text:
    No. 433
    First Circuit
    SEAL v. KNIGHT
    (April 13, 1929. Opinion and Decree.)
    Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellant.
    C. Ellis Ott, of Bogalusa, attorney for defendant, appellee.
   MOUTON, J.

The defendant, Oscar Knight, was the nominee of the Democratic Party for member of the School Board for the Fifth Ward, Parish of Washington, at an election held November 6, 1928.

Plaintiff claims, as alleged in his petition, that at that election he was elected to said office as an independent candidate. He alleges that the commissioners of election by an unlawful count of the votes cast at that election, made their returns, giving defendant 97 votes as against his 89, thus illegally tabulating a majority of 8 votes in favor of defendant. He alleges in Article XIV of his petition that the ballots cast “were stamped on the elephant, indicating a vote for the entire Republican ticket, and that the voters also crossed over into the Democratic column and stamped across at the name of Oscar Knight and spoiled the said ballots”; that the said spoiled ballots to the number of 56 were unlawfully counted for defendant. The gravamen of plaintiff’s complaint is grounded on the foregoing allegation under which he claims that these 56 votes, being illegal, should not be taken into account, thus reducing the legal votes in favor of defendant to 33 and giving plaintiff a majority of the votes cast, and entitling him to the office.

The defendant first interposed the plea of estoppel to the claim of plaintiff. This plea is based on the clause found in the primary election law of Acts 97 of 1922, and 215 of 1924, which was printed on the official ballot used at said election, pledging the voters who participated in the primary to abide by its results and to support its nominees in the ensuing general election.

It is ¡admitted in a statement of fact that plaintiff voted in two primary elections at which Knight, defendant, was nominated on the Democratic ticket for the position in contest, and that he used the official ballot prepared for that election; and, that he subsequently consented to become an independent candidate at the election against defendant, the Democratic nominee.

In the case reported in 123 La. 435, 61 So. 518, Lacombe and Laborde had been rival candidates on the Democratic ticket for police .juror, at a primary election. Lacombe was nominated and his name was placed on the official ballot. At the regular election, however, Laborde became a candidate in opposition to Lacombe and was returned elected. Lacombe contested his election, claiming that under section 27 of Act 49 of 1906, Laborde, the defeated candidate at the primary, was precluded from being a candidate against Lacombe who had been. nominated in a primary election in which Laborde, the contestee, had taken part. The Court, on rehearing, held that the provision inhibiting the defeated candidate at the primary from becoming a candidate at the regular election did not affect the voters who could not be deprived of their right to elect the' defeated primary candidate, at the ensuing regular election.

Counsel for defendant refers us on this point to the case of Payne vs. Gentry, 149 La. 707, 90 So. 104. In that case the question involved was in reference to the printing of" the name of a candidate on the official ballot in violation of law, thus making him an official candidate.

In differentiating that case from the Lacombe vs. Laborde suit, above referred to, the Court said it was not a case as was the Laborde case, . where the voters had, of their own motion, written the name of the "defeated candidáte on their tickets, which is the question involved here.

In the Lacombe case the voters were declared to have the right of electing at a regular election a rival candidate who had been defeated at the primary election notwithstanding the prohibition levelled against the candidate under the provisions of Act 49 of 1906.

In this case, for a like or a stronger reason, the electors could not be deprived of their constitutional right to vote for the election of plaintiff, the candidate of their choice, by voting for him as an independent candidate in opposition to defendant, though plaintiff had voted in the primary election in which defendant had been re-elected as the nominee of the Democratic Party.

The plea of estoppel was therefore properly overruled.

After urging the plea of estoppel, defendant filed an exception of no cause of action which was maintained, and the case was dismissed.

The official ballot which was used at the regular election is in the record.

On the Democratic ticket under the names of Alfred E. Smth andd Jos. T. Robinson, candidates for President and Vice-President, appear the names of the Presidential electors printed with a white square opposite their respective names; also, in like manner, the names of a candidate for Representative in Congress, for member of the State Board of Education and under that the name of Knight, defendant herein, for member of School Board, the contestee in these proceedings.

On the Republican ticket, under the elephant, political device of the Republican Party, we find the names of their candidates for President and Vice-President, and the names of the Presidential electors with the usual white square opposite thereto, but with no candidate for member of Congress or School Board.

In Article XIV of plaintiff’s petition the alleged cause of illegality of the votes cast for defendant, is, as we have before noticed, because the voters had stamped the elephant, Republican Party emblem, and had crossed over’ to the Democratic ticket and had voted for defendant, the party nominee of the Democratic Party for member of the School Board. Plaintiff in that article sets out that there had been 56 votes thus cast, and which he contends were spoiled ballots.

In Article XIX of his complaint he alleges that 64 of these spoiled ballots had been unlawfully counted for defendant and in another article, that defendant had received only 33 legal votes. These 33 legal votes, counted with 64, which are contested, would foot up a total of 97 votes which plaintiff alleges had been returned by the election commissioners in favor of defendant, who declared him elected to the office in contest. Though plaintiff in one part of his petition complains of 56 votes having been illegally cast because the voters had crossed over to the Democratic ticket to vote for defendant, and in another part, alleged that 64 votes were spoiled ballots, we take it, that the gravamen of the attack on the result of the election is directed to the crossing over of the voters to the Democratic ticket and stamping the square opposite the name of defendant.

We understand. that plaintiff relies on the ground set out in Article XIV of his ■petition for the relief sought, otherwise there would be no affirmative facts alleged as a basis for the complaint, which must be averred in an election contest to show wherein the votes were illegally cast. McNeely vs. Speight, 7 La. App. 719.

In support of his contention that the votes he mentioned were illegal, plaintiff refers us to Article VIII, Constitution of 1921, page 75, which gives the right to the voter to vote the entire or straight ticket of a particular political party, by merely stamping 'the device of that party at the head of its list of candidates as appears on the official ballot.

