author: McGREGOR, J.

text:
    No. 4264
    Second Circuit
    TEXAS LUMBER CO., INC., v. E. D. GREEN REALTY CO., INC., ET AL.
    (April 5, 1932. Opinion and Decree.)
    Dimick & Hamilton, of Shreveport, ■ attorneys for plaintiff, appellant.
    G. Randell Whitmeyer, of Shreveport, attorney for defendants, appellees.
   McGREGOR, J.

On October 24, 1929, E. D. Green Realty Company, Inc., entered into a written contract with Kate S. Armstrong to remodel and repair her home in the city of Shreveport. The consideration named in the contract was the sale of the adjoining lot by the owner to the contractor, who was to furnish and pay for all labor and material used in the prosecution of the work. Accordingly, on the next day the deed to this lot was executed and signed, .and on November 7, it was duly recorded in the conveyance records of Caddo parish. In this deed the consideration was stated to be the sum of $500 cash, the receipt of which was acknowledged. So that, as a matter of fact, the contract price for the work was paid in advance by the owner before any of the work was done. Under the circumstances, the owner, Kate S. Armstrong, did not expect to be called upon to pay any of the bills either for material or labor. .

Approximately all of the material for the job was furnished by the Texas Lumber Company, Inc., the plaintiff herein, and nothing was paid on the bill by the contractor, E. D. Green Realty Company, Inc. When the plaintiff began to realize ■that it was going to have trouble in collecting from the contractor for the material it had furnished, it prepared an itemized statement showing everything which it claimed to have furnished and delivered for this job. Attached to this statement was an affidavit, which (1) set forth the total amount of the bill, (2) described the lot on which the owner’s house was. situated, and (3) claimed the lien and privilege provided by law in favor of the furnisher of materials.' This affidavit, without the statement of the account, was duly recorded in the office of the recorder of mortgages for Caddo parish.

The account as stated shows an alleged indebtedness of $308.75; the first item is dated December 12, 1929, and the last April 15, 1930. This suit was filed against both the contractor and the owner on December 3, 1930. Judgment is sought against the two in solido, and in addition it is sought to have recognized a lien and privilege against the owner’s building and the lot on which it is situated.

The contractor made no appearance or resistance to the suit, and allowed judgment to go against him by default. The owner, however, filed an answer and denied all the allegations of the petition in so far as it sought judgment against her. She alleged specially that the contractor alone was bound for the payment of the labor and material used in remodeling and repairing her home, for the reason that she had paid him in full and in advance by transferring to him a certain lot of ground which is described and which was adjacent to her home.

The case was first tried and submitted on March 10, 1931. On March 18 it was re-opened ex proprio motu by -the trial judge, and further evidence was adduced on April 16, 1931. As a result of this trial, the demands of the plaintiff as against the owner were rejected, and judgment was signed accordingly. On October 13, 1931, the case was again re-opened on motion of counsel for the plaintiff, and at the end of this trial the original judgment was reinstated. Prom this final judgment the plaintiff has appealed.

OPINION

Under the terms of the contract between the contractor and the owner, both defendants herein, the contractor was bound for the payment of all bills of every kind in connection with the contract. The owner cannot be held bound for the payment of any part of the material or labor used unless it can be shown that, by complying with the provisions of section 12 of Act No. 298 of 1926, plaintiff has acquired a lien and privilege against her home and the lot on which it is situated. When plaintiff sought to prove its lien and privilege by introducing a certified copy of the affidavit asserting its lien, which had been duly recorded, and a copy of the itemized statement which had been filed with the affidavit, but which had not been recorded, counsel for the owner assumed the position that no lien had been created on account of the failure to record the account as well as the affidavit. This is urged in the brief, but because of the conclusion we have reached upon another phase -------------------

The last item charged on the account as made up is dated April 15, 1930, and the affidavit was duly recorded on June 12, following; so that the recordation was made within the sixty days provided by law if that last item was delivered to the premises of the owner and used in any portion of her home. On the trial of the case, the owner denied any knowledge of the material described in this last invoice and denied that it was delivered to her premises for this job on the date named, or at any other time.- The entire case is admitted to hinge upon the proof of this invoice and its delivery to, and use upon, the owner’s premises.

In support of its contention as to the delivery and use of the material described in this disputed invoice of April 15, plaintiff produced several witnesses. The disputed invoice consists of six pieces of lumber alleged to have been sold and delivered for building the front steps of the house. They were two inches thick, twelve inches wide, and twelve feet long. E. M. Ellington, secretary-treasurer of the plaintiff company, testified that the entire statement was correct, and that the material listed in this last-named invoice was loaded on the date named and sent by truck to the owner’s home to be used by the contractor. Jim Jacobs, the truck' driver, testified that he delivered this same material as directed, and that the owner received it in person and signed the office copy of the invoice in person and in his. presence. The invoice has the name “Kattie Armstrong” written in pencil at the bottom. Rolla Jackson, a carpenter who worked on this job for the contractor, testified that he built the front steps of the house, but cannot say it was the last bit of work done on the job. He swears, too, that the steps were built of material similar to that described in the invoice. This, constitutes all the proof submitted by .the plaintiff on the genuineness and correctness of the disputed invoice of April 15.

The defendant herself took the stand and testified that during the remodeling of her home she rented a room from one of her neighbors, but after the work had been entirely completed she moved back in her home on April 7. In .this statement she is so completely corroborated by several witnesses that could not be mistaken in their testimony it is unnecessary to discuss it. We consider it an established fact that she did move on the said date of April 7, eight days before it is alleged that the disputed material was delivered and used. She swears positively that no material was delivered and no work done after she moved back. In this statement she is corroborated by several of her neighbors and' friends. This testimony, of course, is negative, and is not necessarily conclusive. The owner is illiterate and can neither read nor write. She cannot sign her name. It was satisfactorily proved that she always signs her name by making her mark in the usual way. And yet, Jim Jacobs, plaintiff’s truck driver, testified that the signature which is at the bottom of .the delivery ticket was. made by her in his presence. This part of his testimony is therefore absolutely false, and, applying the doctrine of falsus in uno, falsus in omnibus, we cannot believe him when he says he delivered the six pieces, of lumber as he says he did. Another strong corroborating circumstance brought out in the cross-examination of .the plaintiff’s witness, Rolla Jackson, is that he says that he finished the steps and completed the entire job and left it definitely and finally before the owner, Kate S. Armstrong, moved in. It is conclusively shown that the owner moved in on April 7. The irresistible conclusion, therefore, is that the steps were built and completed before that date, and could not have been built of material alleged to have been delivered on April 15. Furthermore, .this witness has absolutely ho knowledge of the delivery of the six pieces of lumber.

Plaintiff can have no claim against the owner or lien upon her property unless it can prove the creation of this lien in strict conformance with the provisions of the law. In other words, unless the evidence of its claim was recorded within sixty days after the date of the last delivery of material upon the owner’s premises it has no lien or claim against her or her property. It has failed to prove the delivery of the invoice dated April 15. The next invoice, just before the disputed one, is March 14, 1930, which is over sixty days, prior to the recordation of plaintiff’s claim. Therefore it cannot be said that any lien has been created against the owner’s property. Liens- are stricti juris and in derogation of common right, and must be strictly construed against the lienor. Lawrence v. Wright et al., 11 La. App. 703, 124 So. 697.

In their brief counsel for plaintiff and appellant say:

• “It is not necessary that appellant prove that the material was actually used in the building, evidence of the fact that the material was delivered upon the premises where the work was going on is sufficient.”

They say:

“This question has been definitely settled by the jurisprudence of this state upon numerous occasions.”

And in support of their contention they cite the cases of Haynesville Lumber Co. v. Casey, 165 La. 1066, 116 So. 559, 560, and Graphic Arts Building Co. et al. v. Union Indemnity Co. et al., 163 La. 1, 111 So. 470. In these cases the liability of an owner was not involved. The liability asserted was against the contractors and their sureties. In the Haynesville Lumber Company case, the court said:

“In a case of the furnisher of materials, quoad the contractor and his surety, it is not required that the furnisher of materials should follow up every load of lumber sold to the contractor and delivered to his driver for use in the construction of a building and to see that all of such lumber actually went into the construction of the building. We so held in the case of Graphic Arts Bldg. Co. v. Union Indemnity Co., 163 La. 1, 111 So. 470.”

In announcing the same doctrine in the Graphic Arts Building Company case, the court said:

“The question might be different if this was a contest between the owner and the furnisher of materials, with the latter claiming a privilege on the building.” (Italics ours.)

Counsel contend that plaintiff made out a prima facie case by the testimony of the shipping clerk, who billed the material out and saw it loaded, and of the driver of the .truck, who testified that the material was delivered on the premises of the owner, and it is therefore necessary that the owner prove that the material was taken away from the premises. The answer to that argument is that plaintiff’s prima facie case was destroyed without the necessity of showing any removal of the material from the premises. The truck driver is so thoroughly discredited his testimony is of no effect, and the shipping clerk knows nothing except that the material was loaded. It is not proved that a single foot of the material alleged to have been delivered on April 15 was. used in any part of the building. The carpenter that built the steps swears that he built .them before the owner moved back, and it is conclusively proved that she moved back on April 7. Another very significant fact is that there were six pieces of lumber in the disputed invoice, containing seventy-two lineal feet, when only fifteen feet of this kind of lumber was needed for the steps. It is unreasonable to suppose that this lumber was ordered and delivered upon the owner’s premises for building three little steps.

