author: JANVIER, J. WESTEB.FIELD, J.,

text:
    No. 11,199
    Orleans
    MIDDLETON v. NATAL
    (October 29, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    (January 29, 1929. Writ of Certiorari and Review Denied by Supreme Court.) '
    Chas. J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellee.
    Alex W. Swords, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sued defendant for $618.75 with 6% interest from October 23, 1925, until paid, together with attorney’s fees at 10% on the whole amount claimed to be due.

The suit is based on a note dated October 23, 1925, payable October 23, 1926, for the sum of $825.00, and on which $206.25 had been paid on account.

Defendant answered, admitting, the execution of the note and the payment on account and admitting also, the payment in cash at the time of the execution of the note of $275.00, but denied his liability to pay the balance, setting up as a defense that the note was given in connection with an agreement made between himself and the plaintiff, which agreement, we now set forth in full:

AGREEMENT FOR DEED.

This AGREEMENT, Made and entered into this twenty-third day of October, A. D., 1925, by and between F. A. Middleton, of New Orleans, La., Party of the First Part, and D. Natal of New Orleans, La. Party of the Second Part.

WITNESSETH, That if the Party of the Second Part shall first make the payments and perform the covenants hereinafter mentioned on his part to be kept and performed by said Second Party, the said Party of the First Part hereby covenants and agrees to convey and assure unto the said Party of the Second Part ________________________ free and clear of all encumbrances whatsoever, except taxes, assessments, and impositions levied after the date hereof, any public rights in any highway adjacent to said premises or zoning or restrictions by public authority, by a good and sufficient warranty deed, accompanied by a merchantable abstract of title or merchantable copy thereof, all that certain lot, piece or parcel of land situated in the County of Orange, State of Florida, and described as follows, to-wit:

Lots 4-5, Block C, of Valencia Park, according to plat thereof recorded in Plat Book —, Page —, Records of Orange County, Florida.

And the said Party of the Second Part covenants and agrees to pay to said party of the First Part, at 505 Canal Commercial Bank Building, New Orleans, La., the sum of ELEVEN HUNDRED ($1100.00) Dollars, lawful money of the United States of America, in manner following: that is to say, $275.00, Two Hundred Seventy-Five Dollars cash, the receipt whereof is by execution and delivery of this contract acknowledged, and the balance of EIGHT HUNDRED TWENTY-FIVE ($825.00) Dollars, as follows: said party of the-second part has furnished a certain note due October 23rd, 1926, upon which, said note the said party of the second part agrees to pay on the 23rd day of each month, beginning November 23rd, 1925, the sum of $68.75, and the failure to pay any one of said installments upon said note thirty days after its maturity shall make said note at once due and payable for the full amount.

And the said Party of. the Second Part hereby covenants to make such payments of principal . and interest when the same shall by the terms hereof become due and payable, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon the premises herein-before described after the date hereof.

And it is further covenanted and agreed by and between the parties hereto that in the event of the failure of the said Party of the Second Part to make either of the payments of principal or interest, or any part thereof, or to perform any other covenant on the part of the Party of the Second Part hereby entered into, and by the Second Party to be kept and performed, for the period or space of thirty days, then the Party of the First Part may at its option and without notice of any kind whatsoever immediately declare all principal and interest due hereunder, as immediately due and payable, without notice except such as may be, required by law; and in the event of any litigation arising from the default of the said Party of the Second Part, the said Party of the Second Part agrees to pay all cost of such proceedings, including as a part of such cos© a reasonable attorney’s fee.

The above described property is sold, under and subject, nevertheless, to the following conditions and restrictions, the acceptance of which form a part of the valuable considerations for this conveyance, to-wit:

First: That the above described lot is hereby designated as a residence lot, and that no building shall be erected upon the front part of the above described premises which shall cost less than $4,000. All such buildings shall be painted within thirty (30) days after erection, and shall be kept neatly painted.

Second: That no building shall be erected upon any part of the above described premises so that any portion thereof . shall be nearer than eighteen (18) feet to the front street property line of said premises; nor nearer than ten (10) feet to the side property line where any street constitutes said property line; or nearer than five (5) feet to any other inside property line.

Third: That there is hereby reserved over, under and/or- across the rear on the back end of the above described property, an easement five (5) feet in width, for the purpose of constructing and maintaining sewer mains, water mains, gas mains, and/or electric light or telephone conduits, and a building shall never be erected or encroach upon any portion of said easement or reservation.'

Fourth: That septic tanks of general design approved by the Florida State Board of Health, shall be erected, constructed and maintained on such property by the party of the second part, his heirs or assigns, of sufficient capacity to take care of the sewerage and waste of the building or buildings erected thereon.

Fifth: That the said party of the second part, his heirs and assigns, are restricted and prohibited for the period of ninety-nine years from the date hereof from selling, conveying, leasing, letting or otherwise granting the said described property or any interest or use therein or thereof to any person or persons other than Whites or Caucasians.

IN WITNESS WHEREOF, The parties hereto have hereunto set their hands and seals the day of year first above written.

Signed, sealed and delivered in the presence of:

Signed M. Middleton.

Signed F. A. Middleton (Seal)

Signed D. Natal (Seal)

The defendant contends that this agreement contains the potestative condition.

The part of the contract to which our attention is particularly directed reads as follows:

“That if the party of the Second Part shall first make the payments and perform the covenants hereinafter mentioned on his part to be kept and performed by said Second Party, the said Party of the First Part hereby covenants and agrees to convey and assure unto the said Party of the Second Part, etc.”

It is argued that plaintiff is in no manner bound unless and until defendant shall have first paid the full amount of the note; that until that time plaintiff was and is free to do with the property as he may wish.

True enough, he was in no manner bound to deliver the property to defendant unless and until the note was paid, but in the meantime and pending that payment, defendant was absolutely bound to retain title to and possession of the property, so that he would be in position to deliver title and possession thereof upon payment of the note, or to respond in damages in the event of his failure to do so.

This is plainly different from the case where one person says to another: “If you pay me so much money by a certain time, I will sell you my property.” In such a ease neither is obligated in any way. But in the case before us the parties went beyond that stage. Middleton said to Natal: “If you pay me $1,100.00 by next October 23rd, I will deliver you the title to my property.” If the negotiations had ended at that point, there would have been no contract. But they did not stop there. Natal answered: “I will take the property at that price and here is my note evidencing my obligation to pay, here is my payment on account, and here is our contract.” In other words, the offer or option was closed by acceptance, by payment on account and by execution of a note for the balance of the purchase price. From this point either party could maintain an action for specific performance or for damages.

Our attention is called to Barber Asphalt Paving Company vs. St. Louis Cypress Company, 121 La. 152, 46 So. 193, in which it was said: “A so called conditional sale, or sale by which the vendee is to become unconditionally bound for the price and the vendor is to continue to be the owner of the property, until the price is paid, is not possible under the laws of this State.”

In the case presented, that situation does not exist, as the parties have bound themselves, mutually — one to buy, the other to sell; each is unconditionally obligated. So far as this case is concerned the Barber case is authority merely for the proposition that in cases involving sales or proposed sales, the promise or obligation on one side must be of eqiual weight with the promise or obligation on the other;. that is to say, you cannot have a promise to sell on one side and a complete purchase on the other. A promise to sell must be balanced by a promise to buy and a purchase must be balanced by a sale.

We do not believe that the contract before us should be construed as a conditional sale, but rather as an accepted offer or option. To use the very language of the Court in the Barber Asphalt case: “A and B may agree that if A pays B so much money by such a day, A will become owner of the property. But such an agreement is not a contract; it is not binding upon either party. If A wishes to make it binding upon B, he must buy from B an option. If the parties bind themselves mutually to buy and sell, there is a promise of sale.” . As Judge Provostj said in that case, “If A and B agree that if A pays B so much money by such a date A will become the owner of the property, that is not a contract.” But to follow his reasoning, if A says I will pay you so much money and here is a payment on account and here is my note for the balance payable on that date, when B accepts the payment on account and the note for the balance, each becomes unconditionally bound and the potestative conditon, if it ever existed, is superceded by a binding unconditional agreement.

We cannot agree with defendant that the case of Heeb vs. Codifer and Bonnabel, 162 La. 139, 110 So. 178, is an authority for the proposition but these “bond for deed” contracts are void or voidable as containing the potestative condition. On the contrary that case and many others recognize the validity and binding effects of such contracts. The point involved in the Heeb vs. Codifer, etc., case and in several others was what was the rights of the parties against each other after a breach?

