadway, without the trailer coming in contact with the sedan, the statement of defendant shows that he knew that the truck . was approaching the bridge 'at a high rate of speed and that he knew of the danger of a collision at that point, and prudence required he should have placed his car in such position as to have allowed a safe margin for the truck to have cleared the roadway after leaving the bridge, and we do not find that the evidence establishes that defendant’s car was in such position, but rather shows that it was about the center of the roadway, and we are of the opinion that having knowledge of the situation, his lack of prudence contributed to the accident.

The judgment appealed from is therefore affirmed.


text:
    No. 2770
    Second Circuit
    H. H. PRESCOTT & SON v. HOLLINGSWORTH
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    B. H. Lichtenstein, of Shreveport, attorney for plaintiff, appellee.
    . Crow and Coleman, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is a suit for a balance due on open account, in which defendant pleaded a general denial and the prescription of three years.

On trial judgment was rendered in favor of plaintiff and against defendant for the amount sued for and defendant appeals; but the cause was not argued and defendant has, not filed any brief and suggested any error in the ruling of the trial court.

The record shows that the account is for items charged against defendant for premiums due on insurance policies issued through plaintiff to defendant who was represented by her brother on which a payment was made and the account acknowledged on March 9, 1923, and the present suit was filed and service obtained on defendant on March 9, 1926.

The payment and acknowledgment of the account interrupted prescription, and the plea was properly overruled and judgment rendered for plaintiff (Bennett-Brewer Hardware Co. vs. Wakeman, 160 La. 407, 107 So. 206; Holmes & Co. vs. Hiller, 7 La. App. 590), and the judgment is affirmed.


text:
    No. 3373½
    Second Circuit
    MULLENS v. VICKSBURG, SHREVEPORT & PACIFIC RAILWAY COMPANY
    (November 8, 1928. Opinion and Decree.)
    Crow and Coleman, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall and Hreyer, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff brought this action to recover damages for personal injuries sustained by him resulting from a collision between an automobile driven by him and a train operated by defendant at a road crossing, which occurred about 7:30 a. m. on December 9, 1925.

He alleged that defendant was negligent in failing to give warning of the approach of the train to • the crossing either by sounding the' locomotive whistle or ringing the bell, which was denied by defendant, which also pleaded, in the alternative, and in event of its being found negligent, that plaintiff was guilty of negligence which contributed to the collision, in that he failed to take necessary precautions before driving upon the track, and that he drove upon the track in such close proximity to the train it was impossible for the trainmen to avoid the collision.

On trial plaintiff’s demands were rejected and he appeals, urging that the preponderance of the evidence established that defendant was negligent and that such negligence was the proximate cause of the collision, and further that if the defendant was not negligent as alleged, that the evidence established that it had the last clear chance to avoid the collision.

The track of defendant at the point of collision runs approximately east and west and the roadway over which the automobile approached the track from the “stop” sign, which is about thirty feet from the track, comes to and crosses the track at right angles, and the evidence establishes that when his automobile reached the “stop” sign plaintiff stopped the machine for about five minutes, when he lookéd and listened, and not seeing nor hearing any train he started his automobile and drove it toward and onto the track at a speed of about five miles per hour, until the automobile was practically on the track, when he heard the warning signals from the, locomotive followed almost immediately by the collision, and he attributes his failure to have seen or heard the approaching train when he stopped at the “stop” sign to his ability to see only a' short distance along the track from that point and the failure of the trainmen to give any signals of the approach of the train.

The evidence is somewhat conflicting as to whether or not there were any signals given, such as sounding the locomotive whistle or bell, of the approach of the train; in fact plaintiff and several other persons who were in a position to have heard the signals stated that they did not hear any, while four members of the. train crew, consisting of the engineer, fireman, flagman and conductor, testified that the usual signals were given, and in view of the fact that of the plaintiff’s witnesses only the plaintiff stated that he was listening for the signals, we cannot say that the preponderance of the evidence established that the signals were not given.

Aside, however, from the question of whether or not the signals were given, the evidence establishes that from the point where plaintiff stopped his automobile, to the track, he had a clear view along the track in the direction from which the train approached for about two thousand feet, and in view of the fact that the train was not running-in excess of twenty-five miles per hour, and the automobile at five miles per hour, there is but one conclusion that can be reached for plaintiff’s failure to have seen the approaching train, which is, that he only looked when he stopped at the “stop” sign, where he states he remained for about five minutes, and did not look when he started his car, or thereafter as he approached the track from the “stop” sign, as he frankly admitted.

The situation presented was certainly such that had he observed the track after leaving the “stop” sign he would have seen the approaching train, and the speed at which he was driving would have enabled him to have stopped his car and avoided the collision, and we are of the opinion that he was negligent in failing to observe the track at such time, and that the doctrine of the last clear chance is not applicable.

The judgment appealed from is therefore affirmed.


author: REYNOLDS, J.

text:
    No. 3312
    Second Circuit
    STEWART v. KENNEDY AND DENNY CO., INC.
    (November 8, 1928. Opinion and Decree.)

      George T. McSwee, of Shreveport, attor-. ney for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiffs, Thomas & Stewart, alleged that they sold and -delivered to defendant, Kennedy & Denny Co., Inc., f. o. b. Sarepta, Louisiana, and at defendant’s request shipped to Indiana Flooring Company, at Memphis, Tennessee, ■ three car loads of oak lumber, amounting to 35,072 feet, board measure, for the agreed price of $18.50 per thousand feet, and had been paid on account thereof $354.90, and prayed for judgment against defendant for $294.92 with legal interest thereon from June 6, 1927, until paid, as and for the balance of purchase price.

Plaintiffs allege, in the alternative, that on the arrival of the lumber at Memphis, Tennessee, the consignee, Indiana Flooring Company, refused to accept it, and that at the request of defendant plaintiffs sent an agent there who measured and graded the lumber and sold it to the consignee as follows, to-wit:

9131 feet of C & B red and white oak at ..................................... $38.00

10427 feet of common red and white oak at .......................... 26.00

10981 feet of A common red and white oak at ........................................ 18.50

5772 feet of mill culls allowed as a credit on transportation charges.

And they prayed that in event they are denied judgment for the $294.92 and interest, as and for balance of purchase price, they be given judgment against, defendant for the lumber received by the consignee according to the grades and prices and quantity aforesaid.

Defendant moved to require plaintiff to elect to stand on their principal or alternative demand, which motion was overruled.

Defendant then moved to strike out plaintiff’s alternative demand, which motion also was overruled.

• Thereupon defendant answered, alleging that it purchased from plaintiffs, f. o. b. Sarepta, Louisiana, at the price of $18.50 per thousand feet, board measure, to be shipped by plaintiffs to Indiana Flooring Company, at Memphis, Tennessee, for account of Dallas Cooperage & Wooden Ware Company of Dallas, Texas, to whom defendant had sold the lumber at $20.00 per thousand fet, three car loads of lumber 1x4 inches and wider, 8 feet or 8 feet and longer, dry No. 2, common and better, rough dry oak, not more than 35 per cent to be No. 2, and that' the lumber shipped was not of that quantity and quality and that in consequence defendant had sustained a loss of $70.24, and it prayed that plaintiff’s demand be rejected and that it be given judgment in reconvention against them for the sum of $70.24 with legal interest thereon from June 24, 1927, until paid.

On these issue's the case was tried and , .there was judgment rendered in favor of plaintiffs and against defendant for the sum of $79.70 with legal interest thereon from the date of the judgment until paid and rejecting defendant’s reconventional demand, and defendant appealed.

