author: CLAIBORNE, J.

text:
    No. 8738
    ORLEANS APPEAL
    WILL J. GIBBONS v. N. O. TERMINAL CO., ET AL., Appellants
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Railroads—Par. 64.
    The law makes it the duty of pedestrains and drivers of vehicles upon aproaching railroad tracks to stop, look, and • listen.
    2. Louisiana Digest — Railroads—Par. 63,65.
    It will suffice, however, that a vehicle have is owp. momentum so checked and under control that it may be stopped instantly in case of necessity.
    3. Louisiana Digest — Automobiles—Par. 4.
    The presumption of law, juris et de jure, is that a plaintiff saw a thing that he should have seen had he looked, and that he failed to look at the proper time and in the proper manner if he did not see the things he should have seen by looking.
    4. Louisiana Digest — Railroads—Par. 64.
    It is not sufficient fpr a plaintiff to have looked and listened, he must have done so at the opportune time, and in an efficient manner.
    5. Louisiana Digest — Railroads—Par. 58, 60, 63.
    The failure’ of a railroad to close a gate or to have a flagman on the approach of a train will not relieve one intending to cross a track from the charge of negligence’ when, by ordinary precautions, he could have seen or heard the train.
    6. Louisiana Digest — Railroads—Par. 54, 57; Negligence — Par. 25.
    A plaintiff who is guilty of contributory negligence cannot recover, what ever may have been the negligence of the defendant.
    (Civil Code Art. 2315. Editor's note.)

      Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    Plaintiff’s automobile and defendants’ cars collided, resulting in damage to plaintiff and to his auto for which he sues defendants.
    Judgment for plaintiff.
    Defendants appealed.
    Judgment reversed.
    Henry, Cooper & Westerfield, Scott E. Beer, attorneys for plaintiff, appellee.
    Monroe <& Lemann, W. J. Suthon, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff’s automobile and defendants’ cars collided, resulting in damage to plaintiff and to his auto for which he sues defendants.

The plaintiff alleged “that on April 9th, 1921, at about 2:25 p. m. he was driving his auto on Bienville street in the direction of the lake; that as he approached the intersection of Bienville and Basin streets, he saw the gates at said intersection, which are controlled and operated by defendants up or open, and without a flagman of either company at said intersection, and without danger signals of any kind being displayed at said intersection, to warn vehicles of the approach of any train on the tracks of sai^l defendant companies which said tracks intersect Bienville street on Basin street; that as the traffic is in the direction of down-town on the river side of Basin street the attention of petitioner, after he saw the gates open and no signals displayed and no .flagman giving warning of any danger, was directed up Basin street for the approach of vehicles going in a down-town direction, and seeing no down-town traffic and seeing the gates open, and no warnings of any kind displayed, petitioner although he had come almost to a full stop, did put on speed in order to cross the intersection of Bienville and Basin streets on the Railway tracks thereon; that as petitioner was about to reach the skid track he heard some one shout “stop” and on looking down Basin street, he saw a train of passenger cars propelled by an engine of the New Orleans Terminal Co., backing into the Basin'street station; that the said train of cars had been coming up. very quietly, without warning, and petitioner’s first intimation of- its approach, was the shout of said unknown party to stop; that petitioner as soon as he heard the shout “stop”, applied the brakes and did all in his power to bring his automobile to an immediate stop, but without complete success, his automobile coming to a 'standstill with its front wheels on the track on which said train of cars was backing into the Basin street station; that said train hit the petitioner’s automobile and demolished it, and seriously injured petitioner; that the collision was the proximate consequence of the gross negligence of the defendants; that by Ordinance No. 1615 N. C. S. it is made the duty of the defendants to install gates at such crossings and to have at said gates an operator, and to keep said gates closed in case of danger, or to have proper signals of danger at such places; that the open gates and absence of an operator or of danger singáis was an invitation to petitioner to pass through said gates. The plaintiff claimed $750 for the value of his auto and $3,000 for physical injuries to himself.

The defendants admitted the- collision but denied all other allegations of the petition, and charged “contributory negligence on the part of the plaintiff, barring his recovery”.

There was judgment in favor of the plaintiff against the New Orleans Terminal Company for $800 for his auto and for $1,750 for himself and defendants have appealed.

Ordinance 1615, is filed in the transcript. It is so long that we can reproduce only excerpts from it. ' Sec's. 7 and 9; route; along Carondelet Walk, “into the neutral ground of Basin street, and thence up said neutral ground to Canal street, with as many tracks as may be necessary to make said neutral ground available for the passenger depot hereafter referred to”.

Section 5 “That said Company, its successors, and assign, shall have the right to construct, maintain, and operate a passenger depot in the neutral ground of Basin street, from Canal to the west side of Bienville street, and to that end the neutral ground shall be widened six feet on each 'side from Canal street to the Basin and the roadway across the neutral ground of Basin, opposite the en trance of Customhouse street, shall be closed with gates or doors, which shall be kept open at all times except when trains are entering or departing from said depot or when trains are standing on said tracks”.

The ordinance does not require an operator at the gate, nor that it should be closed in case of danger.

In the transcript there are also photographs of the defendants’ railroad station on Basin street.

They represent the River side of the station,' from the upper side of Bienville street down to about one hundred feet or more along Basin street towards Conti, being the whole length of the station. From those photographs it appears that the whole of that side of the station is enclosed by an iron railing or bar-fence about two-thirds of the height of a passenger car, and at a distance of three feet from the track nearest the river. The bars of the railway are several inches apart and permit a clear view through them and above them of cars within the bars and within the station.

The plaintiff testifies he saw cars within the station.

The gate is the width' of the street and made with the same kind of iron railing.

It also appears that from Bienville street down Basin street in the direction of St.’ Louis, street,- two squares below, the view is unobstructed in any manner and that plaintiff could see cars on the track furthest from him as far as Conti street. Ordinance 6173, was also offered in evidence; but as, the accident happened on April 9th; 1921,, and the Ordinance was adopted April- 19th, 1921, it can have no place in this case..

It also appears that plaintiff was not a stranger in that neighborhood. He testifies:

Q. Are you familiar with that neighborhood?
A. No, sir.
Q. Did you ever drive through there before?
A. I have been, and the gates at that time were closed. I have been in and out Iberville street.
Q. Have you ever been there when the trains were passing?
A. Yes.
Q. Were the gates closed or open?
A. Closed.
Q. Have you ever been there when the gates were open and passing through?
A. Yes.

There is no controversy about the facts of the case. The plaintiffs’ auto-was moving very slowly. It had come almost to a stop on reaching Basin street, and had no distance to pick up speed before it reached the tracks except the width of the- street.

When the plaintiff got about the middle of Basin street, some one called out “stop”, and he put on the brakes, and his front wheels were on the front platform of the train which hit him, about the middle oL the gate and jammed him between a pillar of the gate and the train.

The train of cars, as testified by a companion of plaintiff in his auto,'-at the time of the accident, • “Was apparently dragging slowly along”, or as stated by other witnesses, at about five or six miles an hour.

The train consisted of four passenger cars, and two baggage cars which were being “headed in”, or pushed into the station by an engine. Upon- the platform nearest Canal street of the passenger car nearest Canal street were two employees of defendants standing upon the steps on either side of the car.

One was handling the “monkey tail” hose, which is a whistle for stopping the train, called an air whistle; he was blowing it frequently going into the station, all the way from St. Louis street in; when he reached ten feet of the crossing he saw plaintiffs car turned toward Canal street with its wheel on the track; he applied the air on the emergency brake to stop at once; he stopped within thirty feet; the engineer’s brake is not as powerful as the air brake. The other man was also acting as guard or watchman and corroborates the testimony of the man handling the monkey tail.

The law makes it the duty of pedestrains and drivers of vehicles, upon approaching railroad tracks to stop, look, and listen.

116 U. S. 366, Nos. 8288-9286, Ct. App., 168 Fed. 21.

Ellen Murray vs. Pontchartrain Railroad Company, 31 La. Ann. 492.

Mrs. B. Hauch vs. Hernandez, 41 La. Ann. 993, 6 South. 783.

Herman Herlisch vs. The Louisville, New Orleans and Texas Railroad Company, 44 La. Ann. 280, 10 South. 628.

Barber Asphalt Paving Company vs. H. R. Gogreve, 41 La. Ann. 268, 5 South. 848.

Joseph Vincent vs. Morgan’s Louisiana and Texas Railroad and Steamship Company, 48 La. Ann. 933, 20 South. 207.

Hoelzel vs. Crescent City R. Company, 49 La. Ann. 1302, 22 South. 330.

Dieck vs. New Orleans City and Lake R. Company, 51 La. Ann. 262, 299, 124, 25 South. 71.

Tatum vs. Rock Island, A. and L. R. Company, 124 La. 921, 50 South. 796.

'State vs. Besancon, 128 La. 87, 54 South. 480.

Burke vs. New Orleans Ry. and Light Company, 133 La. 369, 63 South. 51.

Callery vs. Morgan’s Louisiana and Texas R and S. S. Company, 139 La. 763, 72 South. 222.

Howell vs. Vicksburg S. and P. Ry. Company, 144 La. 427, 80 South. 613.

Lampkin vs. McCormick, 105 La. 418-427, 29 South. 952.

Ross vs. Sibley, 116 La. 789, 41 South. 93.