He also refers to that part of the article of the Constitution which says that when the voter does not desire to vote an entire or straight ticket, he may vote for candidates of any political party by stamping or marking the blank space opposite the name of each candidate on the official ballot.

He directs our attention also to Acts of the Legislature in which the foregoing provisions of the Constitution are embodied.

The Republican ticket, as we have before stated, had the names of its candidates for the Presidential electors, and of no other candidate for any other office. The voters, no doubt, had the right, at that election, to vote for these Presidential electors, either Democratic or Republican and also for the other candidates in the field or for an independent candidate if they so desired. It seems plain to us that these voters could have expressed their choice by stamping the white square opposite the names of these Republican Presidential electors and then could have gone over to the Democratic column and cast their . votes for Representative in Congress, member of the State Board of Education or for member1 of the School Board by stamping or making the usual mark in the white square opposite the names on the Democratic ticket of these various local candidates.

If these voters had pursued that course we do not think contestant would have claimed that these votes had been unlawfully cast. Instead of so casting their votes these 56 or 64 voters, as alleged by plaintiff, stamped the elephant and then crossed over and expressed their choice for defendant, candidate for the School Board, by stamping the white square opposite his name.

The contention of the plaintiff is that when you stamp the emblem of a particular political party you vote the straight ticket, and, that the stamping of the emblem, means, under the provisions of our election laws, as expressed in counsel’s brief: “You confine yourself to that party and its candidates.”

The right of suffrage, as we understand the law, invests each voter with the privilege of voting for every candidate in the field at that election, Presidential electors and local candidates. No doubt that the 64 voters by voting for the Republican electors by stamping the elephant, the Republican device, confined their choice to the candidate of that party for Presidential electors, but to no other candidate as there were no others on that ticket. If there had been a candidate for member of the School Board on that ticket, obviously the voter's would have been equally bound in favor of that candidate by stamping the Republican emblem.

In such a case the voter is bound all along the line, which the Constitution and statutes enacted thereunder, we think, have in view, where it is stated that the voter may vote an' entire or straight ticket of a political party by merely stamping the device of that party at the head of its list of candidates as appears on the official ballot. When he has so voted he has exhausted his constitutional right of suffrage, as we understand the law, and cannot vote for any other candidate, either independent or regularly nominated.

The 64 voters in this case by stamping the elephant voted only for the Presidential electors, had not therefore exercised their full right of suffrage, and had the right to vote also for the defendant, the candidate of the Democratic Party by stamping the white square opposite his name on the official ballot.

Counsel for plaintiff refers to several authorities which say that the voter must comply with the provisions of our election statutes which cannot be modified, enlarged or liberally construed. This is the general rule which has received practical application in many contested election cases. We do not find, however, in the instant case that the 64 voters in casting their vote for defendant in the manner alleged and as hereinabove stated, have impliedly or expressly violated any provision of our election laws or the constitutional provision relied upon by counsel for plaintiff.

In the case of Payne vs Gentry, above cited, where the name of a candidate had been placed on the official ballot in violation of law, the Court took occasion to remark that our form of government is democratic, and that the will of the majority or plurality must be respected. There is no suggestion in plaintiff’s petition indicating that the .64 voters had not clearly and honestly expressed their choice in favor of defendant for member of the School Board by stamping the white square opposite his name on the Democratic ticket. Their votes with the other 33 which plaintiff admits in his allegations were lawfully cast for defendant, gave a free and unhampered expression of the will of the majority of the electors that participated in the election for the office in contest, and in favor of defendant. We find, .that the will of the majority was, as far as disclosed by the record, lawfully expressed, and that plaintiff had no cause of action as decreed below.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. 426
    First Circuit
    KLEINPETER v. CONNELL
    (April 13, 1929. Opinion and Decree.)

      Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff owns a tract of land situated in the parish of East Baton Rouge, on which was standing a quantity of hardwood timber. Through the land there runs a small stream known as Ward’s Creek. C. S. Witty, who made a business of buying, cutting, and hauling timber, entered into an agreement with plaintiff, whereby he was to sell and deliver to the Standard Box Company the hardwood situated on plaintiff’s land, plaintiff to receive a stumpage price of $4 for the timber situated north of Ward’s Creek and $5 for that situated south of the same creek.

Plaintiff had no confidence in Witty’s promises or financial responsibility, and, before closing any deal for his timber, he warned Witty that he would let him cut and haul his timber to the Standard Box Company solely on the condition that the Standard Box Company would retain in its hands and pay directly to him (the plaintiff) the stumpage price of the timber delivered by Witty under the agreement. Witty having consented to this arrangement, the Standard Box Company was accordingly notified, and also agreed to this condition.

Witty then proceeded to cut and haul the timber situated north of Ward’s creek, the Standard Box Company retained in its hands the stumpage due to plaintiff and paid same directly to plaintiff, and the agreement was fully carried out to the letter, when the Standard Box Company, having, for the time being, a sufficient quantity of timber on hand, temporarily stopped Witty in his deliveries.

About one month later, Witty was again requested by the Standard Box Company to resume deliveries of timber. Plaintiff, however, before permitting Witty to begin cutting and hauling the timber situated on his land, south of Ward’s Creek, notified the Standard Box Company in order that it might continue to retain for his account the stumpage price which from that time was, according to previous agreement, to be at the rate of five dollars.

Notice of the resumption of the agreement was sent by plaintiff to defendant, through John McGregor, a deputy sheriff, whose veracity is unquestioned. McGregor testified that he had told Mr. Wax, manager of the defendant, that Mr. Kleinpeter had asked him to notify Mr. Wax that Mr. Witty was hauling five dollar timber, and to hold out the five dollars for him, and he further testified that Mr. Wax said: “All right, I will do it.” Wax, through forgetfulness, or for some other unaccounted reason, failed to carry out his promise. Plaintiff in due time made demand on defendant for the price of his stumpage, was refused payment, and brought the present suit.

The district judge found in favor of plaintiff, and defendant has appealed.