OPINION

The evidence shows that plaintiffs sold to defendant f. o. h. Sarepta, Louisiana, three car loads of oak lumber of specified grades and quantities, with instructions to ship the lumber, to Indiana Flooring Company, at Memphis, Tennessee. Plaintiffs called on defendant to send a representative to Sarepta to grade the lumber and this defendant refused to do. On arrival of the lumber at Memphis the consignee refused to accept it on the ground that it was not as represented by defendant and defendant requested plaintiffs to send a representative there to adjust the dispute and one of the plaintiffs did go to Memphis and measured and graded the lumber and induced the consignee to accept it as the grades and at the prices as set out in defendant’s answer.

• Under this state of facts the original agreement of sale and purchase between plaintiffs and defendant was by mutual agreement set aside and a new one tacitly entered into whereby plaintiffs sold to defendant and delivered to Indiana Flooring Company for defendant’s account the lumber in question • as of the grades and quantities and at the prices agreed upon between the consignee and plaintiffs’ representative.

The evidence shows that after deducting the amount paid by defendant to plaintiffs on account' of the lumber from the price defendant received from its vendee for the lumber there remained a balance of $79.70, the amount of the judgment appealed from.

Defendant’s reconventional demand was properly rejected, since, as stated, the original contract between plaintiffs and defendant was abrogated by mutual consent.

• We find no error in the judgment appealed from and accordingly it is affirmed.


text:
    No. 3333
    Second Circuit
    HUTCHINSON BROS. v. JONES, JR.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    Rusca and Cunningham of Natchitoches, attorneys for plaintiff, appellant.
    James W. Jones, Jr., Natchitoches, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, Hutchinson Brothers, sold to defendant, James W. Jones, Jr., a Stultz & Bauer piano No. 30312 for the price of $450.00, and received in payment therefor $25.00 in cash and forty-two promissory notes of the purchaser, numbered from 1 to 42, dated September 9, 1918, drawn payable to the order of the .vendor, forty-one of them being for the sum of $10.00 each, payable, one on the first day of October, 1918, and one on the first day of each of the next succeeding forty calendar months, and one being for the sum of $15.00, payable on the first day of March, 1922. And by a contemporaneous -written agreement defendant agreed to pay interest at the rate of six per cent per annum on the notes from their date until their maturity and at the rate of eight per cent per annum thereafter until paid, and also agreed to pay ten per cent on the amount of principal and interest of the notes as attorney’s fees, should any of them be placed in the hands of an attorney for collection.

Plaintiff brings this suit to recover the amount represented by the notes numbered 30 to 42, both inclusive, being twelve for the sum of $10.00 each and one for the sum of $15.00, and interest thereon and attorney’s fees,' according to the contemporaneous agreement, and for the sum of $78.00, and interest thereon, being the amount of an unpaid draft dated August 15, 1923, payable October 1, 1923, drawn by defendant in favor of plaintiff on the Continental Bank & Trust Company, of Shreveport, Louisiana, and alleged by plaintiff to have been given to it by deféndant in payment of principal and interest owing on six of the notes, numbered 24 to 29, both inclusive, maturing on the first day of the months of September, October, November and December, Í920, and January and February, 1921. Plaintiff also asks for recognition of its vendor’s privilege on the piano and for attorney’s fees. And, on making affidavit and giving bond, as required by law, a writ of provisional seizure was issued and the piano seized.

The defense is that defendant only owes plaintiff the amount owing on seven of the notes, namely, those numbered 36 to 42, both inclusive, and the amount of the unpaid draft; defendant alleging that the draft was given in payment of the principal and interest owing on the notes numbered 30 to 35, both inclusive, and that defendant had promised to surrender the notes to him but had failed to do so.

On these issues the case was tried and there was judgment “in the sum of sixty dollars, being the amount of six notes of ten dollars each, and in the further sum of fifteen dollars, making a total of seventy-five dollars, with interest thereon at 6 per cent from September 9, 1918, until October 15, 1924. It is further ordered and decreed that defendant pay all costs of this cause incurred to October 15, 1924, and plaintiff pay all other costs.”

From this judgment plaintiff has appealed.

OPINION

The only question to be determined in this- case is whether the unpaid draft for $78.00 was given in payment for the six notes numbered 24 to 29, both inclusive, and surrendered by plaintiff to defendant, as alleged by plaintiff, or in payment of the six notes numbered 30 to 35, both inclusive, as alleged by defendant; and the evidence on the point is conflicting.

E. H. P. Braswell, a witness on behalf of plaintiff, testified:

“Q. What connection, if any, do you have with Hutchinson Brothers?
“A. Credit manager, and I have charge of all clerical work.
“Q. There is a draft attached to this petition, dated August 15, 1923, by defendant to Hutchinson Brothers, for $78.00. Please explain what that draft was for?
“A. I called on Mr. Jones on August 15th for payment of his contract notes, and on that date he gave me this draft for $78.00 to cover six notes which were dated September 1, 1920, October 1, 1920, November 1, 1920, December 1, 1920, January 1, 1921, and February 1, 1921, and being numbered 24, 25, 26, 27, 28 and 29.
“Q. What were the amounts of the notes?
“A. The notes were $10.00 each, with interest of $18.00, which made $60.00 principal and $18.00 interest.
“Q. Were they a part of the same issue of notes?
“A. Yes, sir.
“Q. Attached to the petition?
“A. Yes, sir.
“Q. Did you deliver these notes to Judge Jones?
“A. Yes, sir; I gave him all the notes and he gave me his draft for the six notes and interest.
“Q. Was the draft paid?
“A. No, sir.”

Cross-examined hy the defendant himself, the witness testified:

‘‘Q. Weren’t you to send those notes?
“A. No, sir; I gave those notes to yo" in your office.
“Q. You are positive?
“A. Yes.
“Q. That covered six notes and interes and you claim you delivered them to me in my office?
“A. Yes.
^ ^
“Q. And you say you sent me th* notes ?
“A. No; I gave you the notes in you office. I did not send them to you.”

The defendant, James W. Jones, Jr. testifying in his own behalf, said:

‘‘The draft' dated August 15, • 1923, paid (due) on October 1, 1923, covered six notes, and the six notes were due March 1, April 1, May 1, June 1, July 1, 1921, which notes are numbered 30, 31, 32, 33, 34. The purpose of the draft was in order that the notes might be sent by the company, but they were never sent. * * * The six notes were never mailed to me as promised, and have never been in my possession.”

The witness Braswell testified in rebuttal:

“Q. Judge Jones has just testified tha the notes wiere never mailed to him as promised. I understood you to say that you delivered the notes to him in .person when the draft was given. ■
“A. I did. 1 delivered the notes to him in his office, and would have no reason for taking the draft back.”

Defendant’s evidence is set off by that of plaintiff and the burden being on defendant to establish his defense by a preponderance of the evidence, the burden has not been discharged, and the judgment must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and set aside, and it is now ordered, adjudged and decreed that plaintiff, Hutchinson Brothers, have judgment against' the defendant, James W. Jones, Jr., for the principal of the thirteen promissory notes sued on, $135.00, with interest at the rate of 6 per cent per annum on the amount of each one of them from its date until its maturity and thereafter at the rate of 8 per cent per annum until paid, and for 10 per cent on the amount of the principal and interest of all of the notes, as attorney’s fees; and for further judgment for the amount of the unpaid draft, $78.00, with legal interest thereon from judicial demand until paid.