The trial judge gave the plaintiff every opportunity to prove its case. There were .three separate trials, when plaintiff was afforded every opportunity to produce testimony. After a careful consideration of all this testimony, the taking of which extended over many months, and after having heard all the witnesses testify and having observed .them during the trial, the trial judge found the facts to be against the plaintiff and rendered judgment dismissing its. demand as against the owner. Not only do we find no "manifest error in his findings, but we consider' him eminently correct.

For these reasons, the judgment appealed from is therefore affirmed, with all costs.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,870
    Orleans
    HARRIS v. LOUISIANA INDUSTRIAL LIFE INS. CO.
    (April 18, 1932. Opinion and Decree.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys, for plaintiff, appellant.
    Puneky & Barrios and Jas. J. Landry, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

The negro man whose death resulted in this suit on a life insurance policy bore two names. — one Lum Hodge, the other Henderson Giles. After his death defendant insurance company discovered that it had issued two policies on his life, one in each name. . The second policy, in which his name was set forth as Lum Hodge, was for the sum of $264, and in it Pearl Harris, a daughter, was. named beneficiary. That policy contained a stipulation which, among other things, provided that:

“This, policy is void * * * if any policy oh the life of the Insured has been .issued by this Company and is in force at the date hereof, unless this policy contains an endorsement signed by the Secretary that such prior policy may be in force.’’

Defendant company, upon being confronted with two claims based admittedly upon the same life, paid the amount called for by the first policy to Viola Williams, another daughter of .the deceased, beneficiary named in the first policy, but refused payment under the second policy, maintaining that it was void because of the provision above quoted.

In the court below, judgment was rendered in favor of defendant, dismissing plaintiff’s suit. Plaintiff has. appealed.

Plaintiff denies that there was any fraud involved in the issuance of the second policy, or in the using by the insured of a different name, and it is said that it was customary for the said negro, without criminal intent and for no improper purpose, to use either the one name or the other, as his fancy might dictate.

Since both policies were issued on the same life, and since there was no indorsement on the second, unless there is sound reason for disregarding the policy stipulation above quoted, the second policy never became effective, but we have reached the conclusion that the first policy was issued without the knowledge or consent of the said deceased, and that it was not contemplated in the said stipulation that a policy issued at the request of the He-ceased on his. own life should be rendered\ null "and void because some other person, without .the knowledge or consent of the insured, had, at some previous time, secured insurance on the life of the same insured and payable to some other person.

It is shown to be the custom to issue policies of this kind at the request of any beneficiary sufficiently well related to .the insured. If such person may secure and retain a policy without the permission or knowledge of the insured, and may thus, render null and void a policy which the insured himself may later secure on his own life in favor of another beneficiary, then a manifest injustice has been done to .the insured and to the beneficiary selected by him.

The record raises a very strong presumption that the said deceased had no knowledge of the first policy when he applied for and obtained the second, and, if he had such knowledge, it could very easily have been shown by the agent of defendant company, who secured the application for that policy. This agent was .not placed upon the stand, and, since the doubt on this point, if there is any, could have been eliminated by the testimony of this witness, the company’s failure .to produce him indicates that his testimony, if it had been obtained, would have been unfavorable to the company. The agent who secured the application could have testified, if it were a fact, that the deceased himself made .the application and signed it, but, in the absence of such testimony and in the face of the other evidence which appears in the record, we believe that such was not the case. Therefore, since the policy first issued was. obtained without the knowledge or consent of the insured, we do not believe that the policy stipulation referred to is effective.

The judgment appealed from is annulled, avoided, and reversed, and there is now judgment in favor of plaintiff, Pearl Harris, and against the defendant, Louisiana Industrial Life Insurance Company, in the full sum of $264, with interest at 6 per cent from March 7, 1930, until paid.


author: WESTERFIELD, J.

text:
    No. 13,921
    Orleans
    DUBOURG v. UNITED MOTOR CAR CO., INC.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)

      L. L. Dubourg and Dart & Dart, of New Orleans, attorneys for plaintiff, appellee.
    Clarence F. Favret, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

.United Motor Car Co., Inc., defendant herein, appeals from a judgment against it and in favor of plaintiff, John J. Dubourg, in the sum of $155.85.

On October 7, 1930, Dubourg purchased from the defendant company a new automobile, leaving with defendant his old Graham Paige car as security for an allowance of $200 'against 'the purchase price of the* new car. The following agreement was entered into respecting the old car.

“New Orleans, La. October 7th, 1930.
“United Motor Car Co., Inc., 4049 Carroll-ton Avenue, New Orleans, La.
“Gentlemen: You are hereby authorized to dispose of one 1928 model Graham Paige Sedan, bearing motor #•--, serial #-, Louisiana License-. You are to sell this said automobile, title to which I have conveyed to you in lieu of $2'00 cash advanced me, and you are to furnish me an accounting in connection with the sale of ' said automobile. It is further understood that I am to be remitted the net proceeds after deducting the $200, as well as any expense in connection with repairs and salesman’s commission.
“I hereby declare that the title is clear and free from encumbrance on the aforesaid automobile.
“Yours very truly,
“J. J. Dubourg.
“Accepted: United Motor Car Co., Inc.
“F. J. Johnson, Gen’l. Mgr.”

Defendant on November 25, 1930, sold the Graham Paige car by public act for $590, payable $200 in cash and the balance represented by a promissory note. It appears, however, that in lieu of the cash portion of the recited consideration a secondhand Dodge car was accepted. The Dodge was. thereafter sold by defendant for $150 or $50- less than was allowed in the trade. In this sale a secondhand Overland was taken in for $50. The Overland was afterwards dismantled or “junked.”

After the several transactions mentioned had been consummated, an account was rendered plaintiff as follows:

Total Credit $590.00
Finance Charge Graham Paige automobile $ 65.00
Loss on sale of Dodge car 50.00
Loss on sale of Overland car . 45.00
Commission to Mr. Ray Salesman, Dodge car $ 5.00
Graham Paige 22.75 27.75
Salaries & Advertising 26.76
Cost of Repairing Graham Paige 146.40
Cost of Repairing Dodge 18.37
Amount advanced Dubourg 200.00
Total charges 579.28
Balance due $ 10.72

Plaintiff refused to accept the balance of $10.72 and filed suit for $155.85, whereupon defendant deposited the sum of $10.72 in the registry of the court and asked that it he relieved of further responsibility.

It will be noted that the agreement, under which plaintiff’s Graham Paige automobile was left with defendant, commissioned it to “dispose of one 1928 model Graham Paige Sedan” and “to sell this said automobile, title to which I have conveyed to you in lieu of $200.00 cash advanced me, and you are to furnish me with an accounting” and “I am to be remitted the net proceeds after deducting the $200.00 as well as any expense in connection with repairs and salesman’s commission.” The words “title to which I have conveyed to you” are entirely inconsistent with the remainder of the instrument and must be considered as meaningless. Neither party to the transaction have treated it as a sale. The instrument evidences a contract of agency whereby the defendant, United Motor Car Co., Inc., is constituted the mandatary of plaintiff for the purpose of selling an automobile. The sale being effected, it was to remit the net proceeds to plaintiff. The only expense chargeable to plaintiff was that relating to repairs and to the commission of the salesman. These expenses plus the $200 cash advanced amounted to $434.15, .thus leaving a balance of $155.85. The other charges on the account concern the sale of the Dodge and Overland automobiles. The right to make these charges is claimed upon the ground that it is the custom of the trade when accepting automobiles, under similar contracts, to dispose of them by receiving other cars of less value in exchange until finally a car is obtained of so little value that it cannot be disposed of and the transaction is closed.

There is evidence in the record that this is the custom obtaining among retail dealers in automobiles, but there is no evidence showing or tending to show that the plaintiff, in this case, had any knowledge of the existence of the custom, nor is there any proof that plaintiff consented to such arrangement, either before or after the (his) Graham Paige was. disposed of. He cannot be charged for the expense of loss incurred in subsequent transactions to which he was not a party. In accepting the Dodge in lieu of cash, defendant departed from its mandate and acted upon its own responsibility.

When plaintiff left his car with the defendant company he authorized it, as his agent, to sell it and after deducting certain items specified in the contract, the price was to be delivered to him. Under our Code, R. C. C., article 2439 a sale is defined to be “an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.” Defendant was not authorized to exchange the car, but to sell it. If the defendant chose to accept the Dodge in lieu of the cash portion of the sale, it was a matter with which it was alone concerned, and, regardless of the value of the exchanged earj plaintiff, defendant’s. principal, is entitled to thh $200 which it should have received and which, according to the terms of the act of sale, it should have collected in cash.

In California, in a similar situation, the Court of Appeal held otherwise. Meserve v. Smith Bros. et al., 56 Cal. App. 683, 206 P. 105. There may have been some important difference in the facts which has escaped our attention, or perhaps some provision of the California law relative to sales differs from ours. In any event, under the facts of this case, we feel that no other conclusion can be reached.

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


author: HIGGINS, J.

text:
    No. 13,902
    Orleans
    GENERAL MOTORS ACCEPTANCE CORP. v. SCHONEKE ET AL.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    O’Niell & O’Niell, of New Orleans, attorneys for plaintiff, appellee.
    Henry J. Rhodes and J. A. Morales, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is a suit by an alleged bona fide holder for value in due course before maturity of a certain promissory note against the defendants, Fredrico Schoneke and Alex Mastio, in solido, as comakers of the note, for a balance of $142 thereof, with 8 per cent interest and 25 per cent attorney’s fees.