As to tender we believe that plaintiff has done all that could be required of him. He cannot be expected to deliver title, without receiving payment any more than he could expect payment without delivering title. The one is as necessary as the other and neither could be said to be required to be performed first. Defendant has all along indicated an unwillingness to take title and rejected it when it was tendered in open court.

We are constrained to suggest that the result may have been different had the value of Florida land in recent years gone up instead of down.

For these reasons it is ordered, adjudged and decreed that the judgment appealed from be affirmed at the cost of appellant.

WESTEB.FIELD, J.,

dissenting.

As I see it this case can not be distinguished in principle from that of Barber Asphalt Paving Company vs. St. Louis Cypress Company, 121 La. 152, 46 So. 193. In the cited case the Court, after observing that parties were free to make such contracts as they pleased but not impossible contracts and that in this State a mortgage can not be created on movable property (prior to adoption of chattel mortgage act) and that they can not in any state, make a sale which shall not transfer ownership or make a vendee responsible for the price before there was a sale, or make a contract without mutuality of obligation, held on page 167 (46 So. 198):

“And it is for this last reason that the present contract cannot be enforced as a mere innominate contract. Unless the one party transfers the things, there is nothing for which the other party can bind himself to pay money. The one obligation is the juridical cause of the other. If the one party merely promises to sell, the other cannot actually buy, but can only promise to buy; and, so long as he does not actually buy, he cannot owe money. True, our Code says (article 2462) that a promise of sale amounts to a sale; but, by a settled jurisprudence, this means no more than that the contract is susceptible of specific enforcement. Girault vs. Feucht, 117 La. 276, 41 South. 572. It does not mean that the buyer becomes owner of the property, or debtor for the price. Baldwin vs. Morey, 41 La. Ann. 1105, 6 South. 796, and cases there cited. In a case like the present, the owner either parts with the ownership, i. e., makes a sale; or he promises to part with it upon payment of the price, i. e., makes a promise of sale. In the former event he ceases to be owner, since a sale is a transfer of ownership; in the latter event, he does not cease to be owner, but the other party does not become his debtor for money — because the corresponding obligation to a promise to sell is a promise to buy; and so long as one merely promises to buy, the only obligation incurred is that of having to buy; and not that of having bought, or, in other words, of having to pay money. Of course, one can stipulate a money penalty by way of sanction to a promise to buy; but such a stipulation would be an accessory contract to the promise to buy — that is to say, would be an entirely different contract from the one entered into in the present case. Of course, also, one can sell, or buy, an option to buy; but, again we say, this would be a different kind of contract from the one involved in the instant case.”

The case before us presents all of the features referred to by Justice Provosty in the cited case as objectionable. There is here no sale but only an agreement to buy and sell which unconditionally binds the vendee and only conditionally obligates the vendor. The note sued on represents a part of the purchase price of the property without there having been any sale, the plaintiff vendor still retaining title to the property.

For the above reasons I respectfully dissent.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,458
    Orleans
    MARITIME & MERCHANTS PROTECTIVE CO., INC., v. CRESCENT PAPER BOX FACTORY, INC.
    (November 13, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    (January 29, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      St. Clair Adams and Lestie Moses, ofv New Orleans, attorneys for plaintiff, appellee.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The plaintiff company is a detective agency engaged in the business of furnishing guards, watchmen, and special officers to protect and guard real and pex-sonal property from fire, theft and depredation. It brings this suit against defendant upon an alleged verbal contract, claiming $582.50 for the services of a night watchman, supplied by it to watch and guard a plant, located at St. Louis and N. Alexander Streets, in the City of New Orleans.

Defendant filed the equivalent of a general denial, in articulate form.

It is admitted that the services, for which compensation is claimed in this suit, were rendered by plaintiff, and, the reasonableness of the amount charged therefor is not seriously disputed.

The defense consists of a denial of the existence of the alleged contract between the plaintiff and defendant.

There was judgment below in plaintiff’s favor and defendant has appealed.

The record establishes the fact that the building located at St. Louis and N. Alexander Streets, protected by plaintiff’s service, was occupied by the New Orleans Corrugated Fibre Box Company, the Hardin Bag Company and the Crescent Paper Box Factory, Inc. (defendant herein) in common; that for several years prior to April 1, 1922, the plaintiff corporation had furnished the services of a night watchman, under a contract with the New Orleans Corrugated Fibre Box Company, the Hardin Bag Company and the Crescent Paper Box Factory, Inc., paying one-half of the expense of such service to the New Orleans Corrugated Fibre Box Company, in the proportion of 30% by the Hardin Bag Company and 20% by the defendant. On July 31, 1923, this service was discontinued, and written notice to that effect given the plaintiff company. Following the receipt of this letter, or on August 3, 1923, Mr. Guidry, Superintendent of the plaintiff corporation, called upon Mr. Harold M. Levy, the Secretary-Treasurer of the defendant company, at his place of business on the corner of Constance and Orange Streets, to discuss with him the service which had been discontinued. It appears that defendant maintains its principal establishment at Constance and Orange Streets, and its lesser establishment in the building which plaintiff was guarding.

Mr. Guidry testified that on the occasion of the visit referred to, Mr. Levy authorized him to continue the service, saying that he (Levy) would see that the bill was paid. It is this conversation that plaintiff relies upon as constituting a verbal contract. Levy admitted the statement imputed to him by Guidry, but, in explanation, declared that he was speaking as an officer of the New Orleans Corrugated Fibre Box Company. (Mr. Levy was also vice-president of that company.) He further stated that the letter, discontinuing plaintiff’s services, under its contract with the New Orleans Corrugated Fibre Box Company, was written by the president of that corporation, Mr. Ohnstein, and that, he was in ignorance of the fact that it had been written, or sent, until sometime in February or March, 1924, after the final discontinuance of the service by plaintiff because defendant’s failure to pay. Mr. Levy insists that in everything he had say to Mr. Guidry, at that time, he was acting as an officer of the New Orleans Corrugated Fibre Box Company, and not as an officer of the Crescent Paper Box Factory, Inc., and in complete ignorance of the action of the president of the former concern in discontinuing the service. In support of his position, he points to the fact, that he instructed plaintiff to bill the New Orleans Corrugated Fibre Box Company for its service and that every bill rendered by the plaintiff corporation, was rendered to that company, until after the service had been finally discontinued.

Mr. Guidry, plaintiff’s superintendent, explains the sending of the bills in this manner on the ground that, at all times, subsequent to the receipt of the written notice discontinuing the service by the New Orleans Corrugated Fibre Box Company, he considered the defendant as plaintiff’s debtor, by reason of Mr. Levy’s assurances that he would pay the bill, and would have sent the bill anywhere Mr. Levy directed. In support of this latter statement, he said, that following the receipt of Mr. Ohnstein’s letter, he called his watchman to the phone for the purpose of having him return to plaintiff’s office and terminate the watching contract, as instructed by the New Orleans Corrugated Fibre Box Company; that his watchman was prevented from leaving the premises of the defendant company by defendant’s foreman, who, in the presence of the watchman, phoned Mr. Levy and reported to the watchman that Mr. Levy had instructed him to say that he (the watchman) should continue to watch the plant and that he (Mr. Levy) would see that the bill was paid. It is also in evidence, that, upon several occasions, such as Labor Day, Thanksgiving, Christmas and New Tear, the defendant’s foreman requested that a day watchman be sent to the plant, the watchman regularly supplied being a night watchman.

Mr. Dan’s Lehon, president of the plaintiff company, testified that sometime in December, 1923, he called upon Mr. Levy to discuss the watching service and the failure to pay the bills; that on that occasion, Mr. Levy- stated that there had been some difficulty with Mr. Ohnstein, president of the New Orleans Corrugated Fibre Box Company, which he referred to as a “family row,” but, that he, Mr. Levy, would see that plaintiff’s bill was paid in full, and to continue sending the bill to the New Orleans Corrugated Fibre Box Company and he would straighten the thing out.