It is further ordered, adjudged and decreed that the plaintiff’s vendor’s privilege on the piano for the entire amount of this judgment be recognized and that the writ of provisional seizure be sustained and that the piano be sold according to law for the satisfaction of this judgment. Defendant to pay all costs.


author: LECHE, J.

text:
    No. -
    First Circuit
    ADAMS ET AL. v. N. O. T. & M. RY. CO.
    (December 4, 1928. Opinion and Decree.)
    See also 164 La. 1011, 115 So. 128.
    E. F. Gayle, of Lake Charles, attorney for plaintiff, appellant.
    F. E. Powel, of De Ridder, attorney for defendant, appellee.
   LECHE, J.

. The present suit was instituted by the heirs, children and grandchildren of the late Henry W.. Ford and Mary E. Ford, his wife, for damages resulting from the death of said Henry W. and Mary E. Ford, who were killed in a collision between their automobile and a train of defendant.

Henry W. Ford and wife had gone to Lake Charles to visit their son, and on their way, returning home, at De Quincy, in the' afternoon of April 3, 1925, the Ford runabout in which they were riding was struck by a passenger motor car of the N. O. Tex & Mex. Ry. Co. The automobile was completely demolished, its occupants were fatally injured and both died within a few minutes after the accident. • This-happened near the limits of the town of De Quincy, about half past five o’clock in the afternoon, where the public highway intersects the tracks of the railroad -company.

The highway along which Ford and his wife were traveling runs north and south, and the railroad tracks of defendant are laid across this highway approximately at a right angle. When Ford was about 60 feet from the railroad tracks he stopped short, then .resumed his journey and approached the crossing at a very moderate speed and did not again stop until his automobile was struck by the motor car coming from an easterly direction. The speed of the motor car is said to have been between fifteen and twenty miles per hour. The preponderance of the testimony shows that the usual danger signals, such as may be given ■ by a train of this kind, were duly given. At the point where Ford had stopped his automobile, there was a large bill posting board which completely obstructed his view towards the east, the direction from which the motor car was coming and the noise from the motor of his own automobile likely prevented him from hearing the approaching train. After he had passed the obstruction to his vision he evidently did not look any more, for if he had done so, he would have had ample time, considering the slow movement of his automobile, to see that the . motor car was about to cross the highway. The unfortunate victim of the accident did not use the precautionary measures necessary to insure his own safety and he was killed by his -own lack of prudence and not by the negligent act of defendant’s servants and employees.

The District Judge so found and we believe that his conclusion is well sustained by the evidence in the record.

■ The rule which requires the occupants of a vehicle to stop, look and listen before crossing a railroad track, first' adopted in the jurisprudence of all the States in the Union, and now prescribed in this State by statutory enactment, has for its purpose the safety of the traveling public. It is easier to stop an automobile than to stop a railroad train and the comfort and convenience of the traveling public is immeasurably better served by requiring the automobile to yield the right of way to the railroad train. The stop signs along highways are designed to enable the occupants of automobiles to look and listen before entering within the danger line. Such stop is of little benefit where the traveler can neither see nor hear. It is as much the duty of the traveler to look and listen as it is to stop. The greater the difficulty of seeing and hearing the greater the duty to take precautionary measures. It was held in Callery vs. Morgan’s L. & T. R. R. & S. S. Co., 139 La. 763, 72 So. 222, that because of the fact that' a collision between a railroad train and an automobile endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily controlled than a horse drawn vehicle and can be left by the driver, if necessary, the law enacts from him a strict performance of the duty to stop, look and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping, looking and listening will be effective.

We believe that the judgment appealed from is correct and should be affirmed.

And it is so ordered.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    VENTRE v. LASTRAPES, JR., CLERK AND RECORDER, ET AL.
    (December 4, 1928. Opinion and Decree.)
    W. A. Robertson, of Opelousas, attorney for plaintiff, appellee.

      Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

Homer Ventre, contractor for remodeling, reconstructing and re-equipping Opelousas Lodge, No. 1048, Benevolent and Protective Order of Elks, sub-let the plumbing and heating provided for in the contract to Preston Brashear under the following bid:

“Mr. Homer Ventre,
“Opelousas, La.,
“Dear Sir:
“I propose to furnish all plumbing and heating material and install same, according to plans and specifications prepared by Herman J. Duncan, Architect, on the Elks Club Building of Opelousas for the sum of $7,000.00.
“Respectfully submitted,
“Preston Brashear.”

Brashear’s bid was duly accepted. He furnished and satisfactorily installed all the plumbing and heating except Item 90 of the specifications, which he claims is not part of the plumbing, and therefore not part of his contract. The contractor claims that it is. The contractor called on Brashear to do the work called for by this item. Brashear refused, and the contractor then had the work done at an expense of $173.76, and when he settled with Brashear, he held back this amount. Brashear then recorded a lien against the building. The object of this suit is to cancel the lien and privilege recorded against the building on the ground that the full amount due on said account has been paid. The item in question reads:

“90, Drains. The contractor shall connect all conductors to street gutters, with cast iron boots and terra cotta pipes. All pipes being of such size that the combined area or conductors connected to pipe, shall not be greater than cross section area or terra cotta pipe.”

The evidence shows that item 90 has reference to the outside drainage of the roof. The “cast iron boots” provided for, join and unite the pipes which conduct the water from the roof to the terra cotta pipes which conduct the water under the pavement into the street gutter at the curb. Regarded technically, it may not -be plumbing, but work of the kind is often done by plumbers. Defendant Brashear cites Civil Code, Article 1947, and contends for a technical construction and application of the language used. Art. 15 on the subject of laws, is of import similar to the Article cited, which has reference to contracts.

The plaintiff citing Articles 1957 and 1958, contends for an interpretation and application of the provision made in item 90, congruous to the matter of the contract on the subject of plumbing and heating. The Articles 1946 and 1952 have application when that is done.

Defendant’s pollicitation: “according to plans and specifications prepared by Herman J. Duncan, Architect,” became by plaintiff’s acceptance, the contract between them. Defendant’s promise commences with and includes all items of work, furnishing and installation to, and including item 105. Item 90 is included under the specifications on the subject of plumbing and is part of the contract between Ventre and Brashear on that subject. This item in question should therefore have been furnished and installed by Brashear. The action of Ventre in the matter was correct. The District Judge so held and we have come to the same conclusion.

Judgment affirmed, defendant Brashear to pay the costs in both courts.


text:
    No. 359
    First Circuit
    HARRY S. KAUFMAN, LTD., v. HEBERT ET AL.
    (December 4, 1928. Opinion and Decree.)
    John W. Lewis, of Opelousas, attorney for -plaintiff, appellant.
    George K. Perrault, of Opelousas, attorney for defendant, appellee.
   LECHE, J.

C. J. Hebert Company, Inc., local insurance agency, domiciled at Eunice in the Parish of St. Landry, was agent of plaintiff who in turn was general agent in New Orleans of the Bankers & Shippers Insurance Company of New York. The C. J. Hebert Company, on the 25th day of January, 1925, issued as such local agent, a policy of fire insurance to the Liberty Theatre Company of Eunice in consideration of a premium of three hundred nine and 40-100 dollars. Instead of collecting the premium in cash, the Hebert company accepted in lieu thereof, a note of the Theatre company payable at some future date. On May 18, 1925, the C. J. Hebert Company sold all its assets to the Eunice Insurance Company, and among these assets was the. note of 1309.40, subscribed by the Liberty Theatre Company, held by the Hebert company in representation of the insurance premium due for the fire policy on its Liberty Theatre building. In the- sale from the C. J. Hebert Company to the Eunice Insurance Company, it is recited that the sale is made in consideration of the price of twenty-five hundred dollars cash, and in further consideration “of the assumption by said purchaser,” the Eunice Insurance Company, “of all the debts and liabilities appearing upon the books of the Eunice branch of the C. J. Hebert Company, Inc., consisting of balances due Insurance Companies on account of premiums, etc., arising during the period beginning March 1, 1925 * * * .”