The facts in the case have been set forth in substance as we read them in the record, and they seem fully to confirm the correctness of the judgment under revision. Part of the agreement had been carried out without any friction or trouble, and plaintiff was justified in the belief and conclusion that the whole contract, in the absence of any complaint by defendant, would be carried out in the same manner.

On the trial of the case, defendant objected to the admission of parol testimony to show that it had agreed to retain in its hands, and. to pay directly to plaintiff, the stumpage price of the timber, on the ground that it was an attempt by plaintiff to prove by parol, in contravention of the statute, a promise to pay the debt of a third person. The objection was properly overruled. When defendant agreed to retain the price of the stumpage for account of plaintiff, Witty owed nothing to plaintiff, and the promise was an original agreement and contract. The promise was not one to pay a pre-existing debt of a third person nor was it a parol agreement of suretyship, not provable by parol under C. C. art. 2278. Watson Bros. vs. Jones, 125 La. 249, 51 So. 187.

The judgment of the district court is . affirmed.


author: ELLIOTT, J.

text:
    No. 428
    First Circuit
    REAMES v. FRANKLIN
    (April 13, 1929. Opinion and Decree.)
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Ratcliff and Herget, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

This is a petitory action in which Beverly W. Reames, with title from Marshall Franklin, dated October 9, 1928, and recorded the next day, sues to recover of Emma Wallace Franklin, wife of his vendor, “a certain tract of land with the buildings and improvements thereon, situated in the fifth ward of the parish of East Baton Rouge, Louisiana, near Big Sandy Creek, about 25 miles from the City of Baton Rouge, composed of 2 tracts; one of 40 acres and another of 33 acres, bounded north by Mrs. Reames, formerly Au-coin; east by Jones & Stevenson; south by W. L. Jones; west by Browning.’’

He alleges that the defendant is in possession of' the property without title to or right to remain thereon.

The averments of the plaintiff are denied by the defendant, and title in herself alleged to an undivided one-half of the tract of land in question, under a dation en paiement from her husband, said Marshall Franklin, dated August 29, 1927, and recorded September 7, 1927, in the conveyance records of the parish of East Baton Rouge. The parties both claim title under Marshall Franklin.

The plaintiff does not attack defendant’s title; his allegation is that she has no title. It results from plaintiff’s petition that unless the giving in payment set up by the defendant as a title is an absolute nullity on its face, plaintiff cannot recover under the Code of Practice, art. 44.

Defendant’s title is an act under private signature, and, on the subject of consideration, reads as follows:

“This present sale and conveyance is made and acquired for and in consideration of the sum and price of $400.00 cash in hand, the receipt of which is hereby acknowledged as follows; By cash loaned to Marshall Franklin by Emma Wallace, to take up the last two mortgage notes due on the said place, and interest and other cash loaned at different times; also service rendered by two boys and one girl, who were in the care and custody of Emma Wallace; also by rendering good and faithful service by Emma Wallace to Marcial Franklin, until death shall them part. The said amount being the paraphernal funds of Emma Wallace, acquired before her marriage.”

The act does not state and the answer does not allege the amount loaned for the purpose of paying the mortgage notes due on the place, the amount loaned at other times, nor any fixed and definite sum agreed on as the value of the service rendered by the boys and girl; nor as to the service to be rendered by Emma Wallace to the said Franklin. There can be no sale from husband to wife, except as provided by law. Civil Code, art. 2446. In this case, as the parties had not been judicially separated, the only purpose could be to replace paraphernal property alienated by her husband.

The title from Marshall Franklin to Emma Wallace is a nullity on its face for the reason that it does not purport to be for a purpose provided for by law, except as to the two mortgage notes mentioned in the act. The plaintiff, however, offered evidence on the subject of consideration; the defendant objected, but, as the only possible effect of the offering could be to benefit the defendant by showing certainty in the consideration which under the act is uncertain, and thereby save the situation for the defendant, we take the evidence into account. The law on the subject of giving in payment (Civil Code, art. 2659) requires the same certainty in the matter of consideration as the law requires for other sales. Civil Code, art. 2464. The plaintiff offered the notes mentioned in the giving in payment, and he states in his brief the amount which he claims was due thereon. But the notes were not brought up in the record, and we have no information as to the amount loaned by defendant to her husband to pay same except the statements in plaintiff’s brief, which are no doubt true; still we cannot look on same as record proof. If we would not act finally on the case because of the absence of the notes, we could have them brought up, and would do it if any good would be thereby accomplished. But it is evident that either with or- without them in the record the giving in payment relied on by defendant is still null and void on its face, and also, under the evidence introduced on the trial. The evidence introduced on the trial does not remove any of the uncertainties nor show any agreed value or fixed price as to the other items of consideration named, in the act. As for the amount due on the place, the same could be well imputed to a proper legal purpose, but as for tne other items of consideration, they could not, even if proved, be looked on- as ground for a paraphernal claim in favor of the defendant and due by her husband, and the act under which defendant claims is still null and void. In regard to the certainty required for the consideration of a dation en paiement, see 2 Louisiana Digest, subject “Dation en paiement,” Sec. 5, p. 831. And as to what may be regarded as a paraphernal claim which may be replaced, see subject of “Marriage” in volume 4, same work.

It is no use to keep the case open. We are satisfied that the judgment appealed from is correct. Judgment affirmed.

Defendant and appellant to pay the cost in both courts.


author: REYNOLDS, J.

text:
    No. 2502
    Second Circuit
    BANK OF COUSHATTA v. WILLIAMS TERRELL & CHANDLER v. WILLIAMS
    (April 5, 1929. Opinion and Decree.)
    Nettles & Bethard, of Coushatta, attorneys for plaintiffs, appellants.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff, Bank of Coushatta, on September 12, 1924, commenced this action against defendant, R. L. Williams, to recover judgment on a promissory note for $1,000 signed by him, dated October 23, 1922, payable to the order of Terrell & Chandler on October 15, 1923, bearing interest at the rate of eight per cent from its maturity until paid, and stipulating payment of ten per cent attorney’s fees, and by the payee indorsed in blank.