It is defendant’s contention that it, at no time, had any contract with the plaintiff company and that whatever Mr. Levy did, after the discontinuance of the contract with the New Orleans Corrugated Fibre Bo'x Company, he did in ignorance of the fact that the contract had been terminated, and, as an officer of the New Orleans Corrugated Fibre Box Company, and, not of the Crescent Paper Box Factory, Inc. It is admitted that the services were rendered by plaintiff, and that defendant had the advantage of them, though it is insisted that it would be manifestly inequitable to hold defendant for the entire charge, when previously, under its arrangement with the New Orleans Corrugated Fibre Box Company, the same service had been obtained for 20% of the cost. It is argued that plaintiff has no claim against any one,' because the only contract it held was with the New Orleans Corrugated Fibre Box Company, and that contract had been terminated prior to the service for which this suit is brought. In other words, plaintiff simply made a costly mistake.

Whatever may be plaintiff’s difficulty, it is entirely due to the fact that Mr. Levy was the vice-president of one corporation and the secretary-treasurer of another, at one and the same time. Perhaps, plaintiff should have insisted upon a written contract with Mr. Levy, and it would then have appeared in what capacity he was acting. Such course would undoubtedly have been more prudent than a reliance upon the conversation between Mr. Guidry and Mr. Levy, especially in view of the circumstances of this case. But Mr. Guidry had received a letter from the New Orleans Corrugated Fibre Box Company, discontinuing and terminating the contract, which plaintiff had with that company, and was justified in presuming that Mr. Levy, a vice-president of that corporation, was familiar with the fact that such notice had been given. Consequently it seems to us, that Mr. Guidry might fairly have presumed that he was dealing with Mr. Levy in his capacity as secretary-treasurer of the defendant company and that it was in that capacity that Mr. Levy instructed him to continue the watching service.

This view finds support by the incident which occurred at the plant at the time the watchman was recalled, following the receipt of the order discontinuing the service, when the foreman, claiming to act upon the authority of Mr. Levy, insisted that the watchman remain upon the premises. It is further supported by the action of the foreman in ordering day watchman service during the holidays, Christmas, New Year, etc.

It must be conceded that the case is not free from doubt, and in reaching the conclusion we have, some consideration has been given to the fact that the defendant company has benefited by the services of plaintiff, for which plaintiff was obliged to pay, upon the principle that one. should not enrich himself at the expense of another and, also to the fact that all the confusion that has arisen in this case has been due to Mr. Levy’s ignorance of Mr. Ohnstein’s action, under circumstances which do not seem to us, to acquit him, and through him, his company, of responsibility.

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


author: REYNOLDS, J.

text:
    No. 3452
    Second Circuit
    ADAMS v. TOWN OF RUSTON
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    (February 11, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Elder, Thompson and Digby, of Ruston, attorneys for plaintiff, appellee.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

The plaintiff, claiming to be the owner of the south sixty feet of lot four of block fifty-eight of the Dabney subdivision to the Town of Ruston, in Lincoln Parish, Louisiana, and—

“That the town of Ruston has recently interfered with your petitioner’s ownership and possession of the said property by going thereupon, through its agents and employees, and has erected a street thereon and has gravelled the same and laid a water main and is holding the same out to the public as a street in the said town, when in truth and in fact the property has never been dedicated to the public on is solely owned by your petitioner by deeds of record.”

Plaintiff prayed that he be recognized as the owner of the land and that defendant be restrained from interfering with his possession thereof.

A temporary restraining order was issued.

Defendant filed an exception of no right or cause of action and also pleaded the prescription of two and ten years in bar of plaintiff’s right of action.

The temporary restraining order was thereupon recalled.

The defendant answered that:

“Defendant admits that it has erected a street, gravelled the same, laid water mains therein, and holds the same out to the public as a street, along and abutting the south boundary of block 58 of Dabney’s Subdivision extending from Vienna street to Trenton street and beyond in both directions, forming a continuous thoroughfare; and it avers that said street has been so constructed, held by the town of Ruston, used as a street and occupied by improved roadway ditches, sidewalks, water and sewer pipes, telephone and electric light poles and lines, and other like works, for more than thirty years prior to filing this suit continuously and without interruption.”
“Further answering, defendant avers that said street does not encroach upon any land embraced in Dabney’s subdivision; and if it should appear that any portion of the Government subdivisions of land intended to be embraced in Dabney’s subdivision extend into or upon said street, defendant shows that said street was located and established as at present when Dabney’s subdivision was platted and surveyed, and long prior thereto, and the northern boundary of said street has been the recognized and established southern boundary of Dabney’s subdivision and of the Government subdivisions composing Dabney’s subdivision for more than thirty years prior to the filing of this suit.
“It further avers that if any portion of the street includes land originally embraced in the tracts composing Dabney’s subdivision, that portion was long since dedicated to public use: as a street by plaintiff’s predecessors in title, and the dedication thereof has been recognized and ratified by plaintiff, who has sold property adjacent thereto and abutting thereon with reference to and declaring the same to be a street, which acts and declarations by plaintiff, of themselves constitute dedication and estop him from claiming otherwise.”

On these issues the case was tried and there was judgment recognizing plaintiff to be the owner of the property in controversy and ordering defendant to restore possession of it to him and the defendant appealed.

OPINION

The only question that requires consideration in this case is (plaintiff’s right to sue for the recovery of a portion of ground actually used by defendant as a public street, gravelled by and in the possession of defendant, and held and worked by it as a public street for more than twenty years, to the knowledge of the owners.

The evidence shows that the land sued for has been used as a public road for forty years or more (testimony of Roane) and that it had been worked as one of the public streets of the Town of Ruston for more than twenty years (testimony of Hardin).

At the time plaintiff purchased the land it was being used by the town as a public street and had been so used to the knowledge of the authors of his title for many years prior thereto; and the Town of Ruston then already had, to the knowledge of the authors of his title, taken possession of the land and gravelled it and laid water pipes under it and held it out to the public as a public highway.

Under these circumstances, plaintiff’s only remedy, if he had one, was to sue the town for damages or for the value of the land occupied as a street. The town could not be required to deliver to the plaintiff actual possession of one of its thoroughfares.

McCutcheon vs. T. & P. Ry. Co., 118 La. 436, 43 So. 42; Bomar vs. City of Baton Rouge, 162 La. 344, 110 So. 497; City of Lafayette vs. Doucet, 148 La. 164, 86 So. 724.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the demands of the plaintiff be rejected and his suit dismissed at his cost.


text:
    No. 10,490
    Orleans
    CARRERE’S SONS v. EDSTROM
    (December 19, 1928. Opinion and Decree.)

      J. C. Henrio,ues, of New Orleans, attorney for plaintiff, appellee.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a real estate firm, sues for a commission in the sum of $1,500.00. There was judgment as prayed for and defendant has appealed.

The defendant owned a piece of property known as No. 209 South Rampart Street. She desired to obtain a tenant, who would assume many of the obligations usually borne by the lessor, as part of the consideration of the lease. After an extended conference between a representative 'of the plaintiff firm and defendant, the following instrument was confected:

“New Orleans, June 26th, 1925.
“I hereby authorize E. A. Carrere Sons to lease for me the property, 209 S. Rampart St. for a term of twenty-five years, beginning October 1st, 1925, and expiring September 30th, 1950, on the following terms.
“The rent shall be payable monthly, in advance, and shall be at the rate of $125.00 per month. In addition it is understood and agreed that the lessee shall pay all the City and State taxes assessed against this property during the period of the lease and the lessee shall further carry, at his expense, fire insurance covering the full value of the property, and the lessee shall further carry, at his expense, tornado insurance at 50% of the amount of the fire insurance.
“The lessee shall have the privilege of subleasing the premises, in whole or in part, providing only that the lessor shall have the privilege of taking the property back on sub-lease at the same price and on the same terms as any bona fide offer which the lessee may have received from some one else.
“It is understood that the lessee shall take the premises in their present condition and I shall not be expected to spend any money for any cause whatever during the period of the lease, which shall include the roof.
“I agree to pay to E. A. Carrere Sons, the usual commission of 4% upon the total amount of the lease which shall be payable at the rate of $50.00 per month without interest until the full amount has been paid.
“The fire and tornado insurance shall be made payable to the lessor.
“I agree to sign the form- of lease as adopted by the New Orleans Real Estate Agents Association.
“This agreement is good and binding for ten days from this date.
“6/26/25 Mrs. A. Alson,
“C. R. Alson.”