Such are the conceded facts upon which plaintiff prays for judgment against- the Eunice Insurance Company. The District Court rejected plaintiff’s demand and plaintiff has appealed.

There are several issues presented by the pleading in the case, but they have all been eliminated, save the question of the liability of the Eunice Insurance Company to the plaintiff.

The question to be decided here is whether the purchase of the insurance business of the C. J. Hebert Company by the Eunice Insurance Company, has imposed upon the purchaser any liability or legal responsibility towards plaintiff, Kaufman, Ltd., for the amount of the premium due to plaintiff when the sale was made to it by the C. J. Hebert Company.

It is manifest from the terms of the contract of sale by the Hebert Company to the Eunice Insurance Company that the Eunice Insurance Company did not assume any such liability.

The debt of the Hebert company to the plaintiff arose on January 25, 1925, while the debts assumed by the Eunice Insurance Company on May 18, 1925; when it purchased the business of the Hebert company, are limited to such as arose on account of premiums due to insurance companies during the period beginning March 1, 1925.

In order to hold the Eunice company liable, plaintiff resorts to the language of the resolution passed by the Board of Directors of the Hebert Company, Inc., whereby C. J. Hebert was authorized to sell on behalf of the Hebert company, the business and all the assets of said company, in consideration of the assumption by the purchaser, the Eunice Insurance Company, of all the liabilities of the Hebert company. In the resolution thus adopted, there is no limit as to the kind, or the date of such liability, whereas in the act of sale the assumption is limited, as before stated, to debts that arose from premiums collected during the period beginning March L 1925. The contract by which the Eunice Insurance Company is bound, is that which is evidenced by the sale of May 18, 1925, and not the resolution of the Board of Directors of the Hebert company. The fact that C. J. Hebert as agent of his company, exceeded his authority in limiting the liability of the purchaser to debts which arose during the period beginning March 1, 1925, is a matter that concerns the Hebert company and the Eunice Insurance Company - and not the plaintiff, Kaufman, Ltd.

We believe that the District Judge properly rejected plaintiff’s demand, and his judgment is affirmed.


text:
    No. 377
    First Circuit
    MORRIS v. GIOVANNI ET AL.
    (December 4, 1928. Opinion and Decree.)
    W. C Braden, of Lake Charles, attorney for plaintiff, appellant.
    Leon Sugar, of Lake Charles, attorney for defendant, appellee.
   LECHE, J.

On July 9, 1927, plaintiff sold to Mrs. Beulah Stout Giovanni, wife of Joseph E. Giovanni, a certain tract of land, for the price and sum of eight hundred dollars, of which amount Mrs. Giovanni paid cash, the sum of ten dollars, and in representation of the balance of said purchase ' (price, she subscribed thirty-two promissory notes payable monthly thereafter. Giovanni, the husband, did not appear in the act, and the sale contains the following stipulation:

“It is understood that the vendee herein purchases this property with her own money, under her separate administration and control.”

The present suit is upon the notes thus made and subscribed by Mrs. Giovanni.

Plaintiff prays for judgment not only against Mrs. Giovanni, but also against her husband, on the theory that the purchase was made by her for the benefit of the community. Judgment by default was confirmed against Mrs. Giovanni, and this appeal, which was taken by plaintiff from the judgment in favor of Giovanni, the husband, only involves the question of the liability of the husband.

Act 94, p. 212, of 1916, as amended by Act 219, p. 365, of 1920, provides that a married woman may purchase and bind and obligate herself personally with reference to her separate and paraphernal property to the same extent and in the same manner as though she were a feme sole. Previous to the passage of that act, a married woman could not obligate herself or bind her separate property without the consent and authority of her husband. If she did so, the contract was null and void. She always could, however, obligate herself or bind her separate property with the consent and authority of her husband and such contract was held valid provided she did not do so for the purpose of paying her husband’s debts. If she bought property with her husband’s consent and authority, the presumption has always been that such acquisition is for the benefit of the community and third persons may at any time challenge the truth of her statement that she made such acquisition with her separate funds and for her separate benefit. But since the adoption of the Act of 1916, how can the presumption arise that she has bought for the benefit of the community when it is recited that she has purchased with her separate funds and for her separate benefit, where the act by which she acquired does not show the consent or authority of her husband. The husband is head and master of the community and to presume that she bought for the benefit of the community would be to presume that she acted as agent of her husband when shch agency can only be shown by writing and not by parol. A mandate to buy or sell an immovable is part of the title which can only be created by written proof Title to an immovable may be avoided but never can be created by parol.

We are therefore of the opinion that where a wife purchases immovable property in her own name, declaring that she buys with her separate funds for her seprate benefit and the husband’s consent and authority is not shown in writing and does not appear by his taking part in the act, there cannot arise a presumption that such purchase is made for the benefit of the community.

Plaintiff bases his demand entirely on the presumption that the acquisition 'by Mrs. Giovanni, on July 9, 1927, was and is for the benefit of the community, and while he concedes that her husband is not liable as maker of the notes, he contends that the husband is liable for the price of the property.

The District Judge rejected plaintiff’s demand against Giovanni, the husband, and believing that his judgment is supported by the law of the case, it is affirmed.


text:
    No. 371
    First Circuit
    PARKER v. W. G. RAGLEY LUMBER CO.
    (December 4, 1928. Opinion and Decree.)
    M. R. Stewart, of Lake Charles, and E. L. Stewart, of De Ridder, attorneys for plaintiff, appellant.
    Cline, Plauche &' Girod, of Lake Charles, attorneys for defendant, appellee.
   LECHE, J.

The demand in this suit is for compensation under the Employers’ Liability Act, and the question as submitted for decision is whether plaintiff’s right of action is prescribed.

Plaintiff was injured about August 31, 1923, and entered into an agreement with defendant on April 7, 1924, whereby he accepted a lump sum in settlement of his claim for compensation. That agreement was submitted to the District Judge and appi’oved by the latter on April 21, 1924. The present suit, assuming as null the agreement of April 7, 1924, on the ground of fraud and deception, is to urge a claim for compensation as if no such agreement had ever been entered into and was filed on November 18, 1927.

By an amendment of the law, as provided in Sec. 8, paragraph 8, p. 79 of Acts of 1922, the prescriptive period within which an action may be brought to set aside a lump sum settlement, where such lump sum settlement is made at a greater rate of discount than eight per cent, whether approved by the Judge or not, is fixed at five years. Such was the prescriptive limit within which an action to set aside a lump sum settlement on the ground that a discount greater than eight per cent had been deducted, could be instituted, at the time the agreement in this case was entered into. Act 216 of 1924, at page 452, reenacted the same paragraph and section but did not change the ground upon which, nor the period during which, an action to annul a lump sum settlement could be filed.

Paragraph 8 of Section 8 of the Employers’ Liability Act was again re-enacted in the same words by Act 242, at page 389 of the Acts of 1928, except that the prescriptive period is therein changed and fixed at two years in lieu of five years.