And on October 17, 1923, plaintiff, Terrell & Chandler, a partnership composed of G. A. Terrall and H. C. Chandler, commenced this action against defendant, R. L. Williams, to recover judgment on a promissory note for $1,000 signed by him, dated October 15, 1922, payable to the order of Terrell & Chandler on October 15, 1923, bearing interest at the rate of eight per cent per annum from its maturity until paid, and stipulating payment of ten per cent attorney’s fees.

Defendant interposed the defense of failure of consideration to both suits, and, in addition, alleged that the Bank of Coushatta was not a holder in due course.

By agreement of all parties, the cases were consolidated. And one judgment, rejecting the demands of both plaintiffs and dismissing both suits, was rendered.

Both plaintiffs appealed and joined in one appeal bond. Wé also shall dispose of both cases in one opinion and judgment.

OPINION.

By written contract, dated October 30, 1922, T. A. Wilkinson leased to Terrell & Chandler a certain farm for the years 1923, 1924, and 1925; the price being $1,500, represented by three promissory notes signed by the lessee, each for $500, all bearing the same dates as the contract, payable, respectively, October 15, 1923, October 15, 1924, and October 15, 1925, and all bearing interest at the rate of eight per cent per annum from maturity until paid and stipulating payment of ten per cent attorney’s fees.

This lease was filed for record at 4 o’clock p. m. on November 8, 1922, and recorded on July 15, 1925.

And by written contract, dated November 8, 1922, Terrell & Chandler leased the same farm to R. L. Williams for the same years; the price being $3,000, represented by three promissory notes of the lessee for $1,000 each, all bearing date October 23, 1922, and payable, respectively, October 15, 1923, October 15, 1924, and October 15, 1925, and all bearing interest at the rate of eight per cent per annum from maturity until paid, and stipulating payment of ten per cent attorney’s fees.

This lease apparently was never filed for record.

On November 3, 1922, Crawford, Jenkins & Booth, Limited, instituted suit against T. A. Wilkinson in the district court of Red River parish, in which parish the land lay, to obtain judgment against him for $2,358.73, and interest, and, in aid thereof, upon making affidavit and giving bond according to law, procured the issuance of writs of attachment against the property of T. A. Wilkinson, and, on November 4, 1922, the sheriff, acting under the writs of attachment, seized and took into his possession the leased premises; and such proceedings were had in that action that, on January 13, 1923, judgment was rendered in favor of Crawford, Jenkins & Booth, Limited, and against T. A. Wilkinson for the debt sued for and sustaining the writs of attachment, and decreeing Crawford, Jenkins & Booth, Limited, to have a privilege on the seized property dating from the levy of the writs, for the satisfaction of the judgment, and ordering the property sold for that purpose.

Notice of the pendency of file action, pursuant to Act No. 22 of 1904, had been filed on November 3, 1922.

A writ of fieri facias was issued on the judgment and the property advertised for sale and sold on March 10, 1923, to Crawford, Jenkins & Booth, Limited, and on the same day a deed from the sheriff to them conveying the property sold was executed, and on March 31, 1923, it was filed for record.

The record is voluminous, but the only question presented for our determination is whether defendant, the lessee, can attack the title of Terrell & Chandler, plaintiff, to avoid payment of the rent?

Appellants say, in brief:

“Since the record shows that Mr. Williams, the defendant, went into possession of the ‘Wilkinson’ ¡place as the lessee of Chandler & Terrell, the plaintiff, and remained in the actual possession of the premises during the years 1923 and 1924 —the years for which rent is claimed—and as the answer and defence of the defendant is solely based upon the fact that defendant concludes that Crawford, Jenkins & Booth, Limited, a Shreveport corporation that is not a party to the suit, is the owner of the premises, and, by virtue of such ownership, entitled to the rents and revenues derived therefrom, the only question at issue, therefore is:
“Can defendant, the lessee, attack the title of Terrell & Chandler, plaintiff, to avoid the payment of rent?”

And they cite many authorities in support of the proposition that a tenant is estopped to deny his landlord’s title.

The authorities cited have no application to the facts of this case.

As we appreciate the issue presented by the pleadings and evidence, defendant denies that Terrell & Chandler put him in possession of the leased premises, and contends that, if they did so, then they failed to maintain him in possession, and that, by reason of the proceedings had in the suit of Crawford, Jenkins & Booth, Limited, against T. A. Wilkinson, both his own tenancy and right of occupancy and the tenancy and right of occupancy of Terrell & Chandler were terminated, and both the title to and right of occupancy of the premises passed, to Crawford, Jenkins & Booth, Limited, and that, in order to avoid election by Crawford, Jenkins & Booth, Limited, he was compelled to attorn, and did attorn, to them. 1

The suit of Crawford, Jenkins & Booth, Limited, against T. A. Wilkinson, was instituted on November 3, 1922, and the premises seized under the writs of attachment in that action on November 4, 1922.

At that time neither the lease from T. A. Wilkinson to Terrell & Chandler nor the lease from the latter to R. L. Williams was jliled for record. Therefore both contracts were null and void quoad Crawford, Jenkins & Booth, Limited.

“All sales, contracts and' judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
“The recording shall have effect from the time when the act is deposited in the proper office, and endorsed by the proper officer.” Civil Code, art. 2286.
“It shall be the duty of the recorder to endorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders.” Civil Code, art. 2254. Schneidau vs. New Orleans Land Co., 132 La. 264, 61 So. 225.

. With regard to putting Williams in possession of the premises under the lease, Chandler testified:

“Q. Mr. Chandler, you say that you put Mr. Williams in possession of this property. Did you personally put him on that place?
“A. Mr. Terrell and I together did, yes, sir.
“Q. What did you have to do with it?
“A. What did we have to do with it?
“Q. Yes?
“A. Well, signing the contracts, and all that.
"Q. Now let’s get back to putting Mr. Williams in possession. How did you put Mr. Williams in possession?
“A. Well, by signing the lease and the' notes, or, in other words, like we were doing business down there and I just say: ‘Well, we have leased from T. A. Wilkinson and we will sublease to you; go ahead and move on it.’
“Q. That is it! You just authorized him to move on it?
“A. Certainly.”
* % *

Inasmuch as the land was at this time in custodia legis under the writs of attachment, manifestly it was impossible for Terrell & Chandler legally to put Williams in possession or Williams legally to take possession of it.