Plaintiff, armed with the authority conferred in the foregoing document, and learning that one John Albion Saxton was seeking a location for a hardware store, obtained Mr. Saxton’s acceptance of the terms of the document through another real estate agent by the name of Oliver L. Clark, in the following language:

“June 26, 1925.
“Oliver L. Clark, Esq., Audubon Bldg.
“You are hereby authorized to accept as agent on my behalf, the above authorization of lease property 209 S. Rampart St., of Mrs. A. Alson, and C. R. Alson, for the period and terms indicated. Please prepare lease immediately. No commission is due from me on this transaction.
“It will probably be taken in my name personally.
“John Albion Saxton (Signed)
“1021 Canal.
“6/26/25. I accept the above lease.
“Oliver L. Clark.” (Signed.!

It will be observed that the parties contemplated a written lease, which was to be prepared at once in the form adopted by the New Orleans Real Estate Agents Association, but, for reasons which we will hereafter discuss, no lease was ever signed.

Defendant admits her signature to the document, but insists that the failure to execute a written lease renders all the efforts to that end abortive, the contract being inchoate, and either party being privileged to recede before signing, citing: Larrousini vs. Werlein, 52 La. Ann. 424, 27 So. 89, 78 Am. St. Rep. 350; Wolff vs. Mitchell, Craig & Co., 24 La. 433; Sig. Haas & Sons vs. Bernhardt’s et al., 144 La. 927, 81 So. 402. The failure to effect the lease is relied upon as absolving defendant from all obligation to her broker for the agreed commission. Lewis vs. Manson, 132 La. 816, 61 So. 835; Wittenberg vs. Davis, 3 La. App. 244.

In order to entitle a broker to a commission, he must, under the circumstances which obtain in a case like the present, produce a tenant who is able and willing to lease the property upon terms satisfactory to the owner. The failure to execute a formal lease, even when required by agreement between the parties, will not necessarily deprive the agent of his commission. Maloney et al. vs. Aschaffenburg, 143 La. 509, 78 So. 761; McWilliams vs. Stackhouse, 1 La. App. 253; Dauterive vs. West India Transportation Corp., 3 La. App. 319; Loyacano vs. Succession of Thompson, 4 Orl. App. 345; Wise-Miller vs. Catalanatto, 8 La. App. 186.

Plaintiff’s recovery depends upon whether the failure to execute the lease contract was due to the fault of defendant, for, if the defendant made it impossible for the tenant — procured by the broker— to go forward with his undertaking under the agreement to lease, it is obvious that the broker cannot be charged with responsibility for the failure of the transaction which his services were engaged to consummate.

The record convinces us that Mrs, Alson became dissatisfied with the agreement almost immediately after she had signed it. She gives as her reason for her refusal to sign the lease, when it was presented to her with the signature of the tenant, that it was not “a Real Estate Board’s lease,” because “one-half the printed part was rubbed out and I felt that was unjust to me,” and further, that the clause in the lease with reference to sub-letting the property was different from that in the agreement relating to that subject; that she thought she was “signing papers for them to work on because how could I expect these people to go to the trouble of making plans without something to work on.” In speaking of her agreement, she said, “I agreed if they would furnish me with blueprints, specifications and security, I would let them have it for twenty-five years, and this was never done,” and “I wanted the specifications, blue-print and security and I could not accept any other lease unless I got them for such a long time.” Notwithstanding all this emphasis upon plans and specifications, there is absolutely nothing in the agreement which suggests this proposition as 'a condition of the lease, or otherwise. Finally, when all of Mrs. Alson’s objections had apparently been met, some changes conceded to her tenant, and the lease in final shape, and it was believed, satisfactory to Mrs. Alson, she withheld her signature because someone suggested the necessity of her husband signing the contract. She thereafter steadfastly refused to sign any lease, without giving any reasons whatever.

It is apparent that Mrs. Alson simply changed her mind. For what reason we are not informed, nor is it important for the determination of the issues presented by this case. She had a perfect right to recede from the contract at any time prior to its formal execution, as provided in the agreement to lease the property, but the exercise of that privilege was burdened ■with the responsibility for the compensation earned by plaintiff, in her service.

We believe the judgment of the trial court to be correct, and, for the reasons assigned, it is affirmed.


text:
    No. 3437
    Second Circuit
    ALEXANDRER v. TOWN OF RUSTON
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    Crow and Coleman, of Shreveport, attorneys for plaintiff, appellant.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued defendant for $350.00, damages for alleged trespass.

She alleged that she was the owner and in possession of Lots 2 and 3 of Block 119 of Calcóte Addition to the Town of Ruston, Louisiana, and that on or about May 18th to May 20th, 1927, the Town of Ruston, acting through its Mayor and town council, went upon her property without her knowledge, permission, consent or authorization and tore down the fences on and around her said property, particularly on that portion of said property described as Lot 2 of Block 119 of said Calcóte Addition to the Town of Ruston, and forcibly made excavations on her said property through her yard, garden and other portions of her said premises, and cut a large ditch and laid a large sewer pipe across said property for a distance of approximately 325 feet, entailing great damage upon her and to her property.

And she itemized her alleged damages as follows:

“That the land actually appropriated is worth the sum of $100.00; that the injury to her said property in looks and appearance and the lessening of the value thereof amounts to $150.00; and the lessening of the rental value and tearing down of the fences of petitioner has caused her damages'.amounting to $100.00; making a total of $350.00 that the said town of Ruston is justly and legally due petitioner.”

Defendant denied the allegations of the petition.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands as in case of non-suit and she appealed.

OPINION

Much evidence, documentary and parol, was introduced on the trial, but none of it tends to prove any of the damages alleged. Not a single witness testified that damage to any value had been done to plaintiff’s property. The burden was on her to establish the allegations of her petition both on the fact and the amount of the damage, but she utterly failed to show that she had been damaged even at all. The judgment of the District Court dismissing her action as in case of non-suit was therefore correct and accordingly is affirmed.


author: WESTERFIELD, J. JANVIER, Judge ad hoc,

text:
    No. 11,194
    Orleans
    ZELLER v. LOUISIANA CYPRESS LUMBER CO., LTD.
    (October 29, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    (January 29, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Howell, Wortham & Martin, of New Orleans, attorneys for plaintiff, appellant.
    Dart and Dart, Carroll and Carroll, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Willis Zeller, a boy sixteen years of age, was accidentally killed in the course of his employment on the thirteenth day of October, 1921, in the Parish of St. James, and near the line dividing the Parish of St. James from the Parish of St. John the Baptist. The father of the boy, Ozanne Zeller, brought suit in the Parish of St. John the Baptist against the Louisiana Cypress Lumber Company, Ltd., and George Cousin, claiming- compensation in his own behalf and in behalf of his minor children. -

The Louisiana' Cypress Lumber Company, Ltd., filed an exception to the jurisdiction of the court ratione personae, upon the ground that its domicile was in the parish of Jefferson and it had no agent in the Parish of St. John the' Baptist on whom process could be served. The lumber company also filed an exception of want of authority in plaintiff to institute the suit and of no cause of action and vagueness. George Cousin filed his same exceptions urged by his co-defendant, with the addition of an exception of prescription of one. year.

All exceptions were overruled and answers were filed denying liability, the defendant, Louisiana Cypress Lumber Company, Ltd., praying for judgment against its co-defendant, George Cousin, in the event that it should be held liable for such sum as it may be condemned by such judgment to pay.

The exception to the jurisdiction was submitted to the court with the merits of the case and plaintiff insists that in so doing the defendants have voluntarily submitted themselves to the jurisdiction of the court, citing: Tupery vs. Edmondson, 32 La. Ann. 1146; Iddle vs. Hamler Boiler Co., 132 La. 476, 61 So. 532; Bank vs. Johnson, 130 La. 288, 57 So. 930; Andrews vs. Sheehy, 125 La. 222, 51 So. 122; Martel vs. Block, 154 La. 863, 98 So. 398, and authorities there cited.

Strangely enough, the form of the exception to the jurisdiction seems to have been confused by defendant, for in this court counsel argues this exception as though it had been based upon the fact that the cause of action arose in the Parish of St. James and not in the Parish of St. John the Baptist. However, we. think the authorities cited by plaintiff disposes of this exception.

As to the capacity of Ozanne Zeller to maintain this action, this exception, and the exception of no cause of action will be considered together, for they involve the same contentions and are treated in that manner by counsel for defendant.