It is not required, that under the jurisprudence of this State, that vehicles should come to a complete stop. In Aymond vs. W. U. Telegraph Co., 151 184, the Supreme Court said on p. 187:

“As to the obligation to stop before crossing a railroad track, that must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility but common sense and common practice both indicate that it. will suffice for such person to have his own motion so checked and under control that he may stop instantly if need be.”

The plaintiff testified that on his way out Bienville street he stopped when he reached Basin street he was then about sixty feet from the railroad station. He then proceeded at slow speed.

The train of cars was also at that very time moving upon the track nearest the river up Basin street at the same moderate speed. The automobile and the train of cars collided in the middle of Bienville street. This shows that at the time plaintiff’s auto stopped, the train must have been at the same distance from the point of collision that the plaintiff was, that is about sixty feet, more or less. In other words when plaintiff stopped, the train was about sixty feet from the center of Bienville street. The line of vision between the place where plaintiff was and the place where defendant’s cars were formed one side of a triangle, it might be the hypotenuse, not much longer than either of the two other sides. The train was in plain view of the plaintiff, unobstructed save by the fence bars. Through them plaintiff could see the train; and if he could not see through the bars, he could see above them, for, as we have seen, the cars over-topped the railing by about one-third of their height. These cars were moving, and it is true that a moving object catches the eye better than a stationary one. It. is on this principle, that the disappearing light-house is built. The train of cars could have been seen coming up Basin street, not only sixty feet from Bienville street, but more than three hundred feet down to Conti street.

It was broad day light.

But plaintiff says that he looked, but did not see any train on the track. That is his fault or his misfortune. The law is not satisfied with a plaintiff looking and not seeing; he must look at such a time and in such a manner as he may see things that he should have seen if he had looked properly.

The presumption of law, juris et de jure, is that a plaintiff saw a thing he should have seen had he looked, and that he failed to look at the opportune time and in the proper manner if he did not see the things he should have seen by looking properly. Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 South. 250; Hubby on Autos, p. 397, S. 33.

In the case of Provost vs. Rrd., 52 La An., 1894, 28 South. 305, the court said on p. 1900:

“The stopping, the looking, and the listening must be made at such a time and place as to make it judicious and sufficient to save the situation”. Quoting John Snider vs. New Orleans and Carrollton Railroad Co., 48 La. Ann. 1, 18 South. 695.

In Walker vs. Rodrigues, 139 La. 251, 71 South. 499, the court said on p. 254:

“Defendant Rene . Rodriguez, who was driving the machine, looked too late to see the oncoming West End train to have averted an accident, and to have looked too late was not to have looked at all. Tolbert vs. Freeman, 130 La. 48, 57 South. 580; Boylan vs. New Orleans Ry. and Light Co., 139 La. 185, 71 South. 360. It was gross fault on his part not to have looked and listened for the steam train at . the crossing. His neglect to do so was inexcusable. C. C. 3556, Nofl. 13; see also Perrin vs. New Orleans Terminal Company, 140 La. 818, 74 South. 160; Callery vs. Morgan’s Louisiana and T. R. and S. S. Company, 139 La. 763, 72 South. 222; Nolan vs. Illinois Central R. Co., 145 La. 483, 82 South. 590; Young vs. Louisiana Western R. Co., 153 La 129, 95 South. 511.”

The plaintiff also testifies that he did not hear the rumbling of the approaching cars nor the sounds of the air whistle. That they existed, however, t.o a certain extent is a fact. If the plaintiff did not see the, approaching cars, it was equally possible that he did not hear them coming. He also testifies that he did not see the two employees on the rear platform. The fact is they were there. It must have been because plaintiff’s attention was engaged elsewhere.

The trial judge in an elaborate written opinion found as a fact that the plaintiff did not look or listen because, if ‘he had, the accident would not have happened. But he concluded that by leaving the gate open the defendant had tacitly told the plaintiff that .there was no danger >in passing and had invited him to pass and was therefore : guilty of negligence.

We are of the opinion, however, that .the plaintiff was" guilty primarily' of such negligence as precludes him from recovery. Joseph P. Martinez and the State, J. P. Martinez vs. State Tax Collectors and City of New Orleans, 42 La. Ann. 682, 7 South. 796; Scholefield, Goodman & Company vs. Succession of B. J. West, 44 La. Ann. 280, 10 South. 806; Douglas Blackwell vs. the St. Louis Iron Mountain and Southern R. R. Co., 47 La. Ann. 268, 16 South. 818; John Snider vs. New Orleans and Carrollton Railroad Company, 48 La. Ann. 1, 18 South. 695; Hemmingway vs. New Orleans C. and L. R. Co., 50 La. Ann. 1087, 23 South. 952; Ponsano vs. St. Charles St. R. Co., 52 La. Ann. 245, 26 So. 820; Lampkin vs. McCormick, 105 La. 418, 29 South. 952; Borell vs. Cumberland Telegraph and Telephone Company, 133 La. 631, 63 South. 247.

All the authorities quoted by plaintiff apply to cases where the view of approaching .trains was obstructed, or where the plaintiff, by the exercise of diligence, could not have seen the trains. Lincks vs. Illinois Central R. R. Co., 143 La. 445, 78 South. 730.

'In Nolan vs. Rrd., 145 La. 483, 82 South. 590, the court said on p. 490:

“Persons using railroad tracks are held to the exercise of ithe care that the danger of the situation makes necessary; and a person about to walk upon a railroad track must look, and listen for approaching .trains; ¡and.;where he fails to do so; and ¡walks upon the ¡ track in such close prox-, , imity :tq a.n- approaching train as to be ¡struck .by. it., before it can be stopped,-: he ,is gui-lty .pf¡ such, negligence as will pre-. :clude a,., recovery in; 'damages for -his ¡death; ancl <tjie fact, that .the . traip. ¡.was . negligently operated will not render the company liable.” White vs. Illinois Central R. R., 114 La. 825, 38 South. 574; Gajan vs. Patout & Burguieres, 135 La. 161, 65 South. 17; Jones vs. Sibley L. B. & S. Ry. Company, 121 La. 39, 46 South. 61; Leader Realty Co. vs. Lakeview Land Co., 133 La. 646, 63 South. 253; Tatum vs. Rock Island Ry. Co., 124 La. 921, 50 South. 796; Harrison vs. Louisiana Western R. Co., 132 La. 767, 61 South. 784.

But the plaintiff argues, and that is his only hope of recovery, that it was negligence on the part of the railroad to have omitted to have a flagman to signal the approach' of the cars, and to have left the gates across Bienville street open, which indicated to him that the road was clear and acted as an invitation to him to cross without further investigation.

Gates and flags are merely a form of warning.

But what better warning could have been given plaintiff of the presence of danger than the station itself and the tracks that ran along its length and the approaching cars. They acted as a red light bringing home to plaintiff the danger as effectively as a gate or flagman. Joseph Vincent vs. M. L. and T. Ry. and Steamship Co., 48 La. Ann. 933, 20 South. 207.

Plaintiff should have known that in the use for which the station was built and the rails laid, trains were likely to come and go at any and all times. In the case of Jos. Vincent vs. M. L. and T. Ry. and Steamship Co., 48 La. Ann. 933, 20 South. 207, the court said:

.“Parties having occasion to cross a car track must bear in mind that in the management and business of railroads special trains are liable to be sent forward at any moment, and that the rule that a person "before attempting to"'cross a track must stop, look, and listen to guard against danger, is not confined to certain hours of the day or night, or limited to particular 'trains.”

"The mere omission of train signals will .not. subject the Railroad Co., to damages :if the traveler struck by the locomotive attempts to cross the track without observing usual precautions to avoid, such accidents. Eyma Brown vs. T. and P. Ry. Co., 42 La. Ann. 350, 7 South. 682; Britton & Koontz vs. Harvey, 47 La. Ann. 259, 16 South. 747; Loftin vs. L. R. and N. Ry. Co., 135 La. 33, 64 South. 972.

Nor did the fact that the gate was open absolve the' plaintiff from the duty to look and listen,- and to take necessary precautions.

In Brown vs. Rrd., 42 A. 350, the court said:

“Statutes and municipal ordinances in every jurisdiction prescribe specifically the dujiy of railway corporations in respect to railway crossings; but no failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing upon approaching a . railway crossing; and whenever the due use ' of 'either sense would have enabled the injured person to escape the danger the injury. is conclusive evidence of negligence, , without any. reference 'to the railroad’s ' failure to perform its duty.”

The fact that a gate is open does not excuse on? from looking and listening before crossing, particularly when the view is unobstructed. 61 Fed. 375, 157 Fed. 168, 168 Fed. 21, 179 Fed. 577, 223 U. S. 718, 229 Fed. 82, 285 Fed. 97, 262 U. S. 746, 290 Fed. 165, 8 So. 518, 3 L. R. A. 44, 108 Atl. 175, 99 Atl. 694, 104 Atl. 883. 120 Atl. 449, 40 N. E, 270, 32 N. E. 227, 27 N. E. 270, 32 N. E. 227, 27 N. E. 161, 59 N. Y. 468, 28 N. E. 149, 75 Atl. 912, 111 N. E. 960, 160 N. W. 261, 153 Pac. 731, 113 S. W. 1163, 89 N. E. 625, 84 Uac. 176, 88 S. E. 178, 33 Atl. 24, 93 Atl. 701, 94 Atl. 509, 124 Atl. 284, 93 So. 564.