Williams, however, ignorant of the seizure, did attempt to take possession, and was stopped by Crawford, Jenkins & Booth, Limited.

He testified:

“Q. Well, Mr. Williams, did you go and move on this place before Crawford, Jenkins & Booth, Limited, seized it?
“A. No, sir; I was moving.
“Q. You had not gotton into possession of the property ahead of the seizure?
“A. Well, I had some of my stuff over there. I was moving my corn; I had some of my stuff there.
“Q. All right. Did they require you to enter into a lease contract with them before they consented for you to complete moving on the place?
“A. They did.
“Q. Did you then enter into a lease contract with them?
“A. I did.
“Q. Have you paid them rent for 1923? •
“A. Why, I suppose they got it.
“Q. Yes—and the same for 1924?
“A. Yes, sir.
“Q. Now, did you report to Terrell & Chandler the fact that Crawford, Jenkins & Booth, Limited, liad required of you to make some arrangement before you could use the place?
“A. I did, to Mr. Terrell.
“Q. Did he do anything about it?
“A. Not a thing; he never did tell me what he was going to do about it. I asked Mr. Chandler once or twice what about it, and he said he didn’t know, and that was the last about it.
“The lessor is bound from the very nature of the contract, and without any clause to that effect:
“1. To deliver the thing leased to the lessee. * * *
“3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.” Civil Code, art. 2692.
“If the lessee be evicted, the lessor is answerable for- the damage and loss which he sustained by the interruption of the lease.” Civil Code, art. 2696.

Williams’ lessors having failed to put him in possession of the leased premises and to maintain him in peaceable possession thereof after he demanded that his lessor do so, it was both his right and duty to minimize his damages resulting from their breach of contract by leasing the property from Crawford, Jenkins & Booth, Limited.

“Where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it, it is his duty to do it. * * *” Armistead vs. ¡Shreveport, etc., R. Co., 108 La. 171, 32 So. 456.

That the seizure and sale of the leased premises canceled the lease and terminated the relation of landlord and tenant between the lessor and lessee is well settled in the jurisprudence of Louisiana.

In Wood vs. Sala y Fabrigas, 105 La. 1, 29 So. 367, the Supreme Court held a lessee, oil being sued for the rent, had the right to show eviction from part of the leased premises and demand a proportionate reduction of the rent.

And therefore, where a lessee is evicted from the whole of the leased premises, he is entitled to be released from payment of any part of the rent.

The syllabus of Summers vs. Clark, 30 La. Ann. 436, reads as follows:

“A judgment creditor who seizes under execution leased property belonging to his debtor, and held by the lessee under a lease not recorded, becomes entitled to, and may exact from the lessee all the rents thereafter accruing from said property; and the fact that the lessee has executed and delivered to the debtor his negotiable promissory notes covering the rent to become due for the whole of the unexpired term of the lease, will not exonerate him from liability to the seizing creditor, for the rents accruing subsequent to the seizure. * * * A seizure 'under fi. fa. of property bearing rents includes a seizure of the rents.”

Under this authority it is clear that upon the seizure it was not only Williams’ right but his duty to attorn to Crawford, Jenkins & Booth, Limited.

In Lesseigne vs. Cedar Grove Realty Co., 150 La. 641, 91 So. 136, the Supreme Court held that the purchaser of immovable property in a conventional sale is entitled to the rents accruing on the property from the date of purchase and to any rent note that may have been given to represent such rents.

In Anderson vs. Comeau, 33 La. Ann. 1119, it was held that:

“The seizure of immovable property vests in the sheriff the right to receive the fruits or rents from the date of seizure, for the benefit of the seizing creditor.
“An unrecorded act of lease of real estate produces no legal effect as to third persons.
“The lessee of immovable property, under an unrecorded lease, is liable to the seizing creditor for rent accruing after seizure, though he has paid it to the lessor by anticipation, or furnished negotiable notes for it. * * *
‘■'The lessee of immovable property, under an unrecorded lease, in case of seizure, has the right to claim the dissolution of the lease; but, if he remains in possession, a tacit reconduction results from it in favor of the seizing creditor.” (

In that case the court further said:

“That, in such case, the effect of the seizure, as between the lessor and the lessee, by reason of the disturbance of the enjoyment of the thing leased by the latter, is to dissolve the lease, and to give him the right to abandon the property, and to claim from the lessor the restitution of the rents which may have been paid in advance.”

The seizure and sale of the leased premises dissolved the lease and terminated the relation of lessor and lessee between the parties, and left defendant free to attorn to the new owner of the premises.

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


author: WEBB, J.

text:
    No. 2499
    Second Circuit
    CHANDLER v. BURKHALTER NATHAN RATCLIFF, INTERVENER
    (April 5, 1929. Opinion and Decree.)
    (May 8, 1929. Rehearing Refused.)

      Hugh C. Fisher, of Shreveport, and Emmet Alpha, of New Orleans, attorneys for plaintiff, appellee.
    Edward Barnett, of Shreveport, attorney for intervener, appellant.
   WEBB, J.

Plaintiff, W. C. Chandler, by authentic act, sold and transferred to defendant, H. G. Burkhalter, certain real estate, for an expressed cash consideration, receipt of which was acknowledged in the act of sale, and in the present suit to annul the sale on the ground that the price had not been paid, defendant failing to appear, a default was entered against him, but in the meantime Nathan Ratcliff filed an intervention in which he alleged that he had attached the property under a claim held by him against Burkhalter, and that by virute of the attachment he had obtained a privilege on the property, and he opposed the action of the plaintiff to annul the sale, praying that' plaintiff’s demands be rejected.