Both exceptions were based upon the fact that plaintiff has failed to qualify as tutor of his minor children. Answering this argument, plaintiff directs our attention to subsection “j” of Section 8 of the Compensation Law, which provides:

“Where there is a surviving widow or widower and child or children entitled to compensation, the compensation above described shall be paid to the widow or widower for the common benefit of such widow or widower and child and the appointment of a tutor shall not be necessary. Where there is no surviving parent, payment shall be made to the tutor.”

In reply defendants admit that the plaintiff is a widower but contend that the language of the statute can only be interpreted to mean that a widow or widower need not qualify as tutrix or tutor when the deceased for whose death compensation is claimed was the wife or husband, as the case may be; and that, whereas, in this case, the deceased is the child, the fact that the claimant, his father, is a widower, is immaterial. This argument would be more persuasive were it not for the fact that the subsection referred to, which is found in Section 8 of the Act, as amended by Act 247 of 1920, follows other provisions which enumerate the beneficiaries entitled to compensation, and include the widow, or widower alone, the widow or widower with one or more children, children alone with no widow or widower, and brothers and sisters alone. Besides, the concluding sentence in the paragraph quoted, to the effect that — “where there is no surviving parent, payment shall be made to the duly authorized tutor” — would indicate .that the law- intended to exempt the natural tutor or tutrix from the necessity of qualifying. We see no good reason to compel the father or mother, suing for the death of their child, to qualify as the tutor, and exempt the father or mother from that requirement when suing with the child for the death of husband or wife.

The exception of vagueness, not having been pressed in limine, will not be considered.

The plea of prescription of one year is based upon the fact that the defendant, Cousin, was not served with citation until June 5, 1923, more than one year after the death of Willis Zeller. The appropriate provision of the Compensation Law, Section 31, reads:

“That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred * * * unless within one year after the injury proceedings have been begun as provided in Sections 17 and 18 of this Act.”

Plaintiff’s position in regard to this exception is that under the terms of the quoted section, it is only necessary to begin proceedings, and that citation is not essential, and in the alternative that under R. C. C. 2090, 2097, the service upon any debtor in solido interrupts prescription as, to all. The defendant, Louisiana Cypress Lumber Company, Ltd., having been cited within a year, and this action being in solido against both defendants, it is suffi cient that one of them should have beei served.

Our attention is called to the fact tha' under Section 27 of Act 267 of 1914 the mere filing of a suit against a corporation has the effect of interrupting prescription. Norwood vs. Lake Bisteneau Oil Company, 145 La. 823, 83 So. 25.

As to the necessity of citation to interrupt prescription see Brown vs. Goodpine Lumber Co., 8 La. App. 125.

Before discussing the effect of the filing of suit, or the institution of proceedings, upon the interruption of prescription, or whether citation is necessary in all cases, except in suits against corporations, we will consider the alleged solidary liability of the two defendants, for if defendant Cousin is liable in solido with the other defendant, Article 2097, R. R. C., applies, and prescription has been interrupted as to both defendants. It is contended that the Louisiana Cypress Lumber Company is not liable at all, and that the exception of no cause of action should have been maintained, because, according to the petition, the deceased was at the time of the accident in the exclusive employ of George Cousin, for- whom he was working, and who alone had control over him.

A reference to the petition discloses the fact that it is there alleged, that Cousin was a contractor, employed in getting out timber from the cypress company by means of a skidder, and cable, and that Zeller was working for Cousin, and “incidentally, through the said George Cousin, was working in the employ of the said Louisiana Cypress Lumber Company.” Much is made out of the use of the word “incidentally” by plaintiff’s counsel, the suggestion being that it is practically conceded that the deceased was not in the employ of the Louisiana Cypress Company, in any sense, at the time of his death; and, in the alternative, it is contended that if the petition itself is not conclusive, the record is, and the record is quoted to emphasize the fact that the deceased was an employee of the defendant Cousin, and not of the cypress company.

There can -be no question but what Willis Zeller was injured in the course of his employment by the defendant Cousin, for whom he worked, exclusively. It is also true that Cousin had a contract with the Louisiana Cypress Lumber Company to get logs from the swamp, raft them, and float them in the adjacent bayous to boats belonging to the cypress company for transportation to the lumber mill operated by the cypress company, and that in the execution of this contract with the cypress company, Zeller, as an employee of Cousin, was injured. The compensation law, Section 6, provides:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.”

In the case of Clementine vs. Ritchie, 1 La. App. 296, 99 So. 213, this section of the law was discussed at length. In that case a negro carpenter was employed by a contractor 'by the name of Willis. Willis had a contract with Ritchie for all of the carpenter work necessary on a certain building which Ritchie was constructing, Ritchie being engaged in the business of building and selling houses. The defendant contended that Section 6 of the Compensation Law above referred to did not apply because Willis was not a contractor, but was the owner of the house, which was being erected by Willis, and that the word “principal” used in the act meant “principal contractor” and not one who builds for his own account. The lower court accepted this view but this court found itself unable to adopt it, saying:

“We cannot agree with our brother of the District Court in his opinion in this case. We think this section of the law plainly discloses a purpose to make a principal, who undertakes any work for his own account as a part of his trade, business or occupation, liable for compensation due any employee engaged upon the work. It will be observed that paragraph 2 of the section declares that where the principal is liable under this section, he shall have a cause of action against any person who independently of the section, would have to pay the compensation and that paragraph 4 provides that ‘a principal contractor’ when sued by an employee of a sub-contractor, shall have the right to call such sub-contractor or any intermediate contractor as defendant or co-defendant.
“There is, therefore, two distinct provisions, one giving a principal a right of action against any person who but for this section of the act would be liable and another giving a principal contract or the right to call in any sub-contractor or intermediate contractor, if the word principal referred to principal contractors only, why these two provisions? And, moreover, why not say principal contractor and why use the word ‘principal’ at all? The purpose of the act in this regard is further illustrated by paragraph 3, wherein provision is made permitting injured employee or defendant to sue ‘the contractor instead of the principal.’ ”

We conclude, therefore, on this point, that both defendants are liable in solido and that under the articles of the Civil Code referred to, service of the citation upon one of them is sufficient to interrupt prescription as to both, and accordingly that the plea of prescription was properly overruled.

On the‘merits plaintiff’s right to recover is challenged upon- the ground that there is no proof of dependency. At the time of the death of his son for which compensation is claimed in this suit, the plaintiff was a widower and the father of four minor children, namely, Julius, 15 years of age; Florentine, 12 years of age; Frances, 9 years and Anginette, 5. Plaintiff, who was a laborer, earned about $3.00 a day, and from this meager income maintained himself and his family with difficulty. He was at times compelled to send his children away.from home to live with relatives and friends. When able to maintain a home he rented a house from the Lutcher Cypress Company for $6.00 a month. His son, Willis. Zeller, at the time of his death, was earning $2.00 a day and camping in the Wo'ods near the scene of the logging operation in which he was engaged. It is in evidence that on at least two occasions Willis sent his father small sums of money — at one time, $7.00 and at another time, $18.00. Under the law applicable, dependency to any extent was sufficient to entitle the father to recover: Heinzelman vs. Board, 149 La. 215, 88 So. 798. It is not essential that there should have been any actual contribution to the parent by the child, if the parent be in' ne-" cessitous circumstances. Gregory vs. Stand. Oil Co., 151 La. 228, 91 So. 717. In Cauthorn vs. Cypress Tank Co., 1 La. App. 100, the father, though a small land owner, was permitted to recover for the death of his son who had left the family domicile. See also Nelson vs. Henderson Iron Works, 1 La. App. 332; Hamilton et als. vs. Texas Company, 151 La. 692, 92 So. 301; Rupp vs. Reimann Co., 7 La. App. 635; Hammons vs. Edwards, 6 La. App. 752; Grant vs. La. Sawmill Co., 6 La. App. 673.

We are of opinion that a cause of dependency within the meaning of the act is sufficiently shown by the record. It is not necessary that the plaintiff should have received regular remittances, nor that any actual payments be proved. In plaintiff’s humble station,' any extraordinary misfortune, injury or illness might easily have-made of him a public charge, and in such situation his son could afford the most reasonable expectancy of relief, a contingency properly to be considered. See Gregory vs. Standard Oil Co., 151 La. 228, 91 So. 717.

“ ‘Dependent to any extent’ is a very broad term, and seems to us to include necessary aid furnished for the discharge of any legal obligation, as well as aid re? quired merely in supply the personal wants of the recipients.”

Heinzelman vs. Board, 149 La. 221, 88 So. 798.