Plaintiff’s suit is for the purpose of recognizing as null the agreement of April 7, 1924, not on the ground that the discount exceeded eight per cent, but on the ground that he had been fraudulently induced to sign the agreement. This is evident from the fact that he is not suing for the penalty provided by the statute when an usurious discount is charged, but he is suing on the theory that the agreement of April 7, 1924, should be ignored and he prays to be awarded compensation as if no such agreement had ever been entered into. The prescription of five years provided in the cited paragraph of the Employers’ Liability Act, by its terms, applies to a suit in which the penalty also provided in the same paragraph, is demanded on the ground that the employee had been allowed a lump sum without- the approval of the Court, or charged an usurious discount, or a discount in excess of eight per cent.

This view of plaintiff’s demand is confirmed by the terms of the prayer of his petition. Plaintiff does not pray that the agreement of April 7, 1924, be set aside and annulled. He ignores this agreement entirely and prays for compensation as if no such agreement ever had existed.

The prescriptive period whether it be five or two years, provided for in paragraph 8 of Section 8 of the Employers’ Liability Act, applies solely according to the language of the statute as we understand0 that language, to a demand based upon the fact that an agreement fixing a lump sum settlement', was not approved by the Judge, or even if approved by the Judge, that the computation of such lump sum is based upon an usurious discount or a discount in excess of eight per cent. In such a demand, if the facts alleged are true, the employee is' then entitled to recover a penalty originally fixed at double the amount of the lump sum, but now reduced by the amendment of 1926, page 122, Sec. 8, Par. 9, to one-half the amount of the lump sum already paid to the employee.

The present suit' not being of that character, we do not think that the plea of prescription is well founded. Whether plaintiff’s demand is prescribed upon other grounds, is a matter about which we can express no , opinion, and in the present condition of the case, all that we can do is to annul and set aside the judgment appealed from, and to remand the case for further proceedings, and,

It is so ordered, defendant and appellee to pay the costs of this appeal.


text:
    No. -
    First Circuit
    BLACK ET AL. v. ROUSSEL ET AL.
    (December 4, 1928. Opinion and Decree.)

      W. J. Carmouche, of Crowley, attorney for plaintiff, appellant.
    Gremillion and Smith, of Crowley, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff’s action is predicated on • a note of the defendant Abnér Roussel for $1625.00 and its main purpose is to have declared as simulated a sale from Roussel to Luzar John, of a farm containing about 300 acres of land. Plaintiffs allege in the alternative, that if said sale is not simulated, it is fraudulent and was made by Roussel and accepted by John for the purpose of enabling Roussel to evade the payment of their note of $1625.00.

Thd charge of simulation was abandoned in this Court at the time the case was submitted, so that the action as now presented is the actio pauliana, purely recovatory and the sale is now sought to he set aside for having been made by Roussel in fraud of plaintiffs, his creditors.

The District Court rejected the demand of plaintiffs and they have appealed.

It is elementary that one who attacks a transaction as fraudulent, must have been a creditor at the time of the transaction, that he must prove the insolvency of the vendor at the time, knowledge of such insolvency by the purchaser and the intent of the latter in buying, to assist the former in defrauding his creditors. C. C. 1969, 1970. Rownd vs. Davidson, 113 La. 1048, 37 So. 965.

In the present case plaintiffs are creditors of Abner Roussel and this condition precedent to bring the action is virtually conceded. But the existence of the other conditions required by law in order to set aside the transaction, is seriously denied and that constitutes the contested issue in this case.

The insolvency of Abner Roussel when he sold his farm to Lazar John, is not proved with any degree of certainty, and even if such fact be presumed, it is certainly not established that John was aware of it. The other legal requisite that John must have bought for the purpose of assisting Roussel to defraud plaintiffs, his creditors, rests on mere suspicion.

It is shown and conceded that Roussel made no concealment of the fact that he wanted to sell his farm, that he really sold it and made actual delivery to John. That he obtained from John as the purchase price a sum of money approximating $18,000.00. The preponderance of the evidence shows that this was a fair price, say $60.00 per acre, for the 300 acres of land contained in the farm, and we therefore see no reason to annul the transaction as one concocted by the parties to defraud the creditors of Roussel.

Plaintiffs contest the right of defendants to prove additional consideration paid by John and received by Roussel, not mentioned in the written act of sale, on the ground that parol testimony is not admissible for such a purpose. Under Art. 1900, C. C., it was competent for the paráes to prove the existence of a true and sufficient consideration. Cambon Bros. vs. Suthon, 147 La. 66, 84 So. 496; Brewer vs. N. O. Land Co., 154 La. 454, 97 So. 605; Queensboro Land Co. vs. Cazeaux, 136 La. 739, 67 So. 641.

Believing that ■ the findings of the trial Judge are correct, his judgment is affirmed.


author: MOUTON, J.

text:
    No. 355
    First Circuit
    ESTATE OF ARDOIN OPPOSITION OF CHAPMAN
    (December 4, 1928. Opinion and Decree.)
    J. H. Dore, of Yille Platte, attorney for administrator, appellant.
    O. E. Guillory, of Ville Platte, attorney for opponent, appellee.
   MOUTON, J.

Achile Ardoin died leaving a small estate which was sold to pay debts.

The tableau filed by the administrators is opposed by Celestine Chapman, claiming to be a creditor of the estate as housekeeper for the deceased at six dollars per month during eight months, on a promissory note for one hundred dollars with interest, and in the sum of one hundred five dollars for nursing deceased.

Judgment was rendered below for the amount of the note claimed, and for forty-eight dollars for her services as housekeeper, less ten dollars received on account. The foregoing constitutes the sum in contest in this Court.

Opponent, the record shows, was hired as house servant by deceased about ten years before his death which occurred at the age of eighty-six.

It is abundantly shown that she cooked, washed, kept house for deceased, at six dollars ' per month. She rendered these services during a period of eight months for which the Court allowed her forty-eight dollars, less a payment of ten dollars received by her from Mr. Ardoin. She was a faithful servant, as appears from the evidence, and was certainly entitled to this small sum for her valuable services.

It is shown by two or three witnesses that a year or more before his death Mr. Ardoin stated that he could not continue his payments to opponent.

He executed a, promissory note for one hundred dollars in favor of opponent, which was signed by Cleophas Miller and Purdy Fontenot, as witnesses.

Cleophas Miller, a merchant, testifies that deceased said to him that he was owing opponent one hundred dollars, was unable to pay, and wanted to make a note in her favor for that amount in recognition of her services. The note was drawn up by Miller,, was signed by deceased, and by Miller, and Fontenot as witnesses.

Opponents contend that the note is dated January 24, 1927, and is made payable January 1, 1927, at a time which preceded its execution. The date of the execution of the note is blurred, and it is difficult to say whether it was made in January, 1926, or 1927. There can be no doubt that the note was made by deceased lor an equitable and pre-existing legal obligation which he desired to perpetuate by written evidence for the benefit of opponent. If it was really dated Jan. 24, 1927, instead of 1926, this was merely the result of inadvertence, or a clerical error which can have no legal significance, and it is of no importance.

The note is valid, and binding on the estate for which judgment was correctly decreed for opponent in addition to the thirty-eight dollars' hereinabove referred to.


text:
    No. 3409
    Second Circuit
    WYATT v. THE TEXAS PIPE LINE CO.
    (November 8, 1928. Opinion and Decree.)
    Harry V. Booth; Hoye Grafton, of Shreveport, attorneys for plaintiff, appellant.
    Pugh, Grimmet and Boatner, of Shreveport, Spearing and Mabry, of New Orleans, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under the Employers’ Liability Act, Act No. 20 of 1914 (as amended). Appellant alleged that appellee was engaged in a hazardous business and that he was employed by it and while so employed suffered an accident which permanently totally disabled him to do work of any reasonable character, and he prayed for judgment against it for an amount equal to 65% of the wages he was earning for a period of 400 weeks and for the further sum of $250.00 for medical attention.