Mastio answered, denying liability, and averring that the note was obtained through fraud and misrepresentation' on the ground that he was told that he was merely signing a credit recommendation for his co-inaker, and that, if he had known that he was signing a note, he would not have done so.

The sheriff was unable to locate Schoneke, the other defendant, for the purpose of serving citation upon him.

There was ' judgment in favor of the plaintiff, as prayed for, against the defendant Mastio, and he has appealed.

The record shows that Schoneke, who was a minor, was living with Mastio, and desired to purchase a Chevrolet automobile from the Menefee Motor Company. He was told by the salesman of the company that due to his minority it would be necessary to have some one else also sign the noté. A questionnaire was submitted to the defendant Mastio to determine his credit rating, and, the information proving satisfactory, the note was executed by the defendants as co-makers on October 21, 1930. The motor company then discounted the note to the plaintiff on October 24, 1930, for cash. Schoneke made one payment of $15, but failed to pay .the other monthly installments as they fell due. The car was, wrecked by Schoneke in December, 1930, and, notwithstanding amicable demand upon both defendants, the note was not paid. The note contained a provision that failure to pay one installment would ipso facto mature the remaining installments in their entirety.

The plaintiff, by satisfactory evidence, has established that it is a bona fide holder for value in due course before maturity and that the balance claimed is due.

The evidence of Mastio, the defendant, tending to establish the defense of fraud, consisted of the testimony of his wife and a friend, who stated that Mastio, at the time he signed the note, was very sick, being an invalid confined to bed for three years, and that he did not appreciate that he was signing a note, but was led to believe by the auto salesman that he was merely signing a recommendation that young Schoneke was trustworthy, in order that Schoneke might purchase the automobile.

Conceding .that the salesman was guilty of fraud, a view most favorable to Mastio, but concerning which issue we do not express any opinion, nevertheless, as the evidence clearly shows that the plaintiff did not have any knowledge of the alleged misrepresentations of the salesman, the defense must fail, because plaintiff is a bona fide holder for value in due course before maturity of the note, and any equities between the original parties cannot be pleaded as a defense against it.

For the reasons assigned, the judgment is affirmed.


text:
    No. 13,934
    Orleans
    SMITH v. BLACHE ET AL.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    Benjamin Y. Wolf, of New Orleans, attorney for plaintiff, appellant.

      Sanders, Baldwin, Viosca & Haspel, of New Orleans, attorneys for defendants, appellees, J. Henry Blache and Union Indemnity Company.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The plaintiff, Dr. Alvin J. Smith, alleges that on the 17th day of October, 1930, he agreed to purchase, and Branel J. Braud agreed to sell, certain real estate in the city of New Orleans; that he deposited with J. Henry Blache, a real estate agent, $375, “on account of the purchase price of said property for the account of B. J. Braud”; that it developed that the property which Braud had agreed to sell did not belong to him, but to his wife, Emma Cyrus, who refused to sign the agreement of sale and refused to execute the act of sale when plaintiff and Braud appeared before the notary public for that purpose; that Blache was a qualified real estate agent in accordance with Act No. 236 of 1920, having furnished bond in the sum of $10,000 with the Union Indemnity Company as surety; that amicable demand has been made upon Blache, as- required by Act No. 225 of 1918, without avail. He prays that Blache, Braud, and Union Indemnity Company be cited, and that there be judgment against them, in solido, in the sum of $375, with interest and attorney’s fees.

Each defendant filed an exception of no cause of action, which was maintained as to Blache and the Union Indemnity Company and overruled as to Braud. Plaintiff has appealed.

The argument in this court in favor of the exception is to the effect that Blache was the agent of Braud, the owner of the real estate which was the subject of the agreement of sale, and that an agent of a disclosed principal cannot be held to personal responsibility. The agreement of sale is in printed form, and reads as follows :

“I hereby offer $3,750.00 for the property (description and terms follow).
“If this offer is accepted I will immediately deposit with J. Hy. Blache, to bind the sale and as part of the purchase price, $375.00 in cash, said deposit to be non-interest bearing and is to be placed in any Bank of your selection, without responsibility on your part in case of failure or suspension of such bank pending settlement with me.
“In case I fail to comply with the above offer, if accepted, I agree to pay to J. Hy. Blache a commission of 5 per cent and all-fees and costs incurred in enforcing collection. In case I do comply with this offer, vendor is to pay the commission of 5 per cent. /
“The parties hereto waive the benefits conferred by Art. 2463, Revised Civil Code, and agree that neither shall have the right to recede from this contract by forfeiture of the deposit by the one, or return of double by the other, either party hereto reserving the right to demand specific performance.
“I-t is agreed by both parties to this contract that the commission is due and earned by J. Hy. Blache on the signing of this agreement, and shall not be affected by any subsequent agreement of the parties hereto or by the annulment of this contract by any court.
“(Signed) Dr. Alvin J. Smith.
“The owner hereby accepts the above offer and agrees to conform to the terms and conditions therein. I further agree to pay O. Hy. Blache 5 per cent commission on the purchase price, which commission I authorize him to deduct from the deposit, and agree to pay all fees and costs incurred, if necessary, to enforce collection.
“(Signed) J. Hy. Blache, Agt. for B. J. Braud, Owner, Authorized.”

Articles 3016 and 3017 of the Revised Civil Code are pertinent:

“3016. The broker or intermediary is lie who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatary of both.
“3017. The obligations of a broker are similar to those of an ordinary mandatary, with this difference, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.”

It is contended, however, that, since the agreement of sale stipulates a waiver of article 2463, R. C. C., relative to earnest money, the articles of the Code cited have no application, because the deposit made with the agent was on account of the purchase price, and therefore Blache only represented the owner, Braud, and not the proposed purchaser, Smith, because it was contemplated that the money was to be immediately turned over to Braud, without regard to whether the transaction was consummated by an act of sale, or otherwise.

Our answer to this argument is that, in the first place, it is exceedingly doubtful whether there was any intention that the money should be immediately paid to Braud, because it is stipulated that it should be put in a bank and that the agent should not be liable for the interest, or for the failure of the bank during the time it was. on deposit. In our opinion, a fail-reading of the contract would indicate that it was intended that the $375 was to be paid over by the agent to the owner of the property when the act of sale was consummated, because otherwise there would be no sale, no purchase, and no purchase price to which it might be applied. But, if we are mistaken in this, and the contract is susceptible of the interpretation put upon it by defendant’s counsel, and it was contemplated that the money given to Blache should be given to Braud at once, certainly he was, to that extent, the agent of Smith, who had given him the money for that purpose. Blache owed to Smith the same fidelity in the execution of his mandate ’ as he owed to Braud, the other party to the transaction. It may be that, upon the trial of the case upon the merits, it will be satisfactorily established that he had executed this mandate and can be held to no further responsibility.

In the case of Titus v. Cunningham et al., 164 La. 431, 114 So. 86, where a similar situation was presented, the court said:

“It is argued on behalf of Titus that Murphy and Salomon were brokers, or mandatories of both Titus and Mrs. Cunningham, owing as much fidelity to the one as to the other, and that they were obliged to hold the deposit of $750 subject to the mutual order of Titus and Mrs. Cunningham, or an order of court. The argument would be good if that had been the unuerstanding of the parties; but the fact is that Titus deposited the $750 with Salomon with the understanding and intention that it should be paid over to Mrs. Cunningham or to Murphy as her agent and by him to her. Por that reason neither Murphy nor Salomon is answerable to Titus for paying the money to Mrs. Cunningham.”

And so we say here that the question is whether Blache executed his dual mandate in accordance with the intention of the parties, a fact which can only be determined upon the trial of the case.

Nor would it make any difference if the sum deposited with Blache had been earnest money instead of a partial payment. A payment by Blache to Braud under such an arrangement would completely exonerate him, because such would have been the intention of the parties.

“But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to-wit: he who has given the earnest, by forfeiting it; and he who lias received it, by returning the double.” Revised Civil Code, art. 2463.

The determining factor here, as in the Titus case, is the proper execution of the commission, or mandate. The principle relied upon by the defendant in this case to the effect that agents are not liable to third persons for their nonfeasance is a very familiar one to both the common and the civil law. It has been well expressed by Chief Justice Bermudez in Delaney v. Rochereau & Co., 34 La. Ann. 1123, 44, Am. Rep. 456, in the following language:

“At common law, an agent is personally responsible to third parties for doing something which he ought not to have done, but not for not doing something which he ought to have done, the agent, in the latter case, being liable to his principal only. For nonfeasance, or mere neglect in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other. No man is hound to answer for such violation of duty or obligation except to those to whom he has become directly hound or amenable for. his conduct. * * *
“It is an error to suppose that the principle of the civil law, on the liability of agents to third persons, is- different from those of the common law.”