Plaintiff excepted that the petition of the intervener failed to state a cause of action, which was sustained and judgment rendered dismissing the intervention; and following, the default previously entered against the defendant was confirmed and judgment rendered in favor of the plaintiff and against defendant annulling the. sale, and the intervener appeals from the ruling sustaining the exception of no cause of action and the judgment rendered, thereon dismissing the intervention and also from the judgment annulling the sale.

While not expressly so stated, the basis of the intervention appears to be that the intervener had a privilege on the property resulting from the attachment, and thus that, he had the right to oppose the action of the plaintiff to annul the sale, and to interpose any defenses which could have been interposed by the defendant, as in his intervention he alleges that plaintiff’s petition fails to state a cause of action in that the allegations contained in the petition were insufficient to admit parol proof of non-payment of the price, in view of the acknowledgment of the receipt of the price in the authentic act of sale, and the same basis is given for the right to appeal from the judgment annulling the sale, where it is 'urged that the judgment should be reversed on the ground that plaintiff’s allegations were insufficient to admit proof, and that the evidence introduced should not have been considered.

Considering the exception to the intervention and the ruling and judgment thereon dismissing the intervention; it is conceded that, as a general rule, an intervener asserting a privilege on property cannot substitute himself for, or interpose any defenses personal to the defendant, and that he must pray for relief in accordance with the right asserted or for recognition of his asserted privilege (Clapp vs. Phelps, 19 La. Ann. 462, 92 Am. Dec. 545; Mayer vs. Stahr, 35 La. Ann. 59; Lincoln vs. N. O. Express Co., 45 La. Ann. 729, 12 So. 937; Gilkeson Sloss Comm’n Co. vs. Bond & Williams et al., 44 La. Ann. 841, 11 So. 220; Fleming vs. Shields, 21 La. Ann. 118, 99 Am. Dec. 719; Lee vs. Bradlee, 8 Mart. (O. S.) 55); and considering that the intervener claimed only a privilege on the property, he did not have the right to substitute himself for the defendant or to oppose the suit of plaintiff on grounds personal to defendant, and having failed to pray for recognition of his alleged privilege, the exception of no cause of action was properly sustained, and the judgment rendered thereon dismissing the intervention is affirmed.

Relative to the appeal from the judgment annulling the sale, we do not understand that counsel contends that appellant is in a more favorable position than defendant would have been had he appealed, nor is it contended that the judgment annulling the sale exceeded the relief specifically demanded; and although it is apparently urged that under the provisions of article 2237 of the Civil Code, which declares that:

“The acknowledgment of payment, made in an authentic act, cannot be contested, under pretense of the exception of non numerata pecunia, which is hereby abolished.”

the court was prohibited from considering other proof of the non-payment of the price than written evidence or its equivalent, yet it is conceded and well recognized that parol evidence is admissible to show that the price, acknowledged to have been received in the act, was not in fact paid, where it is alleged that the acknowledgment of the receipt of the price was made in error, and in the last analysis the sole contention is that parol evidence is not admissible under the pleadings. •

Thus it is apparent that had the defendant answered and been present at the trial and elected to permit the introduction of parol evidence, the court would have been bound to consider it, and if it was established that the price was not in fact paid, to have rendered judgment accordingly; but it is contended that as the defendant did not answer and was not present at the trial, the pleadings must be closely analyzed and strictly construed against the plaintiff, and that if it does not clearly appear that parol evidence was admissible under the pleadings, the judgment should be reversed.

However, we are of the opinion that where the question of the insufficiency of the pleadings is raised for the first time on appeal, the allegations should be liberally construed, and it being conceded that plaintiff did allege that it was understood that the price would • be paid in cash but that defendant had given checks in payment of the price, with the assurance that funds would be available to pay the checks when presented, and that defendant had failed to provide funds to pay the checks, and that plaintiff had been unable to obtain payment of the checks either from the bank or by defendant, was sufficient to permit the introduction of parol evidence.

It must be conceded that one who gives a check in payment of the price of an object, where it was understood that the price was to be paid in cash at the time of delivery, impliedly, at least, represents that the check is drawn against funds on deposit, and where assurance is given that the check is against funds on deposit, when the drawer knew that he had not any such funds, there is a misrepresentation, without which it must reasonably be inferred that the object would not have been delivered, and while in the present instance the plaintiff’s allegations are indefinite, in that it is not specifically alleged that defendant was guilty of fraud in giving the checks and thereby inducing plaintiff to acknowledge receipt of the price, it does not appear that defendant could have been unaware that plaintiff would offer to introduce evidence showing the circumstances under which he had obtained delivery of the property and acknowledgment of receipt of the price, from which fraud would be inferred, and that defendant could not, with such knowledge, wait until judgment had been rendered on default and on appeal urge that the allegations were too indefinite to admit of proof of the circumstances attending the acknowledgment.

The judgment annulling the sale is therefore affirmed.


text:
    No. 2587
    Second Circuit
    GREEN ET AL. v. INTERNATIONAL ORDER OF TWELVE, KNIGHTS AND DAUGHTERS OF TABOR
    (April 5, 1929. Opinion and Decree.)
    (May 8, 1929. Rehearing Refused.)

      Murff and Perkins, of Shreveport, attorneys for plaintiffs, appellees.
    Charles M. Roberson, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit by Emmet Green, Isaac Green, Ernest Green and Ollie Green- as the only children and sole heirs of Isaac Green and his wife Gracie Green, both deceased, against the International Order of Twelve of Knights and Daughters of Tabor, a mutual benefit society, to recover judgment for the sum of $375.00, or $93.75 for each of them, upon a benefit certificate issued by defendant to Isaac Green under date of September 15, 1915, whereby defendant promised to pay $75.00 to each of the plaintiffs upon the death of Isaac Green, provided he was and had been for a period of four consecutive months immediately preceding his death and at the date of his death in good standing.

The defense was that the deceased was not in good standing as a member of the defendant association at the time of his death.