There remains' only to be considered the amount, of the award. The deceased was earning at the time' of his death $12.00-per week. Under subsection 2 of Section. 8 of Act 247 of 1920, paragraphs (g) and (k), the father is entitled to 30 per cent of the weekly wage, and to 10 per cent ad-, ditional for each child under eighteen, years of age. For convenience, we adopt; the computation of counsel, which appears-to be correct.

It is ordered that the judgment appealed from be reversed, and it is now ordered that there be judgment in favor of plaintiff, Oz'anne Zelier, and against the Louisiana Cypress Lumber Company, Ltd., and George Cousin, in solido, in the sum of seven and 20/1Ó0 dollars ($7.20), for a period of two hundred eighty-one and two sevenths (281-2/7) weeks, beginning October 14, 1921, amounting to two thousand twenty-five and 25/100 dollars ($2,025.25), and six dollars ($6.00) weekly for eighteen and five-sevenths (18-5/7) weeks, amounting to one hundred twelve and 28/100 dollars ($112.28), with five per .cent (5%) interest on each partial payment from its due date.

It is further ordered that the right of the Louisiana Cypress Lumber Company, Ltd., to claim ^ such amount as it may be obliged to pay under this judgment from George Cousin in appropriate proceedings be reserved.

JANVIER, Judge ad hoc,

concurring.

I concur in the' opinion rendered in this matter solely because the question which to my mind is the all important one, seems to have been settled in the case of Lorenzo Clementine vs. Hugh Ritchie, 1 La. App. 296, 99 So. 213.

If this question were being presented to me now as a novel one, I would not be willing to acquiesce in the doctrine that an owner or principal of a business cannot contract with another 'for the taking over by that other of an independent portion of the main work being done without becoming liable under the compensation law to the employes of that other. I do not believe that any such intention can be found in Section 6, nor any other portion of the act. Section 6 provides in part:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation * *

It seems to me that the words “undertakes to execute any work” mean “contracts" to execute any work.

If it does mean “contracts” to execute any work, it cannot be said to refer to the owner or principal because in such a case he has not contracted to execute, but in fact has contracted to avoid executing. It also seems to me that the sole purpose of this section was to make the main or principal contractor responsible to the employees of his sub-contractors.

If I could distinguish the case of Clementine vs. Ritchie, I would dissent now. While I do not agree with the reasoning of that decision, I do believe firmly in the doctrine of “stare decisis,” and for this reason I concur.


author: JONES, J.

text:
    No. 11,334
    Orleans
    CORKERN v. COWLEY
    (February 11, 1929. Opinion and Decree.)

      Walter F. Marcus, of New Orleans, attorney for plaintiff, appellee.
    H. M. Ansley, of New Orleans, attorney for defendant, appellant.
   JONES, J.

In this case defendant has appealed from a judgment on a promissory note on the ground that the judge of the lower court should have granted him a continuance and an opportunity to present his witnesses upon the trial of the case.

The petition contains the allegations usually found in a suit on a promissory note, and the note itself is brought up in the record.

The defense in this court is based upon Article 3 of defendant’s answer, which reads as follows:

“Further answering Article Two of plaintiff’s petition your respondent shows that your respondent, W. H. Ward and E. E. Lafaye were endorsers on a note of the A. J. Higgins Lumber Co., held by the Interstate Trust and Banking Company. That on the afternoon of April 11th, 1927, the plaintiff in this case, being a member of the firm of Marcus and Corkern, Attorneys-at-law in this City, and representing themselves to be attorneys for the Interstate Trust and Banking Company, called at respondent’s office, 309 Louisiana Building, and informed respondent that there was ten (10%) per cent attorney’s fees due on notes signed jointly by your respondent, and W. H. Ward, and E. E. Lafaye as endorsers on a note of the A. J. Higgins Lumber and Export Company; that said W. H. Ward and E. E. Lafaye were paying one-third of said attorney’s fees, respondent’s share being Four Hundred Sixty Dollars and Twelve Cents ($460.12). That respondent signed said note which was then and there presented by the said plaintiff with the distinct understanding that W. H. Ward and E. E. Lafaye were paying a similar amount and it was only on said statement that said note was signed, and with the further agreement that the amount of said note was to be paid from and out of dividends and monies to be received by respondent from the liquidation of the A. J. Higgins Lumber Co., that had not such agreement been made and had not such representations been made by the plaintiff, respondent would not have executed said note. For the above reasons your respondent is not responsible therefor.”

There was judgment below for plaintiff in the full amount claimed, $460.12, with 8% per annum interest from July 11, 1927.

The record shows that plaintiff in the suit, a member of the law firm of Marcus and Corkern, when placed on the stand under the act, testified in full to all of the circumstances surrounding the giving of the note and wound up by stating most positively that defendant had phoned Mr. Lafaye in his presence before signing the note and that Mr. Lafaye if present, would have so testified.

When the attorney for defendant, on the argument of this case, was asked by one of the judges, if the defense alleged in Article 3 of his answer would have been valid, even had it been proven, he promised to file authorities in support of his contention of its validity but up to this time, has failed to do so.

The record shows that on the day of the trial, defendant was not in the Court when the case was called and that Mr. E. E. Lafaye, whom he asserted was his chief witness was also absent. The trial judge correctly refused to grant a continuance as no subpoena had been issued for Lafaye’s appearance. In his motion for a new trial defendant states that his absence was due to the fact that he had miscalculated the ferry time in coming from Gretna and that he had failed to summon Lafaye as a witness, because he had been told that he was ill.

’ Article 465 of the Code of Practice provides that continuances may be granted if one of the witnesses, who has been summoned in the case has gone away and the party swears that he did not know that such witness would be absent.

In this case no such proof was made and we find no merit in this appeal, on the contrary, we are convinced that the trial judge properly exercised his broad discretion both in going ahead with the trial and later in refusing a new trial.

For the above reasons the judgment is affirmed.


text:
    No. 11,520
    Orleans
    FLANDERS v. MOTOR SALES AND SERVICE, INC.
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    . Harry Gamble and Bert. Flanders, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Michel Provosty, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues defendant for the sum of $590.00, of which amount $15.00 is claimed as actual damages to a building, owned by plaintiff, and leased to defendant, and $25.00 per day for twenty-three days, or $575.00 as liquidated damages.

There was judgment for plaintiff, as prayed for, and defendant has appealed.

The record indicates that there was some actual damage to plaintiff’s property, for which defendant is responsible, and, though we are of the opinion as was the trial court, that the evidence is somewhat vague, the amount claimed is so small that it will be allowed. De minimis non curat lex.

Plaintiff relies upon the following stipulation in the lease as entitling him to the liquidated damages claimed:

“* * * and at the end of the lease or as soon as lessee vacate premises, lessee agrees to return without further notice peaceful possession of the said premises and appurtenances in like good order as received, by actual delivery of the keys to lessor, or to be responsible for any loss or damage for failure to do so.
“Should lessee fail to vacate at the end or termination of this lease, lessee agrees to pay $25.00 per day as liquidated damages for each and every day thereafter.”

It is contended that this provision should be interpreted to mean that vacation of the premises can only be accomplished by a delivery of the keys, and, that the failure to deliver the keys renders the tenant liable to the landlord, in the sum of $25.00 for each day that the keys are undelivered.

Defendant’s lease expired by limitation, September 30, 1925. Several days prior to that day, defendant began to move its machinery and equipment, automobile parts and sundries (defendant was engaged in the automobile service and repair business) and it completed the vacation of the premises on the night of September 30, 1925, all of its property having been moved by that time.

A controversy arose as to the condition of the building as compared to its condition, at the time the lease was executed, and the defendant employed a carpenter to make repairs considered necessary by the landlord. In order that the carpenter might have access to the vacated building, a representative of the defendant corporation left the keys with the drayman, who had been moving defendant’s machinery to its new place of business, with instructions to give them to the carpenter. Instead of giving the keys to the carpenter, the drayman lost them, making it necessary to have the look cut off the door and a new lock installed. Some of the keys were delivered to plaintiff’s agent twelve days after defendant had moved from the property, or October 12, 1925, and the last key, October 23, 1925.