Ordinance 1615 does not make it the duty of the Railroad to keep the gate closed, but, on the contrary, orders that it shall be open at. all time except when trains are passing. The object is to allow traffic to go and come, except necessity require the street to be closed.

The rule is tersely and correctly stated in 33 Cyc. 947-227 Pac. 840 as follows:

“The duty of the Railroad to close the gate exists as to all who could see the train, but not to one who sees the train going in front of him.”

But assuming that it was the duty of the Railroad to have closed the gate the law is that when the plaintiff is guilty of negligence he cannot recover notwithstanding the negligence of the defendant. Volenti non fit injuria. C. F. Berens vs. J. P. Dupree, 6 La. Ann. 494; Arthur Choppin vs. New Orleans and Carrollton R. R. Co., 17 La. Ann. 19; Allen, West & Bush vs. J. E. Nettles, 39 La. Ann. 790, 2 South. 609; Riddick vs. Sepulvedo, 145 La. 490, 82 South. 677; Massett vs. Keff, 116 La. 1107, 41 South. 330; Cornelius McCarthy vs. the Whitney Iron Works Co., 48 La. Ann. 981, 20 South. 171; Bridges vs. Kinder and N. W. R. R. Co., 149 La. 417, 89 South. 309; Hall vs. Allen Mfg. Co., 133 La. 1079, 63 South. 591; Williams vs. Liberty Stores, Inc., 148 La. 450, 87 South. 233.

In such a case plaintiff is the author of his own loss, id. S. 470.

In Jeansonne vs. Rrd. 100 So. 410, the trial court found that, defendant had failed to give the proper signals, but that plaintiff could not recover because deceased was also guilty of negligence in not exercising ordinary care for his own safety”. The Supreme Court said: “The case therefore turns almost entirely upon questions of fact. Since, if deceased was guilty of contributory negligence, it would be unnecessary to inquire into defendant’s conduct. We take up first the point upon which the lower court rejected the plaintiff’s demand i. e., the question of whether her husband’s fault contributed to his death”. Nothing separated the deceased from the crossing except a picket fence extending a distance of 40 or 50 feet; but it was shown that the top of the train could be seen practically all the way along. The court said: “He (deceased) had at least- 40 or 50 feet clear view of the approach of the train, and could easily have stopped on an up grade had he once looked to the left for his own safety, as he was bound in law to do, we think deceased was unquestionably guilty of very gross negligence which bars his recovery, regardless of the fault of defendant. Bank of Napoleonville vs. Knobloch & Rainold, 144 La. 100, 80 South. 214; Young vs. Louisiana Western R. Co., 153 La. 129, 95 South. 511; Tucker vs. Illinois Central R. Co., 141 La. 1106, 76 South. 212.

The argument of plaintiff would require us to reverse the law and to decide that a negligent defendant is liable, however, negligent the plaintiff might have been. But no negligence has been fixed upon the defendant. The case would have been entirely different had defendant’s car been concealed from view and had suddenly emerged from behind some obstruction which concealed them from view; but the cars in this case were in full view.

But even if defendant had been at fault, plaintiff cannot recover if by the exercise of ordinary care he could have avoided the accident.

In the case of Mc Carthy vs. Whitney Iron Works, 48 A. 978, 20 South. 171, the court said:

While it is the duty of the master to keep his premises in safe condition, a servant will be denied relief for injuries caused by their unsafe condition, if the servant could have avoided the injuries.

In Williams vs. Liberty Stores, 148 La. 450, 87 South. 233, the plaintiff stumbled over a box left in an aisle of defendant’s store. The court said:

“It was negligence on the part of the defendant to leave the box in the aisle. She, plaintiff, should and could have seen the box if she had exercised reasonable care and caution, located as it was on the floor at the other end of the aisle, and no person was in the store but herself and the cashier. Defendant pleaded contributory negligence on the part of the plaintiff and the negligence on her part was proved by her own evidence, and thus, being at fault, it is well settled that she cannot recover damages”. 1 Sedwick on Damages p. 165 S. 93.

The evidence does not satisfy us that the train could have been stopped sooner than it was. It stopped within thirty 'feet after the watchman saw the plaintiff. Hrom the situation it was easier for the plaintiff to see the train.

It is therefore ordered that the -judgment herein be reversed and set aside; and it is now ordered that there be judgment in favor of defendants rejecting plaintiff’s demand at his costs in both courts.

Judge Westerfield, being of counsel, being recused.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 8717.
    Orleans Appeal.
    ACME BURLAP BAG CO. v. THE HARDIN BAG CO., INC.
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. -222.
    Verbal testimony is rightfully excluded when offered for the purpose of varying the clear and unambiguous terms of a contract of sale, which is evidenced by letters and telegrams admitted to have been exchanged between the parties.
    2. Louisiana Digest — Sales—Par. 116, 126.
    Where an offer to purchase merchandise, f. o. b. at point of shipment, is accepted unqualifiedly by the seller, there residing, and where the seller is authorized to send the goods to the buyer, delivery of the goods to a carrier, whether named or not by the buyer, is deemed delivery to the buyer, and the latter must bear such losses as may occur to the goods while in transit.
    (Articles 2458 and 2460 of the Civil Code do not apply because this is a New York contract. Editor’s note.)
    3. Louisiana Digest — Sales—Par. 126.
    In the absence of specific instructions, the seller is not obligated to insure for account of the buyer. •
    4. Louisiana Digest — Reconvention—Par. 19, 20.
    A demand in reconvention based upon matters shown to have been already adjusted by compromise will be rejected.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “D”, Hon. Porter Parker, Judge.
    This is a suit, for the balance of the purchase price of burlap bags bought in New York. There -was a- demand in re-, convention.
    There was judgment for plaintiff and defendant appealed.
    Judgment' affirmed.
    Milling, Godchaux, Saal & Milling, attorneys for plaintiff and appellee.
    Dart, Kernan & Dart, attorneys for defendant and appellant.
   BELL, J.

The appeal herein is taken from a judgment in favor of plaintiff for the amount prayed for and rejecting defendant’s demands in reconvention.

By numerous telegrams and letters — and in no other manner — the parties to this suit contracted for the purchase, sale and shipment, f. o. b. New York, of one hundred and fifty thousand second-hand sugar and burlap feed bags for the total price of $14,375.00.

Plaintiff, a New York seller, sues defendant, a New Orleans buyer, for what it claims is a balance due on the above purchase price after total credits for the salvage on certain bags damaged while in transit and amounting to $2,950, and after further credit for cash payments of sight drafts, amounting to $10,781.25. These credits on account of the purchase price, above-stated, leaves a baiance of $643.75, the amount herein claimed, and for which judgment, with 5 per cent interest from September 14, 1919, has been rendered. The account sued upon is fully set out in plaintiff’s supplemental petition, as follows:

100.000 feed bagsatl0%c each .......... $10,500:00
50.000 sugar bags at 7%c each —................... 3,875.00
$14,375.00
Less 18,500 damaged feed bags at 10 %c each________ 1,942.50
and 13,000 damaged sugar bags at 7%c each.......... 1,007.50
2,950.00
$11,425.00
Less cash paid on account________________ 10,781.25
$643.75

The only pleaded defense to this suit is in substance to the effect that the goods were purchased subject to inspection after arrival in New Orleans, and that because of .this condition the bags were at. the risk of the seller, who must, therefore, bear all loss or damage incident to transportation and arising before delivery to, or acceptance by, defendant. Under this defense, it is further alleged by defendant that in order to procure possession of the undamaged portion of the shipment which it accepted after inspection at New Orleans, it was compelled by the carrier steamship company to pay the sum of $718.75, as general average charges bearing on the whole shipment. It is finally averred by defendant that it has paid to plaintiff the sum of $500 in full compromise and settlement of all differences between the parties; that nothing is, therefore, due to defendant, but that should.the compromise be held invalid for any reason, then allowances for this amount paid in compromise, to-wit: $500, together with the payment of general average charges, to-wit: $718.75, or a total credit of $1,218.75 should be given defendant, as against the balance of $643.75 claimed by plaintiff. To the extent of this difference, to-wit: $575, defendant and appellant, assuming the position of plaintiff in reconvention, has prayed unsuccessfully for a judgment against plaintiff in the main action. Upon the issues established by the pleadings, the case resolves itself into the simple, but important, question of fact; what differences were settled by the compromise?

The original contract, as well as the agreement of compromise, is evidenced entirely by correspondence and telegrams between the parties. It is only from these sources that the intention of the parties can b© determined. Exclusion by the trial court. of any testimony tending to vary these agreements was entirely correct. The' contract sued upon having been admitted by defendant in its answer and the. compromise arising therefrom having been pleaded by defendant, in complete discharge of all liability, defendant was precluded from pleading or from attempting to pfove any condition at variance with or which would in any wise tend to amplify the, expressed agreements found in the letters and telegrams. It is plain from these documents, especially Exhibits 30 to 37, that defendant’s offer and plaintiff’s acceptance of the compromise, was only in respect to the differences between the parties as to which of them should bear the losses'’incident to the marine disaster, and that ¡such losses consisted of the general average charges, as well as the actual loss or damage to about sixty-three bales of bags, forming part of the entire shipment. It is.- but necessary to quote in part from four of the innumerable letters found iri the récord.

On September 13, 1919, defendant wrote plaintiff in part as follows: ,-.