On these issues the case was tried and there was judgment in favor of the plaintiffs and against the defendant in the sum of $300.00 with legal interest thereon from judicial demand and defendant appealed.

OPINION.

The burden of proving that the deceased was not in good standing as a member of the society at the time of his death and for four months immediately preceding that event was on the defendant and defendant failed to establish the fact.

It was judicially admitted that the dues of the deceased to the defendant had been paid up to the last day of the month of May, 1924, and that the deceased was in good standing and the certificate in full force on that date. Isaac Green died July 17, 1924. Failure to pay dues after the month of May did not automatically put him in bad standing as a member of the society. The certificate provides, amongst other things, that:

“It is further specially stipulated, provided and agreed that any member who is suspended, shall, after said period of suspension continuously for two consecutive months, ipso facto forfeit and surrender any and all rights and claims hereunder.”

This provision contemplates some affirmative action on the part of the association amounting to suspension until when the two months do not begin to run; and until the two months have run the certificate continues in force.

John Sumlin, the chief scribe of the association, was asked:

“Q. Did you notify Isaac Green at any time as to his financial standing in the lodge?”

And he answered:

“A. I did on the first Sunday in July —the month that he died. He was at Church.”

And he said:

“When I notified him, I said: ‘Isaac, you should straighten that out and if you haven’t got the money you ought to borrow it and pay up, because you will be unfinancial before the next lodge meeting.”

This .testimony indicates that the chief scribe, so far as his own authority as an officer of the association extended, did not then consider the insured to be suspended.

It is laid down in Ruling Case Law, volume 14, page 976, that where the policy or by-laws of an association such as defendant is, expressly or impliedly require some affirmative action on the part of the insurer before a forfeiture can be declared that mere non-payment of dues does not work a forfeiture of membership. As stated, no such affirmative action was taken by the insurer in respect of the certificate sued on and consequently it was in full force and effect at the time of the insured’s death.

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


text:
    No. 2608
    Second Circuit
    BLUESTEIN v. HARVEY
    (April 5, 1929. Opinion and Decree.)
    (May 8, 1929. Rehearing Refused.)
    George Thurber, of Shreveport, attorney for plaintiff, appellee.
    Robertson & Gibbs, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sued defendant for $135, alleged balance of rent, and, Under appropriate allegations, obtained the issuance of a writ of provision seizure.

Defendant denied that he owed plaintiff the sum claimed, and alleged that he owed him only $30 and that he had tendered this amount and plaintiff had refused to accept it; and he reconvened for the sum of $150, damages alleged to have been sustained by the provisional seizure.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendant for the amount sued for and sustaining the writ of provisional seizure, and the defendant appealed.

OPINION.

Plaintiff rented to defendant a dwelling house in the city of Shreveport for $30 a month, and defendanf occupied it during the months of January, February, March, April, May, June, July August, and September, 1925. Plaintiff credited defendant with payments on account of rent as follows: February 16, 1925, $30; March 24, 1925, $30; May 4, 1925, $15; June 3, 1925, $15; July 7, 1925, $20; July 28, 1925, $10; and August, 1925, $15.

And plaintiff testified that these were the only payments defendant had made on account of rent.

Defendant testified:

“Q. For what month, if any, do you owe Mr. Bluestein for rent?
“A. I don’t owe him rent for anything.
“Q. What about September?
“A. Possibly I could owe in September, because when he came there the first of September I had used my cheek, that is where the thirty dollar check comes in, and he taken a cheek for part of it, half of the money, on the seventh, and that fell on a holiday, and Tuesday or Wednesday I went and paid the fifteen dollars on the check and told them that I would give them the rest in a day or two, and Mr. Bickley was out of town and I didn’t want to take the money out of the drawer, and Mr. Bluestein came there and raised ‘Cain,’ and I told him to come back that evening and get the money and he wouldn’t do it.
“Q. Was it the September rent that it was for?
“A. Yes, sir.
“Q. On what day did you pay the rent?
“A. On the 17th, the latter part of August, fifteen dollars.
“Q. Was the payment that you just referred to, for the rent for the last half of August?
‘‘A. Yes, sir.”

Defendant filed in evidence receipts for rent for the amounts and dated as follows, to-wit:

5/5/25 __________________________________________$15.00

3/17/25 ________________________________________$30.00

2/4/25 .......... $30.00

And also an unpaid check for $30 dated 9/7/25.

Defendant contends that, in addition to the credits allowed by plaintiff, he is entitled to credit for the first three named amounts.

Plaintiff credited defendant with these three payments under the dates of February 16, 1925, March 24, 1925, and May 4, 1925.

As to these credits, plaintiff testified:

“Q. Now you have filed in this case a statement showing these payments, and sworn to the correctness of the statement, would you mind telling us this last item shows August 15th, what date it was paid?
“A. I don’t know; some of those dates may vary a little, but it is in that month that I received that money.
“Q. Did you give Mr. Harvey a receipt for that $15.00?
‘‘A. I don’t know;. I always give receipts.
“Q. You always give receipts?
“A. Well, except where a man gives me a check, I didn’t always then, most of the time, I give them, give me one and it was returned, thirty dollars, with no funds in the bank.
“Q. Mr. Bluestein, there is a receipt here that counsel has asked you about, dated May 5, 1925, for $15.00, and there is on your statement, you have in there a credit for $15.00, of May 4th; did you get payments on both those dates? Did you receive $15.00 on May 4th and also $15.00 on May 5th?
“A. No, sir.
“Q. Did you receive the $15.00?
“A. Yes, sir, I received $15.00 as I say on my books, on the 4th or 5th; may have dated it wrong in writing it. May have dated it ahead, May 4th or 5th.
“Q. Did you receive any other payment of $15.00 in May?
“A. No, sir.
“Q. Would you say that at this time that the payment of May 4th or 5th was the same?
“A. Yes, sir.”

The testimony of plaintiff that he did not receive two payments from defendant in May, 1925, is not contradicted by de-' fendant, and defendant nowhere testifies that he made two payments in that month.