Plaintiff claims the right to compute the per diem penalty from October 1st, to October 23rd, the day on which the last key was delivered. There is no doubt of the capacity of parties to stipulate for liquidated damages, and when agreed upon, courts will not inquire whether the actual damage suffered equaled or approximated the agreed amount. R. C. C., Art. 1934; Thompson vs. Allison, 28 La. Ann. 733; Stewart-McGhee Construction Co. vs. Caddo Parish School Board, 165 La. 200, 115 So. 458; Sun Printing & Publishing Association vs. Moore, 183 U. S. 642.

But we do not believe the section of the lease relied upon by plaintiff will hear the construction put upon it. The first part which we have quoted only so far as pertinent, obligates the defendant to deliver the peaceful possession of the premises at the termination of the lease in the same good order as received “by actual delivery of the keys to lessor” and the result of his failure to do so, is that he shall be “responsible for any loss or damage for failure to do so.” Consequently we approve the award of $15.00, as actual damages. The second sentence obligates the lessee “to vacate at the end of termination of this lease” or “to pay $25.00 per day as liquidated damages for each and every day thereafter.”

The record indicates, and we find as a fact, that the plaintiff’s building was vacated at the end of the lease, consequently this sentence imposes no liability upon defendant.

If it he admitted that these two clauses in the lease are not clear in their, intendment, we should be obliged to adopt the construction most favorable to defendant. For the reason that the ambiguity appears in a printed form of lease prepared, or written by the agent of plaintiff and presented to the defendant for signature, as appears by the fact that the” name of the plaintiff’s agent is printed in the lease. Moreover the lease contains other clauses, providing “that where the property is vacated, abandoned, misused, etc., etc.,” “the lessor may enter the premises for the purposes of showing same to prospective buyers or tenants, making repairs, etc.,” and if denied the privilege of doing so “may enter the said premises for said purpose by any other means available.”

We are of the opinion that the judgment appealed from should he reduced to $15.00, consequently, and for the reasons assigned, it is therefore, ordered that the judgment appealed from be amended by reducing the amount awarded plaintiff from $590.00 to $15.00, and as thus amended, affirmed.


author: ODOM, J.

text:
    No. 3378
    Second Circuit
    TOWN OF RUSTON v. ADAMS
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    (February 11, 1929. Writ of Certiorari and Review denied by Supreme Court.)
    Barksdale, Warren & McBride, of Ruston, attorneys for plaintiff, appellee.
    J. W. Elder, of Ruston, attorney for defendant, appellant.
   ODOM, J.

The defendant appeals from a judgment ordering him to pay to the Town of Ruston $651.20 as his pro rata charge for the paving of South Line street, said paving having been done by the town under the provisions of Act 187 of 1920 and Act 115 of 1922.

The facts, as they appear in the record, are that in the month of April, 1926, certain property owners presented a petition to the City Council reciting that they owned more than sixty' per cent of the property fronting on South Line street, between Bonner and Vienna streets, in the said town, and asked that the town pave the same and that the work be done by the town without the formality of advertising for bids, and that the cost thereof be assessed ratably against the property abutting on said street.

Upon receipt of said petition, the town gave notice that such request had been made by publication in. the local newspaper for more than thirty days, notice appearing in five consecutive issues of the paper. Not having received any protests or objections to the proposed paving, the City Council, on June 1, 1926, adopted Ordinance 219, ordering said street paved with reinforced concrete, in accordance with plans and specifications then on file, and ordering the Mayor to purchase the material and have the work done.

The paving was promptly done and accepted by the town, by Ordinance 228, adopted by the Council on November 2, 1926, in which ordinance the Council assessed the costs of the paving against the abutting property in amounts proportioned according to the frontage on the street — the amount assessed against defendant’s property being $651.20. On November 10, 1926, a certified copy of Ordinance 228 was filed and recorded in the mortgage records of Lincoln Parish, in which the said property is situated. The defendant failed and, on demand, refused to pay the assessment, and this suit by the town followed on March 22, 1927.

The lower court gave judgment for the Town of Ruston and against defendant for the amount assessed against his property, decreeing that said amount should constitute a lien and privilege upon the abutting property.

Counsel for defendant, in brief filed in this Court, assigns the following errors:

1.

A personal judgment cannot be granted against defendant for a property or tax lien.

2.

There is no evidence in the record that defendant is the owner of the property described.

3.

That there is no evidence in the record that the property described fronts on either South Line street or South Line avenue.

4.

That the petition of the taxpayers asked that South Line street he (paved, whereas the notice published designated South Line “Avenue.” •

5.

That the recital in the petition for the paving that the petitioners owned more than sixty per cent of the abutting property is untrue.

6.

That Ordinance 228 assesses the amount against all of his property, whereas it should assess the amount against the front lots only.

7.

That all the ordinances relative to the paving should have been promulgated by publication, which was not done.

8.

That there was no evidence that South Line street was ever legally acquired by the town.

We dispose of these assignments in the order named:

1.

The judgment was not intended to be personal against the defendant in the sense that the town could collect more from him than the value of the property against which the lien was assessed. The action of the City Council in assessing defendant’s property with the cost of paving was in the nature ,of a proceeding in rem. Whatever liability there may be in this regard must he restricted to the property affected with the lien.

Town of De Ridder vs. Lewis, 139 La. 903, 72 So. 447; Barber Asphalt Paving Co. vs. John Watt, 51 La. Ann. 1345, 26 So. 70.

The Town of Ruston can never pursue the defendant for any amount beyond that which may be realized from a sale of the property against which the lien is assessed. To avoid all doubt, the Court, we think, should have limited its judgment to one in rem only.

2 and 3.

Defendant, in answer, admitted that he owns property on this street. His answer recites “that the heirs of J. W,. Williams and defendant own 50 per cent of the lineal frontage on said claimed street.” True, this allegation is followed by this: “Defendant denies that he owns any abutting property as claimed,” but, construing the answer as a whole, it is evident that deferidant did not intend to deny that he owned property on said street, and that the last quoted statement refers to his contention that as a matter of fact there was no street there, and, for that reason, he could own no property abutting upon it.

4.

The petition presented to the Council asks that said South Line street be paved, whereas the published notice specified “South Line Avenue.” This deviation between the wording of the petition and that of the published notice did not prejudice defendant. There is no suggestion that' there was a South Line street and a South Line avenue in Ruston. But, however, if there was, defendant was not misled because he stood by and saw the town paving the highway on which his property fronted and he made no protest or objection until this suit was filed, long after the work had been completed, and he had derived the benefits of the improvement, and only then, in defense of the action of the town to collect the assessment. If he had been in fact misled by the published notice, he had ample time in which to object after he saw the town paving the street.

5.

Defendant cannot now complain that the petition presented to the Council was not signed by property owners, owning 60 per cent of the abutting property. • Notice of the application for the paving was published for more than thirty days. Act 115 of'1922 provides that: “after thirty days from the date of such publication or posting, all persons shall be barred from contesting the validity or sufficiency of the petition for improvement.” Defendant offered no protest before the Council within thirty days or later against the validity or sufficiency of the petition. He is now forever barred from raising that point.

It was so held in McCutcheon vs. City of Shreveport, 157 La. 699, 102 So. 875, in which the Court said:

“Act 115 of 1922 is intended by the, Legislature as a statute of repose and evidently has been enacted in the exercise of wise public policy.”

The holding in this case was reaffirmed in McCutcheon vs. City of Shreveport, 160 La. 986, 107 So. 775. The Act itself, and these cases, are clear that the property owner must make his protest within thirty days “or forever thereafter hold his peace.”

6.

The judgment establishes a lien on the property of defendant abutting the street. Defendant urges the point that the lien should operate only against the front lots.

In the case of Barber Asphalt Paving Co. vs. John Watt, 51 La. Ann. 1345, 26 So. 70, the Court held that the lien extends only to lots fronting on the street paved “of the usual dimensions, according to subdivisions in that part of the city; and where squares - have not been sub-, divided into lots, then the lien extends to and embraces only as much of such squares fronting on the street paved, as is necessary to form a tier of lots fronting on the street of the usual width and depth.”

There is no evidence or suggestion that defendant’s property, as a whole, has ever been divided into lots, or that any of the other property along that street has been so divided, nor is there evidence showing the usual width or depth of lots in that vicinity, and, from our reading of the description of defendant’s property, we are unable to determine how far back it extends from the street paved. This point does not seem to have been raised in the court below. We would not be warranted in reversing the judgment on this ground.

7.