“9/13/19.
Acme Burlap Bag Co.,
89 Waterbury St.’,
Brooklyn, N. Y.
In re: Bags ex SS. ‘Hamilton’. Gentlemen:
^ * ‡
“For your information the Southern. .Pacific Steamship Co. called on us here for 5% of the total amount of your invoices as part of the general average fund ■ and we have paid same to them amounting to $718.75. So far only 200 bales of the. entire shipment of 300 have arrived here in New Orleans and we understand there-are 37 bales on the SS. ‘Creole’ due here tonight.
Very truly yours,
J. W. HOHENSTEIN,
JWH:P Vice-President.”
On January 20, 1920, after innumerable letters and telegrams had been exchanged, defendant wrote plaintiff as .follows:
“1/20/20.
Acme Burlap Bag Co.,
89. Waterbury St.,
Brooklyn, N. Y.
Gentlemen:
You will please pardon our delay in” answering your tracer of January 8th, requesting a definite statement of our position regarding damaged ‘ bags shipped on the SS. Hamilton.
, .The reason for' this delay, has been due to our having requested our attorneys to. again rehearse all of the facts in connection with, this case. They notified us'yesterday that they have found nothing to change their original opinion — that we had a very good defendable case and they are not willing for us to accept your proposition for an- arbitration.
. .As .,-stated in a previous -letter, in the event you should decide to enter suit against ús to determine who is right or wrong in this Matter, we would of course have to defend' ourselves, which would cost us attorneys’ fees, aMounting to say four or five .hundred dollars. We would prefer to have you get this Money than the lawyer.
Our business relations with you good people have been altogether pleasant, and we, still cling to the hope that this very regrettable occurrence may prove susceptible of 'adjustment outside the courts.
Yours very truly,
J. W. HOHENSTEIN,
JWH:EB Vice-President.”

On January 24, 1920, plaintiff replied to defendant’s letter of January 20th, as follows:

“1/24/20.
Hardin Bag Co.,
New Orleans, La.
Gentlemen:
We have your letter of Jan. 20th further referring to the damaged bags on the Steamship Hamilton.
Although we feel that you are entirely liable, and we feel that we have shown you good reasons for the liability being with you, we have decided to accept your offer of five hundred dollars. ($500.00) in settlement and if you will let us have your check- at once for this amount we will close the matter.
While writing we want to say that we are surprised that you have not sent your check'to balance our invoices of Nov. 18th and Dec. .2nd, as per statement enclosed. These bills are very much past due, especially the first item, and we do not understand why you have not sent your check for the $643.75 balance due as per our letter of Dec. 18th. .. -
Will you please let us have your check, gentlemen, for the $643.75 and for the $500:00 -in settlement of the dispute and for the balance due ;On our invoices of Novem-. ber 18th and December 2nd?
Respectfully,
ACME BURLAP BAG CO.,
JJW: RR. J. J. Walsh, Secy.”

The evidence shows that the general average charges‘were paid by defendant on' September 9,' 1919, and that it notified plaintiff to that effect on September 13, 1919. It follows, therefore, that this item, as well as the other items of losses arising from the marine disaster, are bound to have been included within the subject matters intended by' the parties to be wholly settled by the compromise payment of $500.00, which payment was sent by defendant to plaintiff on March 16, 1920. Under this appreciation of the intention of the parties, there could have been no. other judgment than that which is now before us for review.

The learned trial judge has rendered no written reasons for judgment, but his rightful rejection of all verbal testimony tending to vary the written evidence of a clear and unambiguous contract, justify our belief that his judicial conclusions could only have been such as now impel our disapproval of the contention urged by defendant.

Defendant contends that the goods at the time of the marine disaster were at the risk of the seller. In support of this contention it is argued that while there was no' agreement as to the mode or time of shipment, the seller should have observed the well established custom sanctified by the Uniform Sales Act, of insuring goods when shipped by sea and of notifying the buyer of his intention of adopting this method of shipment; that failure so to do on the part-of plaintiff - placed the goods at the shipper’s risk. Defendant’s reliance upon the Uniform Sales Act, particularly paragraph (3) of Sec. 46, is an admission of what appears from the record to be an indisputable fact, that is, that the contract under consideration is a New York contract and not a Louisiana contract. The latter state has not adopted this Act. There is nothing before us. to show that in the absence of specific agreement as to the ■method of shipment that the Act has imposed upon the seller the knowledge that he should, or the duty that he must, insure. We see no application of Sec. 46, paragraph (3) of the Act to the contract in question, but on the contrary other provisions of the Act, taken as the law of this case, particularly Sec. 19, Rules 1 and 5, and Sec. 46, Par. (1), are plainly against defendant’s contention.

Sec. 19. Rules for Ascertaining Intention:

“Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the case is to pass to the buyer:
“Rule 1. Where there is an unconditional contract to sell specific goods in a deliverable state, the property in the case passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, is postponed.
“Rule 5. If a- contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does npt pass until the goods have been delivered to the buyer or reach the place agreed upon.”

It is evident from the facts of this case, as already stated, that Rule 1, not Rule 5, must here apply. There can be no doubt from the terms of delivery, that is, “f. o.b. New York”, that the plaintiff was to send or transmit by carrier and not to deliver directly, the bags to defendant. This being so, Sec. 46, Par. (1) of the Act applies. Its provisions are as follows:

"Sec. 46. Delivery to Carrier on Behalf of the Buyer.
“(1) Where, in pursuance of a contract to sell or a sale, the. seller is authorized or required to send the goods, to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is deemed to be a delivery of the goods to the buyer, except in the cases provided for in Section 19, Rule 5, or unless a contrary intent appears.”

It follows from the foregoing, that from the moment of the delivery of the bags by plaintiff to the carrier, there was constructive, legal delivery to the defendant, with all attendant risks as to loss or damage (including general average charges) Upon defendant as buyer.

Defendant’s further contention that delivery was never completed because of its right to inspect, count and approve the bags at New Orleans, cannot be considered, for the reason that no such right was reserved in the contract itself, nor, as heretofore noted, is proof of such right permissible.

The provisions of Arts. 2458 and 2460 of the Revised Civil Code of Louisiana have no application to the New York contract in question. Defendant’s offer to purchase the sugar bags was finally accepted by plaintiff at New York, as per plaintiff’s telegram of June 27, 1919, and the balance of the shipment was purchased in New York for account of defendant by its New York agents, Hare & Blenhien, on July 19, 1919.

We are unable to conclude that because the contract of sale concerning both kinds of bags sold, provided, as terms of payment, that sight drafts for 75%, rather than for the total purchase price, should go forward, these facts carry any implication that the right of .inspection was a condition precedent to delivery or acceptance, and that before the happening of this condition, the goods were at the seller’s risk. No greater authority to the contrary view can be cited than that of Williston on Sales, Second Edition, page 602, which reads:

“As it is a necessary implication in F. O. B. contracts that the buyer is to be at all expense in regard to the goods after the time when they are delivered free on board,. the presumption follows that the property passes to the buyer at that time, and not before, though the goods are brought to the point of shipment and are ready for loading; and the further presumption follows that the place where the goods are to be delivered F. O. B. is the place of delivery to the buyer. The general rule, however, must be qualified by two possibilities; the first relating to the form of the bill of lading and the second to the other terms of contract. It is common where sales are made F. O. B. the point of shipment for the seller to take the bill of lading to his own order and send it forward with his indorsement accompanied with a draft for the price. Tinder mercantile usage, confirmed by the Sales Act and by statutes governing bills of lading, the property in the goods is thus reserved by the seller until the payment of the price. But it should be ob-. served, and sometimes has not been in the United States, that the seller’s retention of ownership is merely for the purpose of security, and the beneficial interest as well as the risk of loss is upon the buyer. This is well settled in England, and Section 22 of the Sales Act should remove any doubt where that statute has been enacted that the rule is the same in America; but there is cause to fear that some courts may still misconstrue the situation.”

In the Uniform Sales Act, Sec. 22, the doctrine as to Risk of Loss is stated as follows:

“22. Risk of Loss. Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not, except that—
“(a) Where delivery of the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer’s risk from the time of such delivery.”

We find no error in the judgment of the trial court. It should be affirmed.

It is, therefore, ordered that the judgment appealed from be and the same is hereby affirmed at defendant’s costs in both courts.


text:
    No. 8723.
    Orleans Appeal.
    STANLEY A. HARVEY, Appellant, v. A. J. WINTERS.
    (January 5, 1925, Opinion and Decree.)
    (March 2, 1925, Rehearing Refused.)
    (April 28, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Brokers, Par. 15,
    An owner accepting the services of a real estate agent to sell his property is 'conclusively presumed to have bound himself to pay the agent the usual commission for effecting a sale.
    2. Louisiana Digest, Brokers, Par. 17.
    In order to earn his commission a real estate agent, as a rule, must procure a purchaser within the time fixed in his contract. But if the owner continues the negotiations with the prospective buyer uninterruptedly after the expiration of the time fixed, and, within a few days thereafter, sells the property to the purchaser procured by the agent, he will owe the agent his commission.
    3. Louisiana Digest, Brokers, Par. 17..
    Where the owner, under like circumstances, consummates a sale with a purchaser procured by the broker, he is liable for his commission, although the owner sold for a price smaller than the one originally fixed in his contract with the broker.
    Appeal from Civil- District Court, Hon. Hugh C. Cage, Judge.
    Plaintiff claims a broker’s commission. Judgment for defendant. Plaintiff appealed.
    Judgment reversed.
    Woodville & Woodville. attorneys for plaintiff and appellant. •

    J. C. Henriques, attorney for defendant and appellee.
   CLAIBORNE, J.

Plaintiff claims a brok- | er’s commission.