This court, in S. Pfeiffer & Co. v. R. F. Mayer & Co., 3 La. App. 289, pointed out the distinction between the rule with respect to agents generally and those which appertain to the broker, or intermediary, under articles 3016 and 3017 of the Code. In Louisiana, the broker represents both parties, and is therefore not a third person with respect to either party to the trans.aetion which he negotiates as intermediary. The parallel sought to be drawn by counsel in the argument at the bar between a broker and a salesman in a department store is wholly lacking in analogy. The salesman in the department store represents his principal, the proprietor, as an agent, and for any act of omission is responsible to his principal alone. He is not the agent of .the customer who purchases merchandise, and, in effecting a sale, is the mandatary of the proprietor of the store, alone by whom he is employed. If, in the management of his principal’s affairs, he is guilty of a fault, or a mistake, he is liable to the “mandant” alone. Unlike the broker, he does not represent the buyer and the seller. Let us suppose that Blache still has the $375 deposited with him by Smith. Can it be said that, the sale which he attempted to negotiate having failed of consummation, he would be entitled to retain the amount placed in his hands to be applied upon the purchase price? And, going a step further, we will assume that Smith had paid over to Blache one-half, or, say, the entire purchase price of $3,750, and that Blache had retained this amount. Is it possible that Smith would have no right to judicially inquire what became of his money? The confusion of counsel, it seems to us, is due to his failure to give to -the codal articles the effect plainly intended, for, once it is realized that Blache is Smith’s agent, as well as Braud’s agent, all objection to the plaintiff’s suit must disappear.

For the reasons assigned, -the judgment appealed from is reversed, and it is now ordered that there be judgment in plaintiff’s favor overruling the exception of no cause of action and remanding this case for further trial according to law, and consistent with the views herein expressed.

HIGGINS, J., absent, takes no part.


text:
    No. 13,980
    Orleans
    ROBERT HAYNES TARRANT, INC., v. HOLDEN ET UX.
    (April 18, 1932. Opinion and Decree.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellee.
    Quintero & Ritter, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

The plaintiff corporation, Robert Haynes Tarrant, Inc., brings this, suit against the defendants, in solido, upon two claims orally assigned to it by Robert Haynes Tarrant and his sis.ter, Mrs. Colston.

Mr. Tarrant’s claim amounting to $115 is alleged to cover the purchase price of two garden benches and one Spanish jar, and Mrs. Colston’s claim in the sum of $160 is said to represent the balance due for services and materials furnished in making lamp shades, draperies, portieres, etc., or a total sum of $275, for which judgment is asked against the defendants.

The defense is twofold:

First, that the failure to allege or prove! notice to the debtor of the assignment of! the claim as required by the provisions! of article 2643, R. C. C., invalidated the| assignment; and,

Second, that the original creditors had| been paid by the defendants.

There was judgment in favor of the| plaintiff allowing the claim of $160, but disallowing the claim of $115, and defend-l ants have appealed. Plaintiff has answered] the appeal asking that the award be in- ] creased to the amount prayed for.

The article of the Code, art. 2643, relied^ upon by defendants, reads as follows:

“The transferee is only possessed, as it I regards third persons, after notice has! been given to the debtor of the transfer having taken place.
“The transferee may, nevertheless, become possessed by acceptance of the transfer by the debtor in an authentic act.”

In the case of Flint et al. v. Franklin, 9 Rob. 207, the question arose as to whether the debtor had been notified of the assignment. It was shown that it was publicly announced at the time of the sheriff’s sale that the transferee was then the owner of the claim and, also, that in a conversation the debtor was notified, although, at that time, the statement was made without any intention of giving the debtor notice. The court said:

“This court has decided in numerous cases, that it matters not in what way the debtor was informed of the transfer, provided it is shown that he knew that his former creditor was divested of all his rights to the debt assigned, and that such knowledge of the fact was derived frcm the transferee, or his agent.”

The notice required by the above article of the Code is subject to no special formality and may be given in any manner which would apprise the debtor of the fact that his creditor has divested himself by the assignment. The serving of the petition and citation on the defendants in this case is sufficient to meet the requirements of the codal provision. •

Counsel for defendants has referred us to the case of Lehman Dry Goods Co. v. Lemoine, 129 La. 382, 56 So. 324. We do not find that case in point, for there the court found as a matter of fact that the debtor had never been notified of the assignment in any manner whatsoever.

Passing to the merits of the case we shall first take up the claim for the garden benches and Spanish jar amounting to the sum of $115. Mr. Tarrant testified on cross-examination that these articles were sold and delivered on April 19, 1929, to Mr. and Mrs. Holden; that prior to that time he sold them several other Spanish jars; that the defendants had paid him in full for the purchase price of all articles up to April 19, 1929; and that the only indebtedness thereafter was the present claim which was unpaid.

Mr. Holden, as a witness in his own behalf, identified three of his checks totaling the sum of $120 covering the charges of $45 each or $90 for two benches; $25 for the Spanish jar and $5 drayage fee. The checks are dated May 2, 1929, and May 10, 1929, respectively. The trial court, who heard and saw the witnesses, believed that these checks were in liquidation of the present claim, and in view of Mr. Tarrant’s repeated statements that all purchases pri- or to April 19, 1929, when the present claim arose, had been paid for, it would appear to us. that the testimony of Mr. Holden is well supported that these checks were in full payment of the claim of $115.

Finally, with reference to the claim of $160 covering furnishings, Mrs. Colston gave a detailed explanation of these items and swore to the correctness of the itemized statement which was annexed to the petition. Mrs. Holden was not produced as, a witness and her absence was unexplained. Mr. Holden was uninformed as to the subject-matter. Under the circumstances we believe that the conclusion of the trial court in allowing this claim was proper.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,987
    Orleans
    RELF v. TUFT ET AL.
    (April 4, 1932. Opinion and Decree.)
    Merrick, Schwarz, Guste, Barnett & Redmann and W. H. Sellers, of New Orleans, attorneys for plaintiff, appellee.
    Lloyd J. Cobb, of New Orleans, attorney ' for defendants, appellants. j
   HIGGINS, J.

Miss Alice E. Relf brought this, action against Mr. and Mrs. A. G. Tufts, in solido, to recover property damages said to have resulted from a collision between her Ford sedan and the defendants’ Buick sedan on the Chef Menteur highway on August 28, 1930, at about 6:40 o’clock p. m.

The charges of negligence against the defendants are that the Buick car was being driven on the left, or wrong side of the highway, in the direction of New Orleans, at an excessive rate of speed and that its driver, through negligence and carelessness, ran into the plaintiff’s car, which was going in the opposite direction, or towards Slidell.

The defendants admit that the Buick car was being driven on its left side of the road, but denied liability, averring that, at the time of the collision, the driver of their car was attempting to pass two cars which were in front of it and going in the same direction and, consequently, defendants’ car was lawfully on the left side of the road; that the proximate cause of the collision was the plaintiff’s negligence because, after the plaintiff saw and appreciated the defendants’ perilous position, she did not make any attempt to stop her car, or pull to her right; that the plaintiff’s negligence was the primary cause of the accident and that she should be condemned to pay the defendants’ claim in reconvention, and, in the alternative, defendants allege that the plaintiff was guilty of contributory negligence.

There was judgment in favor of the plaintiff, as prayed for, and dismissing the reconventional demand. Defendants have appealed.

The record shows that on the evening in question, Mrs. Tufts was driving her husband’s Buick sedan towards New Orleans on the highway between the Rigolets and Chef Menteur. Miss Relf was proceeding in her Ford sedan on the same road towards Slidell. The Buick car was 300 feet to the rear of another car also going in the direction of New Orleans, and there was a truck pulling a disabled car in the same direction. The first car succeeded in going around the truck and disabled car. But, as the defendants’ car attempted to pass these two vehicles, the plaintiff’s car, coming in the opposite direction, was discovered by Mrs. Tufts, who was driving the Buick, and, being convinced that there was not room enough between the truck and plaintiff’s car for her automobile to pass through, she attempted to stop. Before this could be accomplished the Buick collided with the Ford car.

The road at this point was made of concrete and was twenty-one feet in width. It had been raining previous to the accident and, at the time of its occurrence, it was still drizzling and misty. The pavement and shoulders of the road were wet and slippery. On the right side of the road, or going in the direction of Slidell, there was a large canal.

It is quite impossible to reconcile the testimony of the plaintiff’s and the defendants’ witnesses as to what happened just preceding the accident. Plaintiff, who was driving her Ford car, had as. guests in the car her brother and his wife, all of whom testified that she was driving about twenty-five miles an hour on the right side of the road going in the direction of Slidell and that, as the Buick car attempted to pass the truck, plaintiff pulled to the extreme right of the road and stopped with the right wheels of her car about sixteen inches from the right curb of the concrete road; that Mrs. Tufts attempted to stop the Buick car, but apparently realizing that it was impossible to do so, attempted to go to the right of plaintiff’s car, causing the right part of the front bumper and the right front fender to come in contact with the same parts of the Ford car on its right side.

Mrs. Tufts, her daughter and a friend, who were riding in her car, testified that Miss Relf’s car was being driven with its left wheels in close proximity to the black line which divided the pavement in the center; that the Buick car was going ■thirty-five miles, per hour; that at the time Mrs. Tufts tried to pass the truck the plaintiff’s car suddenly loomed in view and an attempt was made to slacken the speed of the Buick so as to go to the rear of the truck, but before that could be done the Ford car, coming at a fast rate of speed, was upon them; that they did not see the Ford car until it was very near them; that at the time of the collision the Buick car was on its left side of the road — plaintiff’s right-hand side — and had come to a stop; that the driver of the Ford car apparently attempted to pass to the right of the Buick car, when 'it appeared that its pathway was obstructed by the Buick automobile.

The driver of the Buick car admits that she was on her left side of the road at the time of the accident and that she did not see the Ford car coming, although its lights were burning, but states she was under the impression that, when she blew her horn, the driver of the Ford car would take it as a signal that she, Mrs. Tufts, was in a dangerous position and that the Ford car should have yielded the right of way to her.