Defendant denied that plaintiff suffered any injury in an accident while he was in its employ and alleged that when he entered its employ he was suffering from disease and that any disability to labor under which he was suffering was the result of and caused by such disease and not to any degree by the accident to him.

On these issues the case was tried and there was judgment rejecting the plaintiff’s demands and dismissing his suit and he has appealed.

OPINION

In his brief filed in this court appellant says:

“The merits of this case present only questions of fact, which were resolved against the appellant in the lower court. Although we feel that the evidence in the case warranted a finding of fact by the trial judge in favor of the appellant, we shall abandon that feature of this appeal, in view of the numerous decisions of this court to the effect that a finding of fact will not be disturbed unless manifestly erroneous.
“The purpose in taking the present appeal was the refusal of the trial judge to sustain an objection of plaintiff’s counsel, thereby allowing the defendant to place a witness on the stand after plaintiff had submitted his rebuttal testimony and closed his case.”

This admission leaves for our determination only the' question as to whether the trial court erred in the ruling referred to or not. We do not think he erred.

After both plaintiff and defendant had introduced their evidence in chief and plaintiff had introduced its evidence in rebuttal, but before defendant had submitted its case or argument had begun, the following proceedings took place:

“By Mr. Booth: This is the plaintiff’s case.
“By Mr. Mabry: I would like, on behalf of the defendant, to recall Mr. Reeves.”
“By Mr. Booth: We object to this, on the ground that it is improper to offer testimony after the plaintiff has closed in rebuttal; second, counsel waived his right to offer the witness, because he failed to object to the question asked the rebuttal witness, Mr. Chapman.”
“By the Court: The objection is overruled, and the case is reopened, all the witnesses being present, to put on any testimony either counsel may desire.”
“To which ruling of the court, counsel for plaintiff excepts and asks that this note stand in lieu of a formal bill of exception.
“Mr. Reeves, recalled, testified as follows : ■
“On direct examination he said:
“Q. Mr. Reeves, Mr. Chapman states that you personally ordered him to assist in moving this tank; did you, or not?
“A. No, sir; I didn’t.”
“Mr. Lacy, being recalled, testified as follows:
“On direct examination he said:
“Q. You saw Mr. Chapman take the stand a moment ago?
“A. Yes, sir.
“Q. Was he one of the four who assisted in moving that tank?
“A. I don’t recall whether he was or not.”

Whereupon the case was closed and submitted for adjudication.

Appellant cites no decisions but only Article 477 of the Code of Practice in support of his contention that it was error to admit the additional testimony. The article in question is not mandatory but only directory and it has been time and again held that the question of reopening the testimony and admitting new evidence is largely left to the discretion of the trial judge.

Louisiana Digest, vol. VII verbo “Trial,” section 34.

After the admission of the additional testimony the appellant did not set up surprise or ask that he be permitted to introduce, further testimony or that the case be left open and continued to enable him to do so, nor does he, in his brief in this court, contend that he was prejudiced by the additional testimony and we are unable to conceive how he could have been, since the issue on which the case turned in the court below was not whether plaintiff suffered an accident or not but whether his disability, if any, was the result of the accident or of disease from which he had been suffering, and this issue was resolved against him, and correctly- resolved, as he admits in his brief as above quoted, and the fact of the accident was immaterial.

We find no error in the judgment appealed from and accordingly it is affirmed.


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    No. 357
    First Circuit
    GREIG v. COMEAU
    (December 4, 1928. Opinion and Decree.)
    J. Hugo Dore, of Ville Platte, and W. G. Perrault, of Opelousas, attorneys for plaintiff, appellant.
    W. A. Robertson, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

George Greig instituted suit against Mrs. E. B. Comeau for $799.16 with interest as balance due him on an open account. His allegation is, that for a period extending through many years he sold and delivered to her certain goods, wares and merchandise, acting for her separate account and benefit individually and through her husband, C. H. Comeau, managing her separate paraphernal property as her agent, and through Gaston Hardy, her overseer and superintendent of her plantation, Catalpa Square, situated in the Parish of St. Martin, for the improvement, upkeep and cultivation of the same.

The plaintiff alleges that at the end of each year she individually or through her husband or overseer would settle for the current year’s advances and strike a balance of account. That the statement of the said balance of account was duly furnished Mrs. Comeau. The statement of account sued on commencing with the balance of $911.22 brought forward from the previous year, is annexed to and made part of his petition.

The defendant obtained an order requiring the plaintiff to show the items which made up the balance brought over in the account.

In response plaintiff produced two statements of account, calling them in his return, the documents which he was required to ¡produce, stating in his return that the basis of his suit was an acknowledged account produced to the Court. The return was not a compliance with what he had been directed to produce. One of the statement's. commences with a balance of $2772.69 on December 31, 1922, not itemized, the correctness of which purports to have been acknowledged by defendant’s husband, C. H. Comeau. The other commences with a balance of $1396.05 on December 1, 1923, and the balance brought over is not itemized and does not purport to have been acknowledged by anybody. Neither of them was acknowledged by Mrs. Comeau, the defendant.

The defendant objected to plaintiff’s noncompliance with the order, but the objection does not seem to have been acted on.' The defendant filed an answer in which she denies the indebtedness alleged against her. She alleges that she had no dealings with the plaintiff except isolated purchases pursuant to written orders, all of which had been paid for by her. That she had never dealt with plaintiff through a third party, and had never authorized him to charge to her merchandise ordered or supplied to her husband or her overseer or any other person. That she had been judicially separated in property from her husband for twenty-seven years and that during all that time, over which plaintiff’s pretended account runs, she individually administered her 'separate estate for her separate account and nobody had authority to contract debts, purchase supplies for her plantation, or execute acknowledgment of debts due by her. She denied "that she had authorized the purchase of the goods charged against her by the plaintiff. That the plantation in question was her separate estate, and she denied that same was used for its benefit or improvement. That plaintiff’s account represents in fact his dealings with her husband for which she was in no way responsible. That furthermore plaintiff’s account was prescribed, and she pleads the prescription of three years as a bar to action thereon under Article 3538 of the Civil Code. Numerous other defenses are urged in her answer, but it is not necessary to state them further.

The plaintiff called Mrs. Comeau for cross-examination. The plaintiff showed by her cross-examination that Gaston Hardy had been overseer for fourteen years on her plantation; that his employment terminated in 1925 and that all her purchases on account for her plantation were settled through him while he was in her employ as overseer. That her overseer had never shown her any statement of account from plaintiff showing payment of her account to him for advances to her plantation; neither had her husband. That she forbade her overseer to open a ¡plantation account. That she supervised and superintended her plantation through her overseer and not through her husband. That she disposed of her crops through her overseer and had never heard of plaintiff’s account against her until last year when Mr. Greig came to her house and told her about it at a time when her husband was very sick and not expected to live. That she refused to look at it or to discuss it with plaintiff on the ground that she had never authorized it and knew nothing about it.