He avers that lie is a real estate agent; that the defendant was the owner óf a lot at the corner of Napoleon Avenue and Liberty Street; that on August 30, 1919, defendant authorized him to find a purchaser for said lot; that he secured from one Silverstein an offer of $5,000; that defendant declined the same but signed a counter offer to sell for $5,750; that Silverstein signed another offer to purchase for $5,250; that the defendant herein and the said Silverstein got together on September 6, 1919, and the above property was, in due course, sold by the defendant to Silverstein foils,600 on September 30, 1919; plaintiff further alleged that the defendant and Silverstein were unknown to each other and that it was through plaintiff’s efforts that the sale was effected; that the customary commission of real estate agents for selling property is three per cent, of the purchase price. He prays for judgment for $16S.OO. i

The defendant admitted that plaintiff was a real estate agent and 'that he, the defendant, was., owner of the lo't mentioned in plaintiff’s petition; he also admitted that he had sold the property; but denied all the other allegations of the petition. He defended further on thi-ee grounds:

1st. That he did not employ the plaintiff; that the plaintiff came to him and asked him if he would not sell;

2nd. That he gave plaintiff an authorization to sell to expire on September 2nd; and

3rd. For the limited price of $5,750, and' that plaintiff did not secure a purchaser-within that-time,, nor for that price.-- ;

There was judgment for defendant and plaintiff has appealed.

The defendant admits that he is bound only by the following. document marked B.

“S. A. Harvey,
Real Estate arid Insurance.
I, the undersigned, hereby offer Fifty-seven Hundred and Fifty Dollars for the corner lot and improvements, property situated corner Napoleon and Liberty arid etc. It is understood and agreed that this offer • will irrevocably hold until Sept. 2, 1919, at 6 p. m. and etc.
New Orleans, August 30, 1919, I am the owner of the above property and agree to sell same as above offer. I agree to pay $150 commission as above, ■ and as per my contract.
(Signed) A. J. -Winter.”

The facts are that the plaintiff became aware that the defendant desired to sell his lot and that one Silverstein wanted to buy a lot on Napoleon Avenue; on August 30, 1919, at 9:30 a. m. plaintiff telephoned to the defendant to inquire if he wanted to sell his lot; defendant answered that he would sell for $5,800; between 10 and 11 a. m. of the same day plaintiff called on Silverstein and got him to make a written offer of $5,000; plaintiff, submitted the offer to the defendant who declined it; the defendant then signed the document B copied above dated August 30th agreeing to sell for $5,750; Silverstein, through the plaintiff, then made another offer in writing on September 1st for $5,250, which defendant declined to accept.

On September 2, 1919, the plaintiff wrote to the defendant the following letter:

“Mr. A. J. Winters.
Dear Sir:
I have introduced your property corner of Napoleon Avenue and Liberty ■* * * to Mrs. Sam Silverstein, and should they come to see you about it to purchase it from you, I will be entitled to a 3% commission, on the amount of sale, as I am the procuring cause in selling -the property. Therefore, please ■ protect 'me on the commission.
I_ beg to remain,
Yours very truly,
(Sighed):-, Sri A, Harvey!”'

On September 4, 1919, defendant answered this letter as follows:

“S. A. Harvey.
Dear' Sir:
Your letter to hand and so far as my agreement with you signed option until September 2, 1919, is considered now closed. Please accept this as final.
Respectfully,
(Signed) A. J. Winter.”

On the same day, September 4, 1919, the defendant telephoned to Silverstein and asked him if .he was still in the market for lots on Napoleon Avenue, and receiving an affirmative answer, defendant told him that his lot was still for sale and to come over and see him. A couple of days after, the defendant rang him up again and told him that the price was $5,600; the defendant agreed with the same Silverstein to sell him the lot for the price of $5,600; and the act of salé was actually passed and the price.paid on September 29, 1919.

Defendant admitted that he did not know Silverstein as- a purchaser before plaintiff introduced him to him. He knew plaintiff was a real estate broker, and he promised him a commission if he sold the property within three days.

1st. We have decided that when one receives ' the services of another in the line of his business, he is presumed to bind himself to pay the usual compensation for such- services. ' No. 8528 Ct. App. It is then ‘ immaterial whether the defendant sought the services of plaintiff, or whether the plaintiff solicited the employment. But in this ease every doubt on the question is removed by the admission of defendant that he would pay plaintiff a commission if he sold his lot' for $5,800 within three days.

2nd. It is true that in order to earn his commission the broker must procure a purchaser within' the time specified in his contract. But this-rule has this modification:

“If the negotiations between the principal ' and the' customer continue uninterruptedly after the expiration of the time allowed the broker, and a sale is made of which the broker is accordingly the procuring cause, he is entitled to a commission, although the sale is not consummated until after the expiration of the time limited.” 9 C. J. I. 92, pp. 608-619; 19 Cyc., pp. 254-602.

In the case of Gottschalk vs. Jennings, 1 La. Ann. 5, the defendant employed the plaintiff to sell a property; he submitted it for $50,000 to Mercer, who offered $40,000, which the defendant refused, demanding $45,000; subsequently the defendant withdrew the sale from the plaintiff and put it in the hands of Hewes, another broker, who sold it to Mercer for $40,000. Held, that plaintiff “was an efficient instrument in bringing about the sale and was therefore entitled to a commission.” The court said;

“After he (the plaintiff) had thus rendered services which eventually enured to the advantage of the defendants they could not deprive him of all compensation .by withdrawing the plan from his hands, - discharging him, and consummating the negotiation through other agents.”

In Jenkins vs. Trott, 3 La. Ann. 671, the court adopted the language of an English case in which it was held:

“That to enable a broker to recover a commission on the sale of a ship, the mere fact of his having introduced the purchaser to the seller will not be sufficient, but if it appears that such introduction was the foundation on which the negotiations proceeded, the parties cannot after-wards, by agreement between themselves, withdraw the matter from the broker’s hands and deprive him of his commission. That the broker will be entitled to his commission, if he was up to a certain time the agent or middleman between the parties, although the contract be after-wards completed without his instrumentality or interference.” The court held that to hold that the defendant could under those circumstances defeat plaintiff’s claim for a commission “would enable him- to commit a fraud upon the plaintiffs.” Barker vs. Jung, 13 Orleans Appeal 280.

In the case of Levistones vs. Landreaux, 6 La. Ann. 26, on the authority of Gottschalk vs. Jennings, I La. Ann. 5 and Jenkins vs. Trott, 3 La. Ann. 671, the judgment of the lower court was affirmed. 19 Cyc. p. 249, note 9 C. J. 617-603, 4 R. C. L. p. 319, S. 57; 2 Mechem on Agency, p. 2027, S. 2439: “It is also indispensable that the purchaser should be found within the time limited * * * unless the principal waives it.” Note 74: “If the principal, without objection, then deals with the purchaser so found, he ordinarily waives the delay.” Authorities,

In the case under consideration the plaintiff found the purchaser and brought him to the defendant within the time, although the sale was made only after the time,

3rd. The rule as to the price and other terms is the same as that as to time. In 19 Cyc. p. 249 it is thus stated:

“If a broker has brought the parties together and as, a result they conclude a contract he is not deprived of his right to a commission by the fact that the contract so concluded differs in terms from the one which he was authorized to negotiate. Where, for example, the principal consummates a sale to a purchaser found by the broker, he is liable for the commission, although the sale is made at a smaller price than that originally proposed by him to the broker.” Also 9 C. J. 600, S. 89; 4 R. C. L., p. 322, S. 59:
“The general proposition is well established that if property is placed in the hands of a broker for sale, at a certain price or upon certain terms, and a sale is brought about through the broker as a procuring cause, he is entitled to a commission on the sale even though the final negotiations are conducted through the owner, who, in order to make a sale, accepts a price less than that stipulated to the broker or terms more liberal than those the latter was authorized to accept. If this were not so it would be very easy for ah unscrupulous person and etc.” 1 R. C. L. Supp., p. 1119, S. 59; p. 1121, S. 67; 2 Mechem Agency, p. 2022, S. 2437.

Sale by owner to broker’s customer entitles broker to commission. 1 R. C. L. Supp., p. 1118, S. 58.

In 4 R. C. L., p. 313, S. 52, the case is put of a broker who procures a purchaser on terms different from those fixed in his authority. The owner is at liberty to refuse the purchaser on the altered terms. But “if he accepts, he is legally obligated to compensate the broker for the services rendered.” Id. p. 304, S. 46; 1 R. C. L. Supp., p. 1116, S. 52; 2 Mechem Agency, p. 2021, Notes.

The opinion of this court in McWilliams vs. Soule, No. 8455, is exactly in keeping with these views.

In that case we said:

“A broker who has failed to effect a sale within the time and upon the terms fixed, is not entitled to a commission upon the sale made afterwards by the owner to the purchaser originally procured by the broker, when the purchaser had abandoned all idea of purchasing from the broker and the sale was the result of new negotiations between the owner and the purchaser or persons representing them.”

The opinion in that case is in line with the decision in Lewis vs. Manson, 132 La. 817, 61 South. 835.

In 12 Ct. App. 369 and 10 Ct. App. 62 no sale was actually made.