Paragraph (a) of section 15 of Act 296 of 1928, an act regulating traffic on public highways, provides, as follows:

“Section 15. (Limitations on Privilege of Overtaking and Passing.)
“(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.”

In the case of Bazile v. J. F. Landry & Co., Inc., 10 La. App. 747, 122 So. 901, where the facts were quite similar to the facts in the instant case, this court said:

“The Ford truck was proceeding towards Pointe-arla-Hache, on the right, or proper side of the roadway, at a moderate rate of speed, which as it approached the bend in the road was decreased. The Dodge automobile was being driven in a direction away from Pointe-a-la-Hache, and towards the city of New Orleans, on the left, or wrong, side of the road, at a rate of speed of about thirty-five miles per hour, without slowing its speed as it approached the turn. It follows from this finding of fact that the Dodge car was at fault, in that it was on the wrong side of the road and in failing to decrease its speed in the turn of the roadway. ,
“It is argued, however, that the Ford truck was also to blame because, according to ■ the evidence, the Dodge car was seen by the driver of the Ford truck at a time when the cars were sufficiently far apart to permit him to avoid the accident. In other words, defendant invokes the doctrine of the last clear chance.
“We are of the opinion that the doctrine is improperly invoked in this case. The fact that the driver of the Ford truck saw the Dodge car at about 100 feet, as is testified to, or at a greater distance, did not afford him an opportunity to avoid the accident. If it be suggested that he should have driven over to the left side of the road, in order to escape the Dodge car, the answer is, that such maneuver would have been calculated to increase the danger of collision, since it must be assumed that the driver of the Dodge car would have sooner or later, and in time to avoid the collision, taken his position on the proper side of the road. The driver of the Ford truck in seeing the Dodge car directly in his path, was. justified in believing that he would pull over to his right in time to avoid the accident. The Ford driver could not drive further to the right, without getting off the roadway and if he stopped his car, and the Dodge had maintained its position, as it did, the accident would have occurred just the same.”

See, also, Cooper v. Bennett, 7 La. App. 462; Goodnight v. Dr. Willis, 4 La. App. 26.

After carefully reading the record, it is our opinion that the driver of the Buick car was at fault in trying to pass, the •truck while driving at a speed of about thirty-five miles an hour, when her view was intercepted by the cars in front of her own, the atmosphere misty and the pavement wet. Before attempting to pass •the truck, which necessitated going to her left side of the road, it was her duty to ascertain if there were any cars coming from the opposite direction, and, if so, to wait until they had passed, so that she would have a clear road. We are also of the opinion that plaintiff did everything possible to avoid the accident by pulling to her extreme right-hand side of the road and stopping.

Having reached the conclusion that the proximate cause of the accident was the negligence of the driver of the Buick car and that plaintiff was free from fault, it follows that the judgment of the trial court is. correct.

There is no question as to the quantum since, at the opening of the trial below, each party admitted the correctness of the bills covering the damages to the respective cars.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 14,033
    Orleans
    JEFFERSON v. SARDENGA
    (April 18, 1932. Opinion and Decree.)
    Johnston Armstrong, of New Orleans, attorney for plaintiff, appellant.
    Theo. Cotonio, Jr., and Theo. Cotonio, Sr., of New Orleans, attorneys for ■ defendant, appellee.
   HIGGINS, J.

This is a suit by a tenant for damages for personal injuries against the landlord and owner of the premises. Petitioner alleges that on October 22, 1928, while she was descending the steps leading from the roof of a garage, which was provided by the lessor and used by her for the purpose of drying clothes, the third step gave way due to its decayed condition, causing her to fall and injure herself.

Defendant admitted that the plaintiff was a tenant in the building, but denied liability and specially pleaded that the plaintiff was notified not to use the steps because several of them had been removed and that plaintiff was guilty of contributory negligence in attempting to use them.

There was judgment dismissing the suit and plaintiff has, appealed.

The record is voluminous and we feel that no useful purpose will be served by a narration of the testimony of the witnesses of the respective parties and pointing out the discrepancies therein, as well as the contradictory and irreconcilable aspects, of it.

Plaintiff sought to prove by herself and two eye-witnesses that she had gone to the roof of the garage to hang out some clothes and, after accomplishing that purpose, attempted to descend the steps and, as she reached the third step, it gave way under her weight, causing her to fall into the yard. She is in some measure corroborated by her husband and a doctor, who testified that she was confined to her bed for a considerable period of time on account of the alleged injuries.

The defendant introduced the testimony of several witnesses to the effect that at the time plaintiff claims she fell all of the steps had already been entirely removed from the premises. While this evidence was contrary to the averments of the defendant’s answer that the plaintiff was warned not to use the steps because several of them had been removed, the evidence was admitted without objection and, consequently, had the effect of enlarging the pleadings. We have, therefore, considered the testimony, but feel that its weight has been seriously affected by the averments in the answer.

We have carefully read the record and find that the testimony of the witnesses for both the plaintiff and defendant is unsatisfactory and unimpressive. The testimony of the witnesses of the respective parties being on a par, as far as weight and credence are concerned, we are of the opinion that the decision of the lower court, dismissing' the suit, is correct. In any event, this court, in a number of cases, has held that it would not reverse the decision of a trial court on a question of fact simply because the evidence was conflicting.

For the reasons assigned the judgment is affirmed.


author: PER CURIAM.

text:
    No. 14,136
    Orleans
    REX CREDIT CO., INC., v. EUMONT ET AL.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    Arthur R. Leopold, of New Orleans, attorney for plaintiff, appellee.
    J. A. Morales, of New Orleans, attorney for defendants, appellants.
   ON MOTION TO DISMISS

PER CURIAM.

We are asked to dismiss this appeal because of alleged acquiescence in the judgment appealed from.

Plaintiff, appellee, sought judgment against defendant, appellant, together with another defendant, who has not appealed, in the sum of $150, with interest and costs. Judgment was rendered for $139.61, with interest and costs.

After the judgment was rendered appellant paid to appellee, without reservation of any kind, the principal amount of the judgment, to-wit, $139.61, and it is this payment which- is now pointed to as constituting acquiescence by appellant in the judgment.

Appellant contends that he has always admitted an indebtedness of $139.61, and that, since the only matter placed in controversy by the appeal was the question of liability £or interest and costs, no acquiescence in the judgment, as a whole, resulted from the payment of the sum which has always been admitted, and which he (appellant) has always been ready and willing to pay.

Appellant admits that at no time prior to the filing of suit did he tender to plaintiff the sum now admitted to be due, and he sought to overcome in the court below the effect of this failure by the contention that, since plaintiff was never willing to accept $139.61, he (defendant) was not required to make a useless tender of that sum.

Whether the judgment should have been for $139.61, without interest and costs, or whether those items were properly ineluded, are the very questions which are presented by the appeal, and we cannot, on motion to dismiss, look into the correctness of the judgment appealed from.

That judgment is indivisible and, by payment of a part, without reservation as to his rights to continue his appeal on the other parts, it is very evident that appellant has acquiesced therein. Succession of DeEgana, 18 La. Ann. 59; Williams v. Duer, 14 La. 523; State v. Judge, 4 Rob. (La.) 85; Campbell v. Orillion, 3 La. Ann. 115; Fluhart v. Golding, 7 La. Ann. 233; Landry v. Connely, 4 Rob. (La.) 127; Rouge v. Lafargue Bros. Co., 49 La. Ann. 1001, 22 So. 190; Flowers v. Hughes, 46 La. Ann. 439, 15 So. 14; Stinson v. O’Neal, 32 La. Ann. 947; Cobb v. Hynes, 4 La. Ann. 150; Succession of Kaiser, 48 La. Ann. 973, 20 So. 184; Jolley v. Vivian Oil Co., 131 La. 937, 60 So. 622.

Since we believe that there has been acquiescence in the judgment, it is ordered, adjudged, and decreed that this appeal be, and it is, dismissed at the cost of appellant.


text:
    No. 13,775
    Orleans
    IBECK v. WISE-MILLER ET AL.
    (November 16, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)
    (April 25, 1932. Opinion and Decree of Supreme Court on Writs of Certiorari and Review.)
    (May 23, 1932. Rehearing Refused by Supreme Court.)
    Theo. Cot.onio, Jr., and Theo. Cotonio, cf New Orleans, attorneys for plaintiff, appellant.
    F. B. Freeland, of New Orleans, attorney for defendant-appellee Wise-Miller.

      Jos. Lautenschlaeger, ' of New Orleans, attorney for defendant-appellee Newman.
   WESTERFIELD, J.