The plaintiff then called Gaston Hardy, her former overseer, as a witness in chief. The witness Hardy in his testimony states that he had been her overseer for four-ten years, his employment terminating in 1925. He was interrogated by plaintiff closely for the purpose of showing that Mr. Comeau had acted as Mrs. Comeau’s agent in the management of the plantation, the purchase of ¡plantation supplies, and in selling and disposing of her crops thereon. His testimony reduced to substance and effect, shows that Mr. Comeau was not her agent nor manager, though he often came to the plantation, and that he, the overseer, often sent her messages through her husband and through him received replies.

It cannot’ be gathered as a result of his testimony that Mr. Comeau was the authorized agent of his wife for the purpose of managing her plantation or for the purpose of buying supplies or selling her crops. It seems that when Mrs. Comeau obtained judgment against her husband about twenty-seven years ago, separating them in property and dissolving the legal community of aeqiuets and gains that had until then existed between them, that she took over the management of her plantation interests herself, hired overseers, attended to the cultivation and selling and disposing of her crops through her overseer. She did not want her husband to have any-' thing to do with the management of the plantation, but did not want to ignore him altogether. We gather from the evidence on the subject that he had taken it on himself without authority from her to give orders, to which she was opposed. She therefore called in Mr. Hardy, her overseer at the time, and told him he was taking too many orders from her husband and might lose his job as a result of it. Mr. Hardy suggested to her that they have Mr. Comeau sign a written agreement that he had nothing to do with the management of the plantation. The witness Hardy explained that he wanted the agreement, because without it, he might have trouble with Mr. Comeau. Mrs. Comeau told him, so he says, to avoid trouble but to go on and do as he had been doing. It seems that she had told him in the beginning of his employment to take orders only from her. Mr. Hardy told her that he would act as little under Mr. Comeau’s orders as possible, and matters went on as before.

The witness testifies that Mrs. Comeau had told him not to buy anything to be charged, but to come to her for what he needed. That she expressly forbade him to buy anything from Mr. Greig or anybody else to be charged to her without her knowledge and consent, and he promised her that he would not, but that he did so nevertheless. The testimony of this witness as to the dealings of himself and Mr. Comeau with Mr. Greig is hard to believe, but it is apparently true.

According to the witness Hardy, Mr. Comeau and himself would .each year buy from Mr. Greig various things, such as plantation supplies which Mr. Greig would charge to Mrs. Comeau, but Mr. Hardy and Mr. Comeau kept the fact secret from Mrs. Comeau who had forbade that anything be charged to her. He says that Mr. Comeau did it and told him to do it and to keep the matter secret from Mrs. Comeau. That each year the account fell further and further behind until finally the balance due amounted to some nine hundred and odd dollars, and' that Mr. Comeau and the witness Hardy signed a note in settlement of the account. The witness testified that these supplies of food and advances of money were used for the benefit of Mrs. Comeau’s plantation. He further testifies that at the end of every year he went to see Mrs. Comeau and went over her plantation affairs with her, but withheld from her all knowledge of their dealings with Mr. Greig, because Mr. Comeau told him not to let her know about that matter. That in the fall of every year Mr. Comeau would, to the knowledge of the witness, detach a part of the cotton and cane on the plantation for Mr. Greig, and that Mr. Greig would apply the amount as credit on the-account which he kept against Mrs. Comeau. If there was more than was to be applied to the account, he would draw a check in favor of Mrs. Comeau for the balance, which would be taken to her.

The witness says that he consented to these things because of the insistence of Mr. Comeau. That Mrs. Comeau never came to the plantation but once in fourteen years. That Mr. Comeau would come and give him orders and he found it necessary to take them from him. That on account of the way Mr. Comeau was doing he gave up his position as overseer and withdrew from the place.

The plaintiff followed Mr. Hardy on the stand, and testified to nothing differently, except that he claimed that he was not aware that his dealings with Mr. Comeau and defendant’s overseer had been by them kept secret from Mrs. Comeau. He testified that he had no part in that; that he supposed she knew about the account. But the facts and circumstances indicate that he did his part, in keeping the fact from the knowledge of the defendant.

The evidence shows that the account went on from year to year. An unitemized balance of $2472.69 was brought over from the year 1921; another of $1378.05 from the year 1922; another of $911.20 from the year 1924. This is the balance for which plaintiff took a covering note signed by Mr. Comeau -and Mr. Hardy individually. If the plaintiff had supposed that the defendant owed the account, he would have had Mr. Comeau and Mr. Hardy sign it as her agents, or it is more reasonable to believe that he would have preferred to have Mrs. Comeau pay it than to take her husband’s and overseer’s individual note which he knew to he worthless, without mentioning the transaction to her. The note was never credited against the account which it covers. The plaintiff’s explanation is that it was not intended as a settlement of the account, but his witness Hardy says that it was. The plaintiff’s further explanation is that he took it as collaterial security and as an acknowledgment on the part of defendant’s husband and overseer that she owed it. If that be true, then why did he hold it hack and not produce it as such, when he was producing the statement of account which it covered, and which commences with a large balance over from the previous year. The lower' court had called on him to itemize this balance, and he brought forward instead a purported acknowledgment of same by Mr. Comeau.

At the time plaintiff took this note he knew that Mr. Comeau and Mr. Hardy had no property and that it could not be paid except by detaching cotton and cane from defendant’s plantation, as had been done in the past, which prospect took on- a bad appearance when Mr. Hardy ceased to be overseer. And in addition, when Mr. Comeau became sick and was not expected to live, it looks like he then decided to make his claim known to Mrs. Comeau.

Mr. Comeau could have been summoned as a witness and his side of these dealings with Mr. Greig heard, hut neither party saw fit to do so.

The statements show on their face and without going back beyond 1921, that plaintiff has received from defendant’s crops several thousand dollars’ worth of cane and cotton, and according to the evidence it came into his hands without her knowledge and consent. The statement also show important interest charges, hut due to the conclusion at which we have arrived, the sum claimed is not important, for the reason that the charges were never authorized by the defendant, and if any part of the advances were in fact used for the benefit of the plantation, the plaintiff ñas received the value of the advances so used.

Mrs. Comeau testifies that she sent Mr. Greig a written notice several years ago not to sell anything to her husband or Mr. Hardy, to be charged against her. Mr. Greig denies that he received this notice, but his subsequent actions indicate that he must have received such notice, otherwise he would not have taken a note from Mr. Comeau and Mr. Hardy individually, and would not have depended upon Mr. Comeau’s acknowledgment, without having anything to say on the subject to Mrs. Comeau.

Mr. Greig testifies that Mrs. Comeau agreed to pay him twelve per cent interest for advances of money and that he knew she would pay him the balance that Mr. Comeau acknowledged, but he didn’t need the money and was satisfied with the interest.

Mrs. Comeau denies entering into an agreement of that kind with him, and Mr. Hardy testifies that Mrs. Comeau was always ready and willing to pay cash for her plantation supplies after he took charge as overseer. The evidence also shows that she has for years, personally paid expenses, such as labor, materials to repair tenant dwellings, blacksmith bills, carpen-, ter work and other items too numerous to mention.

The lower court in the concluding part of its opinion says:

“The Court is convinced from all the evidence in this case that the plaintiff was in league with the overseer and the husband, to withhold from Mrs. Comeau the fact that they were making these borrows from the plaintiff, which in the opinion of the Court, went into the pocket of the husband and overseer.”

It is not necessary to discuss the case further. We are satisfied that the defendant does not owe the plaintiff, and that his demand was properly rejected.


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    No. 367
    First Circuit
    MENARD v. EDMOND WEIL, INC.
    (December 4, 1928. Opinion and Decree.)
    O. P. Carriere, of New Orleans, and Percy T. Ogden, of Crowley, attorneys for plaintiff, appellant.
    W. J. Carmouche, of Crowley, attorney for defendant, appellee.
   MOUTON, J.