A sufficient answer to defendant’s contention that all the ordinances relative to this paving should have been published in a newspaper is to state that neither Act 187 of 1920, nor Act 115 of 1922, require the publication of such ordinances. They do require that notice of the petition be given by publication and that was done.

8.

Defendant contends that there is no South Line street in Ruston, it not having been shown that the town ever acquired the land over which it runs by expropriation, purchase or dedication, the only three methods recognized by law.

The town did not expropriate or purchase the property for the street, and, it is settled, that it could not be acquired by prescription.

Bomar vs. City of Baton Rouge, 162 La. 342, 110 So. 497.

Defendant alleged in answer as follows:

“Defendant avers that the said claimed street has been used as a passage-way by sufferance for the past several years, on the part of your defendant and the heirs of J. W. Williams.” .

Said use as a “passage way” did not, of course, convert it into a public street. But defendant’s acts exclude any reasonable doubt that he intended to dedicate said “passage way” to the town for a public street. In April, 1926, the town published notice to all parties concerned that it had been requested to pave that passage-way and referred to it as a street. At the end of thirty days, or shortly thereafter, it took possession of, graded and paved it. This, of course, was open and aboveboard. Defendant was on the ground, but made no protest. He stood by, saw the town occupy the street and spend its money for the paving. He saw this work fully completed and knew it was accepted by the town and knew that the town would demand that the abutting property owners pay the cost. Demand was made upon him to pay his pro rata thereof — still he made no protest. He was never heard to say that this was not a street or that the town had no right to pave it, until he was sued for the cost. It does not lie in his mouth now to say that it is not a public street.

In the case of Bomar vs. City, supra, the Court held that an intent to dedicate cannot be inferred from mere silence, but said the Court:

“An entirely different situation might be presented if said owners had stood by , and without opposition permitted the public authorities to lay out the road and to work the same as a public road.”

The same applies to streets.

In the case of Degrilleau vs. Frawley et al., 48 La. Ann. 184 (195), 19 So. 151, 157, the Court said:

“A plain and positive intention to dedicate is an essential element of a dedication, and that intention must be shown by language, or acts so clear as to exclude any other reasonable hypothesis, or, at least, to clearly convince the judicial mind.”

The defendant stood by and saw the town take possession of what defendant calls a “passage way,” grade and pave it as a public street. This clearly indicates that he intended to dedicate.

Viewing the case as a whole, we think the defendant has, by his conduct, his silence and inaction cut himself’ off from making the defense which he urges.

Under the precise letter of Act 115 of 1922, if a property owner fail to protest within thirty days after the publication of the notice that paying is to be done, he cannot interfere with the progress of the improvement. If he cannot interfere with the progress of the improvement, for the greater reason, he could not defeat an action for the cost of the work after it is done.

Abutting owners, after receiving the benefits of said improvements, are estopped to complain of irregularities in the proceedings, and, where paving ordinances are not attacked prior to the performance of the work, they cannot be attacked in a suit to enforce the paving liens.

Clark vs. City of Opelousas, 147 La. 1, 84 So. 433; Barber Asphalt Paving Co. vs. King, 130 La. 788, 58 So. 572; Barber Asphalt Paving Co. vs. Gaar, 115 Ky. 334, 73 S. W. 1106; Mudge vs. Walker, 122 Ky. 29, 90 S. W. 1046.

In a Federal case, that of Moore vs. City of Yonkers, 9 A. L. R. 590, (235 Fed. 485), it was held, quoting from the syllabus :

“One whose property is assessed for a local improvement waives his right to relief from the assessment if he fails to appear before the tribunal provided by law for hearing complaints, and takes no steps to have the action of that tribunal reviewed by the courts in a direct proceeding.
“A property owner who stands by and permits a public improvement to be made to the benefit of his property, under authority of a tribunal having authority to levy an assessment, is estopped from raising objections which, if raised in time, would have rendered the assessment invalid.”

The holding in this case is in line with the jurisprudence of the various states in the Union.

(See 25 R. C. L. 181-182.)

Plaintiff, on the trial of the case, offered in evidence the petition for paving, newspapers in which the notice was published and all the ordinances, together with a certified statement by the Clerk of Court and Ex-Officio Recorder of Mortgages showing that Ordinance 228, accepting the paving, had been recorded in the mortgage records of the parish, and rested its case. Defendant offered no evidence. There is no contention that the said street was not in fact (paved. In view of the pleadings, the plaintiff made out a prima facie case by its offerings.

For the reasons assigned, it is ordered that the judgment appealed from be amended so as to make it operate in rem only, and as thus amended it is affirmed, with costs.


text:
    No. 3377
    Second Circuit
    FRASIER v. HARTFORD FIRE INS. CO.
    (December 19, 1928. Opinion and Decree.)

      ■ J. W. Elder, of Ruston, attorney for plaintiff, appellant.
    J. C. Hollingsworth, of New Orleans, attorney for defendant, appellee.
   ODOM, J.

This is a suit to recover loss by fire under a policy issued by' the defendant company. Plaintiff alleged that defendant had issued to him its policy indemnifying him against loss by fire, said policy covering his residence and barn, situated in the Parish of Lincoln, and that the property covered by thfe policy had been destroyed, and he asked to recover the amount of the loss. Plaintiff alleged that he was unable to attach to his petition the fire insurance policy for the reason that same was not then in his possession, but had been delivered to the Federal Land Bank, of New Orleans, from which he had secured a loan on the property.

The defense is that plaintiff breached certain warranties contained in his application for the insurance, which application was made a part of the policy. In defendant’s answer, it is alleged that plaintiff, in his application for the insurance, made a false statement in answer to the question as to whether he had previously sustained losses by fire. Question 9 in the application reads:

“Have you ever suffered loss by fire? If so, give complete answers to questions on reverse side of application.”

To which the application filed in evidence shows he answered “no.”

On the trial of the case, plaintiff offered to prove that the application, insofar as it shows that he answered said question in the negative, is incorrect; that, as a matter of fact, when he signed the application the word “no” was not written into it. The defendant objected to this testimony on the ground that oral -testimony was not admissible to vary, amend or explain the written application because the signature to the application is admitted, and the plaintiff is estopped to set up any conditions of fact other than as shown in the written application. This objection was sustained by the Court on the ground that “there is no allegation in his petition of fraudulent alterations in the application for the insurance, and without such the question could not be gone into on the trial.” We think the District Court erred in this ruling. The plaintiff, at the time he filed his suit, could not foresee the defense which would be offered. His attorne'y did- not have before him either the policy of insurance or the application which plaintiff had signed. Plaintiff’s contention is that the word “no,” in answer to said question, was not written into the application at the?' time he signed it. If the application for the policy be in fact a forgery, insofar as the answer to that question is concerned, plaintiff should be permitted to prove that fact. He could not plead against the defense made.

“When defendant, in his answer, alleges on his part new facts, these shall he considered as denied by the plaintiff; therefore, neither replication nor rejoinder shall be admitted.”

C. P. Article 329, and authorities cited thereunder; Keystone Life Insurance Co. of La. vs. Schlemmer, 122 La. 280, 47 So. 606.

Counsel for defendant, in support of his contention that no oral testimony on this point was admissible in the absence of any allegation that the application for the insurance was a forgery, cites the case of Da Vega & Co. vs. Crescent Mutual Insurance Co. of New Orleans, 7 La. Ann. 228. That case is not in point. The controversy-in that case was over the question as to what kind of protection the assured was given under the policy, it appearing that there was a misunderstanding between the insurance company and the assured, and the Court held that if the policy, which was in the hands of the plaintiff at the time he brought the suit, was not properly filled -out so as to express the intention of the parties, plaintiff should have alleged that fact and asked that the policy be refbrmed so as to conform to the facts and the understanding of the parties. It is different in the case at bar. The application for the insurance was not in the hands of the plaintiff at the time he filed his suit, but was in the hands of the defendant company and (plaintiff could not foresee that there had been something written into the policy, as he claims, which was not written therein at the time he signed it, and, therefore, he could not plead against such a defense.

Under the Article of the Code of Practice above quoted, the special defense set up by defendant is considered denied by plaintiff, and he has the right, under our system, to meet that defense by introducing testimony to contradict it.

We express no views on the merits of the case, but think the Court erred in refusing to admit the testimony which plaintiff offered on the point.

For the reasons assigned, the judgment appealed from is set aside and the case is remanded to the lower court for a new trial; costs of this appeal to be borne by the appellee; all other costs to await the final result.