This, is a suit for the return of $320 deposited with a real estate agent in connection with an offer to purchase property in its hands for sale. The plaintiff Miss Jennie Ibeck agreed to buy, and defendant Mrs. Catherine Newman agreed to sell, certain property in the city of New Orleans known by the municipal numbers 4008-4010 Clematis street. In the agreement of sale, which was dated January 10, 1929, it was, stipulated that: “If a good and merchantable title can be made ■to me I agree to accept title to above property and pay the balance of the purchase price upon passing of act of sale, which shall be done at my (plaintiff’s) expense before purchaser’s (plaintiff’s) notary public within thirty days, interest at the rate of 8 per cent per annum to be paid by purchaser on failure to pass act of sale within specified time.” There was also another clause in the agreement obligating the purchaser to pay to the real estate agents their commission on the sale and attorney’s fees and costs of court that might be incurred in enforcing collection, conditioned upon failure of plaintiff “to comply with the terms and conditions of this offer after same is accepted.” Following the consummation of the agreement to sell, .the title .to the property was delivered to plaintiff’s attorney, Mr. Cotonio, for examination, and it was then discovered that Mrs. Newman was not the owner of the property, the title of which stood in the name of Mr. and Mrs. E. F. Ybos, who had agreed to sell to Mrs. Newman the day before Mrs. Newman sold to plaintiff. It also developed that the Union Homestead owned a mortgage covering the property, which plaintiff had agreed to buy, as well as the adjoining property, and that the homestead at first declined to release the property without the payment of a sum in excess of the amount which plaintiff had agreed to buy it for and, thereafter, modified its demands. The taxes had not been paid on the property and a survey was required by plaintiff’s, counsel, which resulted in objection on the part of his client to a community driveway, which, it appeared was not .entirely upon the property purchased by her. All of these developments caused objection by plaintiff’s counsel and resulted in a long correspondence between the real estate agents, Wis.e-Miller, and himself, to which firm counsel seemed to look for correetion of his objections to the title, though he had been informed of the fact that the vendor, Mrs. Newman, was represented by counsel. Finally, on April 3, 1929, all efforts to effect a transfer of the property having in the meantime, failed, this suit was brought, in which the plaintiff, Miss Jennie Ibeck, asked judgment against Wise-Miller and Mrs. Catherine E. Newman, in solido, in the sum of $719, with interest from January 10, 1929, and the further sum of $25 per month from March 1, 1929.

Wise-Miller answered and, after setting up the clause of the agreement of sale in which, under certain conditions, plaintiff had agreed to pay their commission and attorney’s fees, asked that plaintiff’s suit be dismissed and that they be allowed $128 as commission, together with $35 as attorney’s fees. Mrs. Newman answered averring that the failure of the transaction was. due entirely to the fault of plaintiff.

There was judgment below in plaintiff’s favor against Mrs. Catherine Newman and against Wise-Miller, ordering the return to her of the sum of $320, and in reconvention in favor of Wise-Miller against plaintiff in the sum of $128 and the further sum of $35 as attorney’s fees. Plaintiff alone has appealed.

Without discussing the items of damages claimed from the standpoint of their being too remote and speculative, we observe that, under Rev. Civ. Code, arts. 1910, 1911, 1912, 1913 and 1914, putting in default is a “prerequisite to the recovery of damages” for the passive breach of a commutative contract. Bussey v. Wise-Miller, 172 La. 198, 133 So. 443.

In so far as the thirty-day clause in the contract is concerned, the penalty for' default is. fixed at 8 per cent interest upon the purchase price. Neither party seems to have insisted upon this clause,, and both, we consider, have waived it.

The various objections to the title, which plaintiff’s counsel urged, such as his insistence upon taking title from Mrs. Newman, instead of the record owner, the payment of the taxes, the release of the homestead loan, etc., should have been the subject of a demand upon Mrs. Newman’s counsel for compliance within a reasonable time, and not of a personal undertaking by plaintiff’s counsel, or of a lengthy correspondence with Wise-Miller, the real estate agents, who had negotiated the sale, particularly since counsel had been previously informed that the vendor was represented by counsel. However, we find that Wise-Miller wrote plaintiff’s counsel under date of March 7, 1929, a little less than one month before this suit was filed, as follows:

“If you will fix a definite date for the passing of the act of sale, giving us a reasonable length of time to arrange all details to your satisfaction, we are sure that we could accomplish same to the best interests of all concerned.”

This, offer was ignored, the letter unanswered, and no further effort made to consummate the sale. Under the eircumstánces, we believe that plaintiff is responsible for the failure of the transaction. It follows that plaintiff is liable for the commission due Wise-Miller and the attorney’s fee agreed upon.

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


text:
    No. 14,176
    Orleans
    STATE EX REL. THALHEIM v. CITY OF GRETNA
    (April 4, 1932. Opinion and Decree.)
    Andrew H. Thalheim, of Gretna, attorney for relator.

      L. H. Gosserand, of Gretna, attorney for respondent.
   WESTERFIELD, J.

Relator alleges that in a proceeding filed in the Twenty-fourth Judicial District Court for the parish of Jefferson, entitled Andrew H. Thalheim v. City of Gretna, No. 8891 of the docket of that court, he obtained a writ of sequestration impounding certain funds in the hands of the city of Gretna, which was subsequently dissolved by the Honorabll L. Robert Rivarde, the judge of that court, and a suspensive appeal denied him. He seeks in this, proceeding to compel the allowance of the suspensive appeal.

The respondent judge justifies the refusal to permit an appeal upon the ground that the judgment dissolving the writ of sequestration is interlocutory in character and not such as to cause relator irreparable injury.

The allegations of relator’s petition, in which the sequestration was asked for and obtained, are to the effect that he was employed by the city of Gretna by Ordinances Nos. 497 and 498, approved January 20, 1931, “to attend all legal matters in connection with improvements on a portion of Lafayette Avenue and a portion of Second Street, in the City of Gretna, under the provisions of Act No. 3 of 1929, approved April 16th, 1929, at a fee of 1%% of the total costs, of said work, and provided that the payment of said fee was to be made in cash and was ito be paid from an assessment levied against the abutting property owners”; that he had practically completed the work when he was replaced by other counsel; “that he had a lien and privilege on $100.28, as levied by Ordinance No. 541 on property abutting on Second Street, and a lien and privilege on $519.96, as levied by Ordinance No. 542 on property abutting on Lafayette Avenue, or a total of $620.24, and that he fears that the City of Gretna, acting through the Mayor, and a majority of the Board of Aldermen, of the City of Gretna, will conceal, part with, or dispose of, to the prejudice of petitioner, the amount of said attorney’s fees, which are in their possession, during the pendency of this suit.”

Based upon this, petition, a writ of sequestration was issued upon plaintiff’s furnishing bond as required in the order granting the writ. The' defendant, city of Gretna, filed a motion to dissolve upon the ground that plaintiff’s petition disclosed no cause or right of action, and upon the further ground that the property named in the writ is not subject to sequestration under the law of Louisiana. Relator then sought a suspensive appeal and attached to his motion a bond for $1,000. The appeal was not allowed, the court appending the following notation on the bottom of the motion:

“Above motion and request refused on the ground that the judgment appealed from is interlocutory.
“March 8, 1932.
“[Signed] L. Robert Rivarde, Judge.”

The respondent, in his answer to the rule nisi issued by this court, maintains that no irreparable injury was occasioned relator. He cites State ex rel. Capitol City Oil Mills Co. v. Monroe, 50 La. Ann. 273, 23 So. 839; State v. King, 46 La. Ann. 83, 14 So. 423, and other authorities. Further answering, respondent contends that if the irreparability claimed by relator be based upon the alleged fear that the impounded funds would be diverted to puroses other than those for which they were by law intended, sequestration is not the proper remedy; citing Southern Bank v. Louisiana National Bank et al., 28 La. Ann. 97.

There can be no question of the propriety of the action of ithe respondent judge, unless the effect of the judgment complained of he irreparable, the judgment being interlocutory.

The issuance of a sequestration presupposes the necessity of preserving a right which is in danger of being lost, and an order which sets the writ aside may cause irreparable injury. Louisiana Digest, vol. 1, verbo “Appeal,” sec. 135. In this case the allegation upon which the writ issued was to the effect that relator had a lien and privilege on certain funds in the possession of the city of Gretna, which, it was feared, would be disposed of to his prejudice. The question of whether, as a matter of fact, relator was mistaken in his belief that he had a lien on these funds, as well as the question concerning the propriety of the remedy he sought to exercise, is not pertinent to our present discussion, since those question's can only concern the merits of the controversy. We are only interested in a consideration of relator’s right to a suspensive appeal.

It is argued that, since there is no allegation of insolvency on the part of the city of Gretna, and that since plaintiff’s demands are compensable in money, no irreparable injury can result from the release of the sequestration. It seems to us that this argument fails to take account of the fact that relator claims to have a lien upon funds presently in possession of the city of Gretna which would afford him an additional security. Assuming that the effort to collect a judgment against a municipality involved no more difficulty than would be true in the case of any other defendant, which certainly does the case of respondent no injustice, it must be conceded that in dissolving the writ of sequestration plaintiff has been damaged by the release of a security which he alleges the law has provided him for the payment of his debt, and that this loss is irreparable. City of Gretna v. Parish of Jefferson et al., 161 La. 406, 108 So. 787.

It is therefore ordered that the alternative writs of mandamus and prohibition-heretofore issued be made peremptory and that, accordingly, the Honorable L. Robert .Rivarde, judge of the Twenty-fourth Judicial District Court for the parish of Jefferson, be ordered to grant to Andrew H. Thalheim, relator herein, a suspensive appeal in the matter of “Andrew H. Thalheim v. City of Gretna,” No. "8891 of the docket of the Twenty-fourth Judicial District Court for the parish of Jefferson, conditioned upon his furnishing bond as the law directs.

JANVIER, J., absent, takes no. part.


text:
    No. 13,913
    Orleans
    LAFAYETTE FURNITURE CO., INC., v. WALTERS ET AL.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    (May 23, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      W. J. & H. W. Waguespack and Borris Burk, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

The Lafayette Furniture Company, Inc., sued the defendants, Miss Opal Walters and Nick Biri, jointly, severally, and in solido, on a written contract of sale of certain furniture, for the sum of $154.95, subject to a credit of $15, or a balance of $139.95.