It is alleged by plaintiff that he was employed by defendant company from the 1st of August, 1925, for a term of twelve months,' ending July 31, 1928, at1 a salary of eighteen hundred dollars for the year, payable at the rate of one hundred fifty dollars monthly, plus a bonus at the end of the season upon profits, if any were realized by defendant corporation.

He avers that this contract of employment was by the conduct of the parties actually renewed, reconducted and continued from year to year from the expiration of the first year of the agreement, until the 31st of July, 1928.

He alleges that he discharged his duties faithfully under the terms of the contract from August 1, 1925, without interruption until January 7, 1928, when without ground or legal cause, he was discharged by defendant notwithstanding his immediate protests.

Alleging that under the asserted reconduction, his contract ran until July 31, 1928, and, that having been discharged on January 7, 1928, as averred, he claims he is entitled to one thousand fifty dollars, being the total sum due him for seven months’ salary on the unexpired term of his contract.

The contract was verbal.

Plaintiff testifies that the contract was entered into with defendant corporation in the early part of the month of July, 1925, at the Broussard Drug Store in Rayne, Louisiana. He was asked by whom he was employed.

His answer thereto is as follows:

“No one in particular, in fact the whole Board of Directors, Mr. Broussard, Mr. Holt, Mr. Bass.”

He was then asked what was the nature of this verbal agreement. He said:

“That I would be employed for the cotton season at eighteen hundred dollars per year, payable one hundred and fifty dollars per month, plus a bonus at the end of the season.”

In connection with the foregoing, he explains that when he said a season, he meant a season of twelve months.

The record shows that Edmond Weil, O. Broussard and J. H. Bass were the members of the Board of Directors of defendant corporation at that time.

Bass testifies that he was not present at the Broussard Drug Store when the contract was entered into on the occasion mentioned by plaintiff as hereinabove stated. Plaintiff was therefore mistaken when he referred to Bass as being present, but was correct in stating that Broussard was present and also that Holt was there, although the proof shows that the latter was a stockholder in the corporation, and was not a member of the Board of Directors. Weil, although not mentioned by plaintiff as being there at the time, was, however; present and testifies to the conditions of the contract.

Broussard, owner of the drug store, testifies that it was at this conference that plaintiff was definitely employed; that he was employed at one hundred'fifty dollars per month, and is certain that no mention was made about eighteen hundred dollars for his services per year. Broussard is very positive and unequivocal in his- testimony on this question.

Weil is equally certain that nothing was said then about plaintiff’s engagement at eighteen hundred dollars a year.

Holt, the stockholder, who was also present as hereinabove stated, says plaintiff’s salary was to he one hundred fifty dollars per month, and that nothing was said about his employment being by the year, at eighteen hundred dollars.

The testimony of the plaintiff that his employment was by the year at eighteen hundred dollars for thát period of time is flatly contradicted by the members of the Board of Directors of defendant corporation as shown by their positive testimony, and by that of Holt, a stockholder therein.

As plaintiff testified he had not been employed by any one “in particular,” hut by the whole Board of Directors, whose members unequivocally testify that he was employed by the month and not by the year, and in direct contradiction of his testimony on the subject, the inevitable .conclusion is that plaintiff has failed to carry the burden of proof on this, the vital issue in the case, and as a matter of fact, defendant corporation has shown by a preponderance of the evidence, that no such agreement as was alleged by plaintiff was ever entered into.

In order, we presume, to overcome this damaging testimony, plaintiff claims that he was induced by Weil, president of defendant corporation, to leave a lucrative position he had with the Hibernia Bank, and to take the position of bookkeeper,cashier, and to run the office in defendant company, at an annual salary of eighteen hundred dollars, as before stated

Weil says he told plaintiff if he took the position offered he would get in a business which in the future would be better for'him than the work he was then doing on a salary in the Hibernia Bank. Weil denies, however, that he at any time said to plaintiff his employment, if he accepted his offer, would be for a season or by the year at eighteen hundred dollars. This evidence of Weil is corroborated by the fact that the contract when entered into at the drug store, was conditioned on a monthly and not on an annual salary. Besides, the record shows that plaintiff’s main employment was as bookkeeper, that he was an office man, and that for this character of employment the engagements by defendant company were invariably by the month and not by the year.

A corroborating circumstance that these office engagements were for monthly terms instead of annual, appears from the fact that when plaintiff was discharged, the other employees in the office force were likewise dismissed from further service.

Plaintiff said also that in addition to the eighteen hundred dollars yearly consideration for his employment, he had been promised a bonus at the end of the season.

It is not denied by defendant that a bonus was promised, upon the expected profits of the venture which, however, never materialized. It is frankly admitted that this promise was made by defendant, but it is shown in connection with this admission, that bonuses were usually promised to its other employees to be awarded at the end of the fiscal year, .always, however, with the understanding, if profits were realized. The bonus so offered finds therefore full explanation in the light of defendant’s evidence, and leaves no room for the inference that the bonus could impress the employment as a seasonal one, in character.

After considering the evidence from every angle the conclusion is irresistible that the contract was not by the year, but was by the month at one hundred and fifty dollars.

As no contract was originally entered into August 1, 1925, by the year, as alleged by plaintiff, no agreement of that character ever existed. Having no existence, its renewai or reconduction was a legal impossibility. Hence, there is no foundation for the demand which is grounded on the allegation that plaintiff was discharged from service in violation of his agreement with defendant corporation, and is entitled to one' thousand fifty dollars for the unexpired period of the contract alleged as ending on July 31, 1928, under the asserted renewal or reconduction.

This view .of the case disposes of the demand adversely to the claims of the plaintiff, and renders unnecessary any reference to the decisions cited by counsel which can have no possible application the reasoning upon which the contest herein is determined.

The main demand being settled in the manner above stated, the next and last question submitted is as to whether or not plaintiff is entitled to the thirty dollars decreed below in his favor.

Plaintiff, as we have stated, was employed by the month at the rate of one hundred fifty dollars. He was discharged, defendant contends, in December, 1927, and was given a check for two hundred twenty-five dollars in payment of his salary to the 31st of that month. This payment was made as appears by the check in the record.

Weil testifies that plaintiff had been discharged ¡prior to his trip to New Orleans, for the Christmas holidays. Weil says as plaintiff was leaving on this trip, he told him, if he could do something for him he would be glad to do so; that subsequently, having learned from Broussard that the Stam Sheele Mfg. Company was looking for a bookkeeper, he wrote plaintiff a personal letter informing him of that fact. The letter is in the record telling plaintiff that Stam Sheele Company was in need of a bookkeeper; and expressing the hope that plaintiff would get the place. If plaintiff had not been discharged there would have been no reason for such a letter which confirms the testimony of Weil that plaintiff had been dismissed from further service. Plaintiff denies that he was discharged in December, 1927, but the preponderance of the evidence supports the testimony of Weil on this question, and authorizes the conclusion that' his discharge was to take effect on January 1, 1928.

It is shown that after he returned he worked on the books until January 7, 1928. There is no proof that his contract by the month was renewed for January, 1928 It seems that he was merely' permited to balance his books and worked with that object in view until January 7, 1928.

The Court allowed him thirty dollars, we presume, on a quantum meruit, which although not claimed, was proved without objection, thus enlarging the pleadings, and sustaining the legality of the decree for that sum, which we are not disposed to disturb.