We are aware that there are decisions not in harmony with those quoted by us. But we prefer to adopt the views herein expressed by us as better law and justice.

We conclude, therefore, that the plaintiff was employed by the defendant to sell his lot, that he procured Silverstein as a purchaser, and that, although the plaintiff did not procure Silverstein’s agreement to buy within the time nor for the price specified in defendant’s offer, yet defendant continued plaintiff’s negotiations with the purchaser procured by him and within a few days sold to his purchaser, and for that reason is liable for the commission promised by defendant of $150. Huger vs. Ransom, 134 La. 696, 64 South. 682.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment condemning the defendant, A. J. Winter, to pay to the plaintiff, Stanley A. Harvey, the sum of One Hundred and Fifty Dollars with five per cent per annum interest from November 18, 1919, till paid, and all costs of suit.


text:
    No. 8751.
    Orleans Appeal.
    MAY HOSIERY MILLS v. HANDELMAN & DREYFUS.
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    Conclusions of the trial court involving only issues of fact as to a breach of contract for sale of merchandise and the quantum of damages allowed thereunder, will not be disturbed by an appellate court unless clearly erroneous.
    Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    This is a suit for damages arising out of a breach of contract.
    There was a judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Merrick Schwarz, Morris B. Redmond, attorneys for plaintiff and appellee.
    Jos. Rosenberg, attorney for defendant and appellant.
   BELL, J.

This is a suit for damages arising from a breach of contract by which the purchaser of certain merchandise is alleged to have rejected the shipment without -legal cause.

Defendant’s answer is, in effect, a gen eral denial, but further answering, defendant avers that the goods delivered to him were of inferior and defective grade and not up to sample or in accordance with representations of plaintiff’s agent.

The suit involves issues of-fact exclusively, and after examination of the testimony and documents found in the record, we find no error in the conclusions of the trial judge, to whose reasons for judgment we lend our approval, adopting the same as our grounds for affirmation. The trial judge has reviewed the case as follows:

“It is perfectly plain to me that the defendant in this case bought ‘seconds’ which is an inferior grade of goods, and because they are inferior they were bought at a lower price. The testimony of the defendant’s own expert witnesses, especially the second one put on the stand, shows that-the defects complained of as justification of the rejection of the goods, are the very defects that render them ‘seconds’, and render them salable at a lower price. Witness after witness has testified that lightness in weight will take a piece of hosiery out of ‘first class’ and throw it into the ‘second class’. Witness after witness testified that off color would take a piece of hosiery out of ‘first class’ and throw it into ‘second class’, and one of the witnesses for the defendant, Mr. Dressner, says, that in black, slight off color amounted to very little.
“I am satisfied that the rejection of these goods was not caused by the fact that they were not properly classified as ‘seconds’ and properly fell into that classification, but that the market fell overwhelmingly, and the defendant found’ himself loaded up with these goods, which he would be obliged to sell at a loss, and the court takes judicial cognizance of the fact, that when this terrific crash and epidemic of what business men called ‘caneelitis’ broke out all over the United States, these defendants were infected with it. It is plain that Handleman & Dreyfous had a pretty bad case of it, and the case is against them. They insisted on sending the goods back, and it was the duty of the plaintiff to sell them and fix the damages. The plaintiff sold them at public auction, at full notice to the defendant so that the defendant could state in the defense that there was nothing fraudulent or illegal in the auction sale. It is the fairest sale I know of, where full notice is given to the defendant, for whose account the goods are to be sold, so that he may protect himself against the goods bringing too little at the auction by bidding up to what they are worth.
“The testimony seems to me to prove the amount of damages claimed, and there will be judgment for the plaintiff as prayed for.”

We have not been favored by briefs from either appellant or appellee.

It is, therefore, ordered that the judgment herein appealed from be and the same is hereby affirmed, at defendants’ costs in both courts.


text:
    No. 8770.
    Orleans Appeal.
    LITTLE PLAYERS FILM CO. v. HARCOL FILM CO., Appellant.
    (January 5, 1925, Opinion and Decree.)
    (January 19, 1925, Rehearing Refused.)
    (February 6, 1925, Decree of Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Conflict of Laws — Par. 4.
    The capacity of a plaintiff to sue is governed by the law of his domicile.
    2. Louisiana Digest, Mortgages — Par. 11; Bills & Notes — Par. 41, 124.
    Taking a note in payment of a pre-existing debt constitutes a holder in due course, it being sufficient consideration
    Appeal from Civil District Court, Hon. Wynne G. Rogers, Judge.
    This is a suit upon a promissory note. Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dart, Kernan & Dart, Leo L. Duburg, attorneys for plaintiff and appellee.
    H. W. Robinson, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note. It was filed October 26, 1921.

The plaintiff, a corporation domiciled in Illinois, alleges that it is the holder and owner of a promissory note for $466.67, dated February 20, 1921, payable ninety days after date to the order of the- Wholesome Film Co. and by it endorsed to the order of plaintiff.

The defendant denied all the allegations of the petition and averred that on February 3, 1921, it made a contract with' the Wholesome Films Co. for the exclusive fight to show certain picture-films in Louisiana, by which defendant was to receive from said company three films, for which defendant agreed to pay $2,250 if printed on non-inflammable films; that defendant paid on account of the price $1,000 cash, and for the balance made three notes each for $466.67, maturing 30, 60, and 90 days, payable to the Wholesome Films.Co.; that the said Wholesome Films Co. never delivered said films according to- contract, but delivered only one film on non-inflammable film, which was neither tinted nor toned nor of the length contracted for,;and subsequently said Wholesome Films'Co: admitted its fault and agreed to return all of said notes, which it failed to do; that the plaintiff did not acquire the nóte sued on before maturity for a legal consideration, but, on the contrary, that the plaintiff herein has been absorbed by the’ Wholesome Films Co. and that it has ’no distinctive corporate entity. The defendant therefore pleads want of consideration and prayed that plaintiff’s demand be rejected.

The defendant issued interrogatories' to the plaintiff by which, when answered, it appeared that the plaintiff corporation' had been dissolved on .February 2, 1920,' and that it does not transact business; that it acquired the note sued on, on March 5, 1921, in the manner following-;, that: the Wholesome Films Co. was indebted.-, to plaintiff, the Little Players Film; Co/, on two promissory notes of $500 each-, .with interest, due September 15 and Oetpber , 15, 1919; that said Wholesome Films,-. Co. turned over to the plaintiff in payment- of the note due September 15, 1919, a check for $50.67 and the note of $466.67 sued on; the plaintiff company was not absorbed by the Wholesome Films Co. and had no other business with it except that mentioned above.

Upon filing these answers to the interrogatories, the defendant filed an excepiton to the capacity of plaintiff to stand in judgment on the ground that it was a dissolved corporation and that no liquidator or receiver was made a party plaintiff.

There was judgment for plaintiff and defendant has appealed.

The defendant resists plaintiff’s demand on two grounds:

1st. That the plaintiff has no capacity to stand in judgment.

The capacity of the plaintiff to sue must be governed by the laws of Illinois, its domicile. In Williams vs. Pope Manufac-. turing Co., 52 La. Ann. 1417, 27 South. 851? a married woman domiciled in Mississippi and capacitated under the laws of that state to institute suit and stand in judgment in that state was adjudged to have like capacity to sue in her own name in the courts of Louisiana.

See also 128 Fed. 332, 142 Fed. 287.

The General- Corporation Act of Illinois, Sec. 14, provides:

“All corporations organized under the laws of this State, whose powers may have expired by limitation or otherwise, shall continue their corporate capacity for two years for the purpose only of collecting debts due such corporation, and selling and conveying' the property and effects thereof. Such corporation shall use their respective names for.such purposes and shall be capable of. prosecuting and defending all suits at law or in equity.”
“The statute limits the institution of suits to two years, but does not prevent the prosecution of suits beyond that time.”

Hale on. Corporations in Illinois, Sec. 314, 176 Ill. 48, 242 Ill. 50, 10 Cyc. 1324.

The act of the corporation in taking the note sued on in payment of a. note - due to it did not constitute doing business, but on the contrary it was a collection. 8 Fletcher Cyc. Corporations, p. 9177, Sec. 5572.

■ 2nd. The second ground is that taking a note in payment of a debt does not constitute a holder in due course. •

‘ In Hammond State Bank vs. Perrin, No! 8695, we had occasion to examine that question under the Negotiable Instrument Act, Sec. 52 of Act 64 of 1904, p. 155. That act did not purport to change the prior jurisprudence on the subject, but only to establish what the law was. In that case we said:

“It is not necessary in order to be a holder in due course, that one should have acquired the instrument ‘as owner’; any holder having advanced, money' on the faith of the instrument as purchaser, pledgee, or creditor, or who has otherwise acquired rights to or upon the instrument is a holder in due course.” r

We have no doubt that the plaintiff who parted with a valuable note and took in payment of it the note sued on is a holder in due course within the meaning of the act. Brannan’s Neg. Inst. Law, p. 54, 105 Tenn. 521; O’Keefe vs. Handy, 31 La. Ann. 832; Flower vs. Noble, 38 La. Ann. 939.