Defendant Biri filed an exception of no right or cause of action, and, reserving the benefit of the same, filed a general denial.

Miss Walters failed to appear, and judgment by default, as prayed for, was rendered against her; and, on the trial of the case on the merits, there was judgment in favor of the plaintiff against the defendant Biri as prayed for. He alone has appealed.

The record shows that Miss Walters requested Mr. Biri to accompany her to the place of business of the plaintiff for the purpose of purchasing certain furniture. As she desired to make the purchase on credit, the plaintiff required her to have some one of proper credit standing t'o sign as guarantor of the account. Both Miss Walters and Mr. Biri signed a written contract agreeing to pay for the merchandise $5 cash and the balance at the rate of $12.50 per month. The contract also contained a provision that, in the event payments were not promptly made, the balance would become due and exigible at once, bearing 8 per cent interest, and a further stipulation for 10 per cent attorney’s fee for collection.

There is no doubt that the furniture was ordered and delivered, as the defendants directed, and that they signed the contract. Mr. Biri in his testimony states that it was his idea that he was only signing to recommend Miss Walters as a customer, and that, had he known that he was binding himself to pay for the furniture in the event she did not do so, he would not have signed the contract. . He further contends that after he signed the contract the plaintiff increased the amount from $140 to $154.95, and that, as he signed as guarantor, he was relieved of all responsibility.

We are not impressed with the defendant Biri’s testimony that he did not understand the obligation that he was assuming in signing the contract. The agreement does not say anything about merely recommending Miss Walters, and plainly shows that he was binding himself as a guarantor. His statement that he was relieved of his obligation because the amount of the contract was increased by the plaintiff is equally without merit because it was established that he was the one who gave the .order to increase the amount of the account.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,993
    Orleans
    NEW ORLEANS TERMINAL CO. v. DIXIE RENDERING, INC.
    (March 21, 1932. Opinion and Decree.)
    (April 18, 1932. Rehearing Refused.)
    (April 23, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Monroe & Lemann and Walter J. Suthon, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

New Orleans Terminal Company sues Dixie Rendering, Inc., for $796.21, claiming that amount to be the balance due for repairing, under contract, a switch' track belonging to defendant and connecting with the tracks of plaintiff company.

The district court dismissed the suit on exception of no cause of action.

Exceptor maintains that the contract under which plaintiff undertook to make the repairs is evidenced by two certain final letters into which all prior negotiations and correspondence had become merged and, according to exceptor, in those letters it was understood that $2,070 was to be the total cost of the repairs. It is therefore argued that, since the said sum, $2,070, has been paid, the petition shows no cause of action.

Plaintiff asserts that the petition shows that the two letters referred to were merely the last in a long series of letters and followed some verbal negotiations, and that the said last two letters show in themselves that they do not contain the complete contract, which, according to plaintiff, can only be obtained from the oral evidence and earlier correspondence which will be offered in support of the allegations of the petition.

The two letters, which exceptor maintains, contained the entire correspondence, read as follows:

“January 19, 1924.
“Mr. E. H. Wischan, President, Dixie Rendering, Incorporated, Alabo and North Peters Street, New Orleans, Louisiana.
“Dear Sir: Referring to conversation in this office with the writer this morning.
“The following is a detailed estimate of the cost for making necessary repairs to the track serving your plant formerly known as the St. Bernard Rendering and
Fertilizer Company:
300 Cross Ties .............................. $ 270.00
1 Set switch ties _____________ 115.00
20% Tons 75-pound relay rail________ 810.00
90 Joints ___________________________ 30.00
Labor for making necessary repairs to track beyond . trestle ---------------------------- 225.00
Lumber for repairs to trestle 390.00 150# Bolts ......... 8.00
Labor for making repairs to trestle ...................................... 222.00
Total _____________________________________$2,070.00
“If you will let me have certified check to cover the cost of these necessary repairs we will instruct that the work on the track be started at once.
“Yours truly,
“Vice-President.”
“January 21, 1924.
“New Orleans Terminal Company, Q. & C.
Building, Camp & Natchez Sts., City. “Attention Mr. J. E. Fitzwilson, Vice-Pres.
“Gentlemen: Enclosed herewith please find certified check for $2,070.00 covering cost of repairs to our Switch Track as per your estimate on file.
“We understand that the rails that you are to remove are those placed there at your own expense in conjundion with St. Bernard Rendering & Fertilizing Co. when they made repairs sometime ago, now since we are assuming the entire cost of the repairs to be made as agreed we wish it clearly understood that this improvement will place us in control of this switch, in othér words the property will be our own.
“We wish to impress upon you the necessity of beginning this work at once.
“Yours very truly,
“Dixie Rendering, Incorporated,
“By (Signed) E. S. Wischan,
President.”

The petition alleges that the cost of the work was $2,866.21, and that, in the negotiations which preceded the two letters, which we have quoted in full, it was agreed that the railroad company would do the work and charge the rendering company the cost thereof, which cost was merely estimated to be $2,070, but that it was understood that, if the actual cost exceeded- that estimate, then the actual cost would be paid.

The word “estimate” contained in ihe letter of January 19th is susceptible of two interpretations. It may have been used in the sense of a “bid,” or “offer,” or, on the other hand, it may have been intended that the meaning to be thereby conveyed was “approximate,” and, in view of the allegations of the petition, it is easy to see that evidence as to the contents of -the prior correspondence and as to verbal discussions will be necessary to place upon the word “estimate,” as used in the letter, the meaning intended by the parties to be thereby conveyed.

There is, as stated by exceptor, a well-established rule of law, which, in McGuigin v. Boyle, 1 Or. App. 166, is quoted from page 372 of Greenleaf on Evidence as follows:

“When parties have deliberately put their engagements into writing in such terms as impart a legal obligation without any uncertainty as to the object or extent of such engagement it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation, or declarations, at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. In other words, as the rule is now more briefly expressed, parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.”

But here, from the documents themselves, to-wit, the letters quoted, it appears that it was probably not intended by the parties that those letters should constitute the entire agreement. But, even if such was the intention, i-t is evident that the oral evidence of verbal understandings and .of prior communications is not intended to contradict or vary anything contained in those letters, but only to supplement them, and to explain away what might otherwise be ambiguous.

The rule of law applicable to the right-of parties to supplement by parol incomplete written documents is set forth in Davies v. Bierce, 114 La. 663, 38 So. 488, as follows:

“Where a writing, although embodying an agreement, is manifestly incomplete and not intended by the parties to exhibit the whole agreement, but only to define some of its terms, such parts of the actual contract as are not embraced within its scope may be established by parol evidence. The general rule of evidence prescribed by article 2276 of the Civil Code as to parol evidence not being allowed to alter, contradict, or vary written evidence is not violated by allowing parol evidence to be given as to a distinct, valid, contemporaneous, collateral agreement, between the parties which was not reduced to writing, when the same is not in 'conflict with the provisions of the written agreement.”

That an ambiguity in a written document may be explained by verbal evidence is well settled, and this rule has been well expressed by our Supreme Court in the case of Dickson v. Ford et al., 38 La. Ann. 736, in which is found the following:

“The reason or the philosophy of the rule which, as an exception, flows logically from the very terms of the general rule, is that parol evidence, in such cases, is admitted, not against or beyond what is contained in the acts, as a contradiction of the clear recital, or legal meaning of the stipulations contained therein, but on the contrary, to give effect to the contract arising therefrom, by supplementing necessary information omitted therefrom, or to ascertain the true intent of the parties when the same is not clearly expressed or described therein.
“As thus understood and construed, the rule is not amenable to the charge that it tends to destroy or impair the sanctity or binding force of authentic acts, but on the contrary, it tends directly to enhance the validity and efficacy of such acts, by substituting light for darkness, certainty obscurity, and truth for error.”

Since we believe that evidence of the prior conversations and of the earlier communications may explain and amplify the two letters referred to, and that such evidence may show an agreement on the part defendant to pay the actual cost, it follows that the exception should not have been sustained.

The judgment appealed from is annulled, avoided, and reversed, and the matter is remanded to the district court for further proceedings according to law and not inconsistent with the views herein expressed.


text:
    No. 14,062
    Orleans
    CRESCENT CITY BLDG. & HOMESTEAD ASSN. v. CITY OF NEW ORLEANS
    (May 2, 1932. Opinion and Decree.)

      H. W. & H. M. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Micbel Provosty and Chas. A. Danna, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff, a building and homestead association, alleging that, .through inadvertence, it paid the city of New Orleans taxes in the sum of $143.76 for the year 1926 upon property standing in the name of Mrs. Anna C. Damonte, which taxes had been previously paid by some one else, brings this suit against the city of New Orleans for reimbursement. The city excepted that the plaintiff’s petition disclosed no cause of action, and, in compliance with the rules of, the First City Court, at the same time answered, denying the allegations of the petition. ' The exception was referred to the merits, and, after hearing of the cause, there was judgment in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

The exception of no cause of action is based upon the ground that a tax or assessment voluntarily paid cannot be recovered. City of New Orleans v. Jackson Brewing Co., 162 La. 121, 110 So. 110; Fuselier v. St. Landry Parish, 107 La. 221, 31 So. 678; Lisso & Bro. v. Police Jury, 127 La. 292, 53 So. 566, 31 L. R. A. (N. S.) 1141; Simpson v. City of New Orleans, 133 La. 384, 63 So. 57. Counsel for plaintiff insist that the doctrine of the cases relied upon by defendant is not applicable here, for the reason that the present suit is not “for taxes paid in error, nor for taxes excessively assessed, but for reimbursement of an amount of money paid to the City of New Orleans in error.” Reliance is placed upon Civ. Code, arts. 2301, 2302, and 2303, and upon State ex rel. Newgass v. City of New Orleans, 38 La. Ann. 119, 58 Am. Rep. 168, where it was held that under articles 2301, 2302 an artificial person (the City of New Orleans, for example), as well as a natural person, is obligated to restore whatever is paid in error, whether through mistake or otherwise. This case would appear to be in point and helpful to plaintiff’s contention, were it not for the fact that in City of New Orleans v. Jackson Brewing Co., 162 La. 121, 110 So. 110, 111, decided about forty years later, it was held that the right of recovery based upon Civ. Code, arts. 2301, 2302, and 2303, has no application to the city of New Orleans in the collection of taxes, because “they are regulatory only of the rights of private parties making and receiving payments in error, whereas laws regulating the collection of taxes or licenses are sui generis and constitute a system to which the general provisions of the Civil Code have little, if any, application. Lisso & Bro. v. Police Jury, 127 La. 292, 53 So. 566, 31 L. R. A. (N. S.) 1141; La. Land & Imp. Co. v. Police Jury, 156 La. 849, 101 So. 241.” In declining to permit plaintiff in that case to recover under the articles of the Code referred to, the court said:

“* * * This money went into the municipal treasury, and presumably, since the contrary is not alleged or proved, has long since been expended for public purposes in the orderly administration of the business of the city. The general rule is, in the absence of a special statute authorizing such recovery, money thus paid may not be recovered. Fuselier v. St. Landry Parish, 107 La. 221, 31 So. 678; Lisso v. Police Jury, supra; Simpson v. City (of New Orleans), 133 La. 389, 63 So. 57.”

In our opinion, the exception of no cause of action in this case should have been maintained and plaintiff’s suit dismissed.

The view we entertain with reference to the exception makes it unnecessary to discuss the merits of the case.

Consequently, and for the reasons herein assigned, the judgment is affirmed.


text:
    No. 14,066
    Orleans
    EBERLE v. DERBES
    (May 2, 1932. Opinion and Decree.)
    Wm. A. Shaw, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, ■ appellee.
   HIGGINS, J.

Plaintiff, an accountant, sues, the defendant, a certified public accountant, to recover the sum of $137.50 alleged to be due for certain fees earned by him while he was in the defendant’s employ from January 1, 1921, through March 1, 1921. Defendant denied liability. On the trial of the case on the merits there was judgment dismissing the suit, and plaintiff has appealed.

The record shows that plaintiff was em- | ployed by the defendant at a salary of $175 per month, and, in addition thereto, he was to receive 25 per cent of all fees in excess of $350 for work done or supervised by him. The parties had a disagreement, and the plaintiff resigned his position on March 1, 1921. Plaintiff sued defendant in the civil district court, and, as defendant admitted that he owed the plaintiff $561.87, and plaintiff admitted that he owed the defendant $660 for fees which he had collected from clients, the plaintiff dismissed the suit, and a written contract of settlement was entered into on May 28,-1921, whereby the parties agreed that the two claims canceled each other to the extent of the lesser' one, the plaintiff paying the defendant the difference in cash, or the sum of $98.13. In this written agreement plaintiff reserved his rights as to four items, three of which are claimed to be due in this suit.

This suit was filed on November 2, 1922, and was not tried until nine years later, or November 6, 1931, and the plaintiff makes no explanation of this unusual delay. Plaintiff in his brief abandons one item of $25 and reduces another from $62.-50 to $38.58, leaving only one item as originally claimed for the sum of $50.

The only witnesses in the case were the plaintiff and the defendant, who both undertook to support their testimony with certain records and memoranda. A careful reading of the record and exhibits leaves us with the conviction that the documents tend to support the defendant’s testimony, rather than the plaintiff’s. Only issues of fact are involved, and the case falls squarely in the category of those cases in which it has been held that an appellate court will not reverse the finding of a trial court on issues of fact merely because the evidence is conflicting.

For the reasons assigned the judgment appealed from is affirmed.


author: WESTERFIELD, J. PER CURIAM.

text:
    No. 14,100
    Orleans
    CHATMAN v. COMPANIA DE NAVEGACAO, LLOYD BRASILEIRO
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    (May 23, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    William A. Green, of New Orleans, attorney for plaintiff, appellee.
    Leslie P. Beard and Chester A. Peyronnin, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit under the Workmen’s Compensation Law (Act No. 20 of 1914, as amended). Plaintiff, a negro longshoreman, alleges that, while in the employ of the defendant company, he was injured by the falling of two sacks of coffee, which struck the handle of a truck, with the result that the truck handle struck petitioner in the back, “causing a severe contusion of petitioner’s' back and that this jolt, jar and blow and the contusion caused thereby did and has severely aggravated the hypertrophic arthritis of petitioner’s lumbar spine.’’ Pie prayed for compensation at the rate of $20 a week and for medical expenses.

There was judgment below in favor of petitioner for five weeks’ compensation at $20 a week, and $42.65 for medical expenses. Defendant has appealed.

The record shows that the accident happened on the wharf where plaintiff was employed and that he reported to the foreman of the defendant company and received a “slip” entitling him to call upon the defendant’s physician, which he did on May 13, 1931, the day after the accident occurred. He was treated by the defendant’s doctor over a period of four or five days, when he was discharged on the ground that he was a malingerer, whereupon plaintiff selected a doctor on his own account, who treated him for about four weeks. Both doctors, Dr. Gessner, who believed the plaintiff to be a malingerer, and Dr. Harrison, plaintiff’s doctor, testified. Dr. Gessner expressed his opinion that plaintiff was a malingerer, and Dr. Harrison believed that his injuries were real and his disability genuine. Dr. Harrison thought he was disabled, as the result of the accident, about six weeks. With the exception of Dr. Ane, an expert, who testified on behalf of plaintiff interpreting X-rays which were taken of plaintiff’s spine and who testified that the X-rays showed “negative fracture or dislocation hypertrophic arthritis of the lumbar spine,” only one other doctor, a partner of Dr. Harrison, Dr. Stone, gave any medical testimony. Dr. Stone was of no assistance because he testified entirely from office records which he did not keep. We have therefore a direct contradiction of medical testimony. In corroboration of plaintiff there is his own statement, for whatever it is worth, and the fact that he was sent to the defendant’s physician after having reported the accident. All physicians agree that there were no objective symptoms of injury, and all agree that he was, previous to the alleged injury, suffering from arthritis of the lumbar region. The point' on which they disagree is in fixing the effect of the accident upon the arthritis.

The trial court believed the testimony of plaintiff’s physician, and, though we are in some doubt ourselves, as it seems a very close question to our minds, we do not feel justified in disturbing the conclusions of the lower court under the circumstances. Accepting the statement of his physician that his injury disabled him for six weeks, and deducting the first week, for which compensation is not allowed, we find the plaintiff to be entitled to five weeks’ compensation. His expense for medical services is sufficiently established, and that also must be allowed.

An unsuccessful attempt was made in the trial court to have the fee of Dr. Ane, an expert witness called by the plaintiff, taxed as costs in the sum of $25. It should have been allowed. Levy v. McWilliams et al., 13 La. App. 444, 127 So. 761, 129 So. 170.

Plaintiff claims that he was. earning $30 a week. The record shows that his rate of pay was $.65 an hour, and that he worked eight hours a day, but it appears that he was not regularly employed. According to the paymaster of the defendant company, over a period from March 23 to May 13 plaintiff earned only $34.45, and the argument is that compensation should be based upon the average weekly earnings during that period. It is undisputed, however, that plaintiff worked eight hours daily when he worked and earned $.65 per hour which, if he were steadily employed, would make his weekly compensation in excess of $30 per week, and entitle him to the maximum compensation under the law, or to $20 per week, the amount he is claiming. The basis of compensation, as established by the statute, is the daily rate of pay.

“The term ‘wages’ as used in this Act is defined to mean the daily rate of pay at which the service rendered by the injured, employee is recompensed under the contract of hiring in force at the time of the injury,” etc. Paragraph 3, Section 8, Act 20 of 1914, as amended by Act 216 of 1924.

See Menzel v. Southern Stevedoring Co., 7 La. App. 703; Schneider’s Workmen’s Compensation Law, sec. 435.

For the reasons assigned, the judgment appealed from is amended so as to make the judgment read as, follows:

It is ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, Joseph Chatman, and against the defendant, Compañía de Navegacao, Lloyd Brasileiro. for compensation at the rate of $20 per week for five weeks, beginning May 20, 1931, with 5 per cent interest thereon from the due date of each installment.

It is further ordered that plaintiff have judgment in the sum of $42.65 for medical expenses.

It is further ordered that the expert fees of Dr. Ane in the sum of $25 bo taxed as costs of these proceedings.

As thus amended, .the judgment is affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our attention has been directed .to the fact that in computing the period of disability we found that the plaintiff was entitled to six weeks and deducted the first week, allowing him a total of five weeks. The record shows that the disability .totaled five weeks; consequently, deducting the first week, four weeks should have been awarded.

Our former decree is amended to this extent and rehearing is refused.