Judgment affirmed.


text:
    No. 8771.
    Orleans Appeal.
    JOHN L. COLAS v. ARMSTRONG DONALDSON ET AL.
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Error and Mistake— • Par. 8.
    Where the actual property, exclusive; of buildings or improvements, acquired by “A” is shown to be different and mtich. less in area and boundaries than that which he intended to purchase; .and-, he. in turn conveys to “B”,. under .sirpilar. erroneous descriptions, both parties', only learning of the error after "B’s” acquisi tion, the real motive supposedly prompting the later or subsequent purchase by “B”, is wholly -lacking. Under such conditions, an action of nullity brought by “B” will be maintained, though prejudicial to “A”, the party first in error. • (Civil Code» Art. 1824, 1847, Par. 9. Editor’s note.)
    2. Louisiana Digest — Bills and Notes — Par. 44;. Mortgages — Par. 31.
    Judicial annulment of a sale of real estate carries with it the cancellation of a mortgage note given in part consideration of the purchase price, and which is in the hands of one not an innocent third, party.
    3. Louisiana Digest — Estoppel—Par. 27, 13.
    Estoppel which can usually be pleaded against the repudiation of an unambiguous executed contract, cannot avail the pleader when he himself is shown to have tendered á title not descriptive of the property about which both the buyer and seller have negotiated.
    Appeal from Civil District Court for the Parish of Orleans, Div. “D”; Hon. Porter Parker, Judge.
    This is a suit for the rescission of sale of real estate.
    There was judgment for plaintiff and both defendants appealed.
    Judgment amended and affirmed.
    Rene A. Viosca, attorney for plaintiff and appellee.
    Wm. Winans Wall, attorney for, defendant and appellant.
   BELL, J.

Armstrong Donaldson, the principal defendant and appellant in this suit, has died since the appeal herein taken. His widow and heirs have been made parties defendant with Joseph F. Ebert, the other defendants and appellant.

This is an action for rescission of sale' of certain real estate; for the return of the cash portion of the purchase price, with certain damages; for.the return also of a certain mortgage and vendor’s lien note, representing the balance of the purchase price, and for an order restraining the holder of said note from transferring or disposing thereof. From a judgment in favor of plaintiff granting all of the relief prayed for and denying to one of the defendants his reconventional demand, both defendants have appealed.

This whole proceeding is based upon the dominant allegation that the property conveyed by deed, was, through error of fact, not that property which plaintiff actually intended to purchase. Defendants have pleaded by filing a joint answer, in which they, admit that the property described in plaintiff’s petition was sold for the price and terms stated. They deny all other allegations of the petition, except to further admit that Joseph F. Ebert negotiated the sale of the property, as Donaldson’s agent, and,that Ebert took the vendor’s lien note and paid cash therefor at the time of the execution of the sale. The real defense is that Donaldson’s acquisition óf the property conveyed was by deed, accompanied by actual physical and corporeal possession, and that the same property was in turn sold and delivered to plaintiff; that, therefore, there has been no breach of warranty on the part of Donaldson, or his co-defendant, even though the City of New Orleans might have disturbed or evicted plaintiff by paving, drainage or opening streets into or upon the property deeded by Donaldson to plaintiff. It is then averred in the answer by Joseph F. Ebert, assuming the position of plaintiff in reconvention, that he is the bona fide holder of the mortgage note for $300.00, and that he should have judgment against plaintiff for said amount, with interest and attorney’s fees.

On May 24, 1920, plaintiff and defendant, Donaldson, entered into a written agreement whereby the latter, through his authorized real estate agent, Ebert, agreed to sell to plaintiff property described as “No. 1921 St. Bernard Avenue, corner Johnson”, in the City of New Orleans, for the sum of $1,400, by act of sale before Felix J. Dreyfous, Notary Public. This document was signed by plaintiff and 'Donaldson. On June 8, 1920, before the above-named Notary, an act of sale intended by both parties to relate to 1921 St. Bernard Avenue, was executed and signed by both plaintiff and-Donaldson. The notarial description of this property, as set forth in the act containing the usual clauses of warranty, is as follows :

“A certain portion of ground, of irregular shape, together with all the buildings and improvements thereon and all the appurtenances thereunto belonging, situated in the Third District of this City, in that part thereof known as the Faubourg Gueno, and forming part of the lot of ground designated by the No. 2 of Square 128 (now Square No. 904), bounded by Johnson, Prieur, D’Abadie and Onzaga Streets, as per plan made by J. A. Penyo, dated January 3, 1840, and deposited in the office of Felix Percy, late Notary of this City. Said portion of ground measures in American measure 93' front on D’Abadie Street, 107' front on the continuation of Canal, St. Bernard, and 45' 6" in depth on the line separating it from lot No. 1, all measurements being more or less. The aforesaid lot No. 2 being part of a larger portion of ground designated by the No. 28 on a plan by L. Bringier, deposited in the office of Octave de Armas, late Notary, by an Act dated June 20, 1835. It is here noted for more clearness, that since the opening of St. Bernard Avenue, the above described property fronts on St. Bernard Avenue, and is bounded in the rear by London Avenue, D’Abadie Street being now closed to' that point.”

Donaldson had purchased the property above described about three weeks prior to the time he sold it to plaintiff, and admitted in his testimony at the trial of this case that before acquiring it, he had personally seen the property and was entirely familiar with the house or building known as 1921 St. Bernard Avenue, and with all of the fences which enclosed the property, and with the streets which definitely fixed its location; that when he bought from his vendor, as well as when he sold to plaintiff, he thought he was buying and selling every bit of ground and improvements within the fence lines surrounding the property No. 1921 St. Bernard Avenue, and which had, subsequent to Donaldson’s purchase, been placarded for sale by his agent, Ebert. This agent also testified that in acting for Donaldson he intended to sell to plaintiff the particular house as it was and the ground included in the fences as they stood, and that he knew there were four fence-lines surrounding the property. Donaldson is shown by the evidence to have also known that the property was enclosed within four-fence-lines, for he admits having visited; the property and having “stepped off” its-, entire surroundings, as the best method, in his opinion, of ascertaining the lineal! measurements of the property.

It is further shown by the testimony of plaintiff’s wife, who examined the property bearing filbert’s “For Sale” sign, as well as by the testimony of the plaintiff himself, who had called at Ebert’s office for the purpose of purchasing the property, that it was plainly understood in the negotiations with Ebert that the property offered for account' of Donaldson' was the identical property, as to house and grounds and fence boundaries, as that Which was visualized to all parties by the physical property and its surroundings.

The property was sold without any misrepresentations or any intent to defraud on the part of any of the parties involved in the transaction. Nevertheless, the facts disclosed by the record and by the surveys, deeds, etc., indicate that the property actually conveyed by deed was not that contemplated by either the buyer or the seller.

The triangular-shaped property described in the deed (though therein declared as of irregular shape) and appearing on the plan by Seghers, Deputy City Surveyor, shows a projection of a line into the avenue or street fronting the house, and it further appears that the rear or base line of this triangular property projects and cuts through the front'third-'of the house, so that':'the remaining-' two-thirds of the house projects into and' extends also to the middle -of D’Abadie Stieet. It cannot be conceived that the'-plaintiff, who, unlike Donaldson, was negotiating in regard to this property for the first time, could have contemplated such an absurd and impossible situation as has resulted from his purchase. It should, be noted that the error into which both Donaldson and the plaintiff had fallen regarding the’ property which they thought was being sold, did not come to the knowledge of either until the plaintiff discovered that the City of New Orleans had dug or installed a drainage pipe in the rear of the property .involved in the sale.- It is also true that such- knowledge arose after the act of sale between Donaldson and the plaintiff had been passed.

The .property designated, not only in the deed now before us, but in a deed to Donaldson from his vendor, and in another deed of so ancient an origin as April 20, 1852, is described as “a certain portion of ground of irregular shape (“une portion de terrain de forme irreguliere”). • The survey which plaintiff caused to be made after his discovering the. error of fact upon which this suit is predicated, distinctly shows that the property which he thought he was buying was of irregular shape, that is, neither rectangular nor triangular, but such shape as it could . only have taken if the house on which it was situated was to be enclosed 'within "the fence’ lines seen and visualized by .the parties.

It cannot , be doubted that Donaldson, having intended, as he says he did, to purchase from 'Ms vendor the same house and irregular portion of ground which, he agreed to sell to plaintiff, could have discovered by casual comparison of measurements found in his' vendor’s deed with thosq known by Donaldson when he “stepped-..off’’ the property, that his actual acquisition was very much less -in .area and quite different in shape from that which he intended to buy and which he -ultimately intended to convey. Whether negligence be charged or imputed to one or all of the litigants involved, it is clear, Donaldson should have known when acquiring the property conveyed in his deed, that he was not buying anything nearly approaching that which he had seen, examined and visualized. The initial error was, therefore, with Donaldson, and under the- well-established principle of equity, that he who is first at fault must bear the burden of the ultimate loss suffered by himself and others, it follows that the relief asked for by the plaintiff, with such amendments as are hereinafter decreed, should be granted.

In the instant case there is abundant justification for the legal presumption that the minds of the parties in this transaction have never met. The motive for making the contract, at least as to the plaintiff (the most innocent of the parties concerned) is wholly lacking, and hence, his consent — the most essential element in a contract of sale — cannot be held to have legally existed.

The estoppel which may be effectively and equitably pleaded against repudiation of an unambiguous, written contract, duly executed, cannot avail him who, pleading such defense, is shown to have tendered, however innocently, a defective title, not descriptive of the property which he himself intended to convey. One cannot be held at law or in equity to a bargain in which the very motive impelling the agreement is wholly wanting. This is specially true where, to enforce or uphold a contract of sale would impel the judicial presumption that the purchaser wilfully contracted to also involve himself into litigious difficulties, .the inevitable . consequences of which he was bound to have foreseen.

, It cannot be imagined- for an instant, that in the present case, where the purchaser •was a humble wagon driver of a large mercantile establishment, that he recklessly elected to purchase, with his small savings, a front yard'which he knew to be destined to public use- as a sidewalk or public avenue, or a back lot forming part of a rear street upon which two-thirds of his humble home was to have no other place to stand pending doubtful litigation with .arbitrary or merciless trespasser.

We find - ample authority justifying the conclusions of the learned trial judge, whose judgment we -approve with slight amendments. The Revised Civil Code, -Article 1824, is to the following effect:

“The reality of the cause is a kind- of precedent condition to the contract, without which the' consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid .consent.”

In Schmitze vs. Peterson, 113 La. 134, 36 South. 915. the Supreme Court,- affirming a judgment of the District and Appellate Court, ordered a rescission of the sale and a return of the purchase price where ii was shown that the agent of the vendor misled the purchaser by pointing out. to him other property; than that intended to be conveyed. The doctrine ennunciated in the syllabus of the cited case is applicable, in our opinion, to the facts of the present case, and reads as follows:

“The law will not maintain a contract, the cónsénttb which, of one of the parties is the result:of error as to the substance of the. contract, the error being caused by false representations of the other party or where the error, if not caused by him dire'ctly, has been participated in and made effective, by him. Ashley vs. Schmalinski, 46 La. Ann. 499, 15 South. 1; Civ Code, Arts. 1824, 1847, Par. 9.”

In Pontchartrain Railroad Co. vs. Durel, 6 La. 481 (O. S.), page 60, the Court held:

“Where the vendor -sells property at public auction without title to even a small part of it, the vendor, to whom the adjudication is .made, cannot be required to complete the sale and accept security.
“It is of no' avail that the vendor can give a good title to all but a very small portion of the property sold. The buyer must have what he bought and every part of it.”

In the very recent case of Jacobs vs. Freyhan et al., 156 La. 585, 100 So. Rep., page 728, the following ruling was made:

“Defendants take the position that the property which they obligated themselves to convey was described by reference to their title papers; that the frontage' on Dufossat Street called for thereby is there, and that it can make no difference that an actual survey showed the improvements t.o encroach upon adjoining property to the extent mentioned. However, it is not disputed that the agent of the seller took the prospective purchaser to the premises, pointed out the property as that bearing municipal numbers, including No. 1648 Dufossat Street, with the fences and improvements situated as they appeared upon the ground. Neither .can there be any doubt but that he thought he was buying all the property within those énclosures. In these circumstances, to require him to take the property in the condition which the survey showed it to be, would be to make for him a contract by judicial mandate which he clearly never intended' to enter into, and which, as .evidenced by this litigation and the efforts to straighten out the title so that he might' comply, he would not have made. There was, therefore, no meeting of the minds, or at least an error of fact as to a material part of the agreement which renders it ineffective as to plaintiff.”

We find in the present case that Ebert, the co-defendant and plaintiff in reconvention, having been at the time -he purchased the mortgage note, fully informed of th,e circumstances of this case, and having known exactly what .property plaintiff intended to buy, he cannot be decreed an innocent holder for value before maturity of -the note upon which he now bases his demand in reeonvention. The evidence shows that he was present, like the owner, at the passing of the act; that he, like the vendor for whom he acted, had visualized the whole property which his principal had really intended to convey, and that he posted for sale and described the property to .be just such property as the purchaser believed he was to get. Under these circumstances, the mortgage note cannot be upheld as security for the unpaid portion of that property, which was not intended to be .conveyed. The note and the mortgage, with interest and attorney’s fees as therein stipulated, therefore should be candled, with the act of sale from which it has arisen, but equity demands that plaintiff in the main action should' be condemned to pay unto Ebert, as plaintiff in reconvention, the face value of the note, to-wit: $300.00, with legal interest thereon from June 8, 1920, until paid.

On the other hand, we are of the opinion that plaintiff should recover against the widow and heirs of defendant, Donaldson, a judgment annuling the sale to the property as described in plaintiff’s petition, and that there should be judgment condemning these substituted parties jointly to the payment unto plaintiff of the total purchase price, to-wit, $1,400.00. 'Only legal interest on $300 of this amount should be allowed, because we aré of the opinion that Donaldson’s use of the $1,100 or cash, since the date of the sale, is practically off-set by the plaintiff’s. enjoyment and occupancy of the property for an equal period. We do not think that plaintiff should recover damages for attorney’s fees, nor otherwise, but he should be reimbursed for the actual costs advanced by him in the expenses incident to the passing of the act of sale, to-wit, $30.00. He should also be reimbursed for city taxes for the year 1921, which were paid by him, and which amount to $24.53.

The judgment appealed from should be affirmed, with amendments as herein noted.

It is, therefore, ordered that there now be judgment in favor of plaintiff, John L. Colas, jointly against Mrs. Mathilda Drewes, widow of Armstrong Donaldson, and ,Otto D. Donaldson, George C. Donaldson, Proveaux D. Donaldson, Ruth S. Donaldson, Esther Virginia Donaldson and Naomi Mathilda Donaldson, in the full sum of Fourteen Hundred and Fifty-four Dollars, 53-100 ($1,454.53), with legal interest on $300.00 thereof from June 8, 1920, until paid, and for all costs in both courts.

It is further ordered that there be judgment in favor of the plaintiff, John L. Colas, against the above-named defendants, cancelling the act of sale and mortgage between Armstrong Donaldson and John L. Colas, passed before Felix J. Dreyfous, Notary Public, on the 8th day of June, 1920, and which act is registered in the Conveyance Office Book 322,- Folio 489, and the Mortgage Office Book 1244, Folio 380, of the Parish of Orleans.

It is further ordered that there be judgment in favor of the plaintiff, John L. Colas, and against Joseph F. Ebert, restraining the said Ebert from disposing of the mortgage note now in his hands and relating to the act of sale and mortgage hereinabove noted, and that said note, with interest and attorney’s, fees, as therein stipulated, be declared null and void as a vendor’s lien or mortgage note bearing on the property described in the mortgage recorded in Mortgage Office Book 1244, Folio 380, of the Parish of Orleans.

It is further ordered that there be judgment in reconvention in favor of Joseph F. Ebert, and against the defendant in reconvention, John L. Colas, in the sum of Three Hundred Dollars ($300.00), with legal interest thereon from June 8, 1920, until paid.


author: WESTERFIELD, J.

text:
    No. 8777.
    Orleans Appeal.
    RUEKEL WHITE LEAD COMPANY, Appellant, v. J. T. KIRN.
    (January 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The reluctance of an Appellate Court to disturb the findings of fact by a Trial Court must yield to the necessity of reversing such findings when they appear to be clearly erroneous.
    Appeal from Civil District Court, Parish of Orleans, Div. “E,”, Hon. Wynne G. Rogers, Judge.
    This is a suit for the purchase price of kegs of White Lead.
    There was judgment for defendant ovi plaintiff appealed.
    Judgment reversed.
    Sol Weiss, J. B. Cocke, Weiner & Yarrut, attorneys for plaintiff and appellant.
    John J. Reilley, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for the purchase price ($169.00) of twenty 100-pound kegs of Reukel White Lead at $8.45 per keg. The defendant admits the purchase, but avers that the lead was of inferior quality and not as represented.

Prom a judgment against him, the plaintiff has appealed.

Three witnesses have testified in the case. The plaintiff, F. P.. Kasper of St. Louis, Mo., whose trade name is The Ruekel White Lead Company, the defendant, and one other witness in defendant’s behalf.

The' plaintiff, whose evidence was taken by Commission, testifies that he is and has been a manufacturer of white lead for a number of years, selling his product all over the United States without complaint from any source, that he uses the same formula in all cases and that he has sold to defendant in the past, lead of the same grade and quality as the shipment complained of and was paid for same without question.

The defendant, testifying in his own behalf, was very much confused. He gives two or three conflicting statements as to the time of his discovery of the defects in the lead, which his counsel imputes to the universal difficulty experienced in remembering dates, but which, since he makes no effort to give the day of the week or month, simply mentioning a number of months after certain events, such as the beginning of the erection of certain houses without even approximating each other, we think renders his testimony most unsatisfactory. Moreover, five months after the receipt of the lead ,he writes plaintiff promising to pay his bill and excuses his delay in settlement upon the ground of illness without any complaint of the quality of the lead. He also admits having bought white lead from plaintiff before which was “A-l very good”.

The other witness in the case was a painter employed by defendant. He testified that the paint in which the white lead bought from plaintiff had been mixed, peeled off the houses to which it had been applied six months after the application. He is unable to say why the paint peeled off, but supposes it was “on account of the lead wasn’t much kind of a lead”. He didn’t know where the houses were located which he had painted and couldn’t tell when he painted them, but “it must be around a year ago or so”, which would be a “year ago or so” after defendant testified he began to use the lead.

We are reluctant to disturb the trial court finding in this case, based as it is upon a pure question of fact, nevertheless, we find ourselves in complete disagreement with his judgment as to the weight of the evidence, which seems to us clearly in plaintiff’s, favor.

: For the reasons assigned, the judgment appealed from • is reversed and it is now ordered that there be judgment for plaintiff as .prayed for in his original petition, with costs of both courts.