Under the conflicting testimony given by plaintiff and defendant the lower court gave judgment for plaintiff.

The defendant pleading payment, the burden was on him to prove it. Valdoz vs. O’Keefe, 2 La. App. 362.

Under all the evidence we are convinced that the defendant failed to establish his plea of payment by a fair preponderance of the evidence, and that the judgment appealed from is correct, and accordingly it is affirmed.


author: REYNOLDS, J. WEBB, J.

text:
    No. 2620
    Second Circuit
    RHODES v. BROADWAY
    (April 16, 1929. Opinion and Decree.)
    (May 8, 1929. Rehearing Refused.)
    Rusca & Cunningham, and H. Lester Hughes, of Natchitoches, attorneys for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for defendant, appellant.
   REYNOLDS, J.

Defendant appeals from a judgment decreeing plaintiff to be the owner and entitled to the possession of two tracts of land situated in Natchitoches parish, La., described as follows, to-wit: (1) A certain strip of land extending along the east side of the N. E. 14 of the S. W. 14 of section 20, township 7 north, range 9 west, containing 2 48/100 acres; and, (2) a tract of land situated in the corner of the N. W. % of the N. W. 14 of the S. E. 14 of the same section, township, and range, containing 3 acres—and for $20, as rent of the land for the years 1924 and 1925, and for $50, as the value of a fence appropriated and destroyed by him, with legal interest on both amounts from judicial demand.

Plaintiff deraigns title to the land as follows:

To the first described tract:

United States to J. C. Monasco; patent, dated January 14, 1889; recorded in Book 146 at page 236 of the conveyance records of said parish; conveying S. W. % of section 20, township 7 north, range 9 west.

J. C. Monasco to J. E. Webb; sale, dated December 26, 1900; recorded in Book 104 at page 362 of said records; conveying S. W. %. of section 20, township 7 north, range 9 west.

J. E. Webb to Mrs. Susan Rhodes; sale, dated May 18, 1905; recorded in Book 116, page 157, of said records, conveying the S. W. % of section 20, township 7 north, range 9 west.

Mrs. Susan Rhodes to Lit Rhodes; sale, dated February 1, 1910, recorded February 15, 1910, in Book 128, at page 148, of said records, conveying the S. W. % of section 20, township 7 north, range 9 west.

And to the second described tract:

W. H. Matthews to Lit Rhodes; sale, dated February 11, 1919, recorded February 15, 1919, in Book 144, at page 242, of said records, conveying: “Three acres of land in the corner of the N. W. % of N. W. % of S. E. % sec. 20 T. 7 R. 9, together with all of the improvements thereon, situated in parish of Natchitoches.”

Defendant deraigned title as follows:

W. H. Matthews to J. E. Broadway; sale, dated May 21, 1923, recorded May 21, 1923, in Book 151, at page 354, of said records, conveying:

“The east half of the Southwest quarter of the Northwest quarter. of Section 20 Twp 7 N. R. 9 West, containing 20 acres, more or less, in Natchitoches parish, Louisiana.”

This deed, he alleges, inadvertently misdescribed the land bought and sold; that what he intended to buy and his vendor to sell was the corresponding part of the S. E. % of S. W. % of the same section, township, and range, and he called his vendor in warranty, and his vendor answered admitting that what he intended to sell and defendant to buy was the E. % of the S. E. % of S. ,W. % of section 20, township 7 north, range 9 west, and declared that he was willing to execute a new deed to defendant correcting the error.

And defendant, in his answer, asked that the deed from his vendor to him be reformed accordingly, and that he be decreed to be the owner and entitled to the possession of the E. % of the S. E. 14 of S. eW.'% of section 20, township 7 north, range 9 west, instead of the corresponding part of the S. W. % of N. W. % of the same section, township, and range.

The judgment rejects defendant’s demand against his warrantor.

As to the second described tract, defendant bases his title on a sale from W. H. Matthews to him dated May 21, 1923, recorded the same day in Book 151, at page 361, of said records, conveying:

“The west half of the Southeast quarter of Section 20 Township 7 North Range 9 West,, containing 80.00 acres, more or less; being the same property acquired by the vendor from J. E. Webb.”

X.

As to the 2 48/100 acres in the N. E. % of S. W. % of section 20, township 7 north, range 9 west, that £he judgment decrees plaintiff to be the owner and entitled to the possession of, plaintiff shows an unbroken chain of title going back to the United States government, and, in addition thereto, was in actual possession of the land and had it under fence and in cultivation when evicted by defendant.

Defendant shows no title whatever to the land. Conceding that, as alleged by him, the sale from W. H. Matthews to him of May 21, 1923, inadvertently described other land than that bought and sold, it was neither alleged nor proved that what Matthews intended to sell and he to buy included the land awarded plaintiff.

The land described in the sale from Matthews to defendant is:

“The east half of the Southwest quarter of the Northwest quarter of Section 20 Twp 7 N. R. 9 West, containing 20 acres, more or less, in Natchitoches parish.”

In his answer and call in warranty he says the deed describes the land as:

“E. % of S. E. Vi of N. W. Vi Sec. 20 Tp. 7 N. R. 9 W.”

—an altogether different tract of lane! frpm that the deed does describe.

In his prayer he asks that the deed from Matthews to him be reformed so as to describe the E. % of S. E. % of S. W. Vi of section 20, township 7 north, range 9 west.

Conceding that what Matthews intended to sell and defendant to buy was the E. Vs of the S. E. Vi of the S. W. Vi of section 20, township 7 north, range 9 west, as the judgment appealed does not award plaintiff title or possession of any part of this land and. plaintiff has not appealed from the judgment nor answered the defendant’s appeal, we are unable to see wherein defendant was prejudiced by that part of the judgment decreeing plaintiff to he the owner of and entitled to the possession of the 2 48/100 acres in the N. B. Vi of S. W. Vi of section 20, township 7 north, range 9 west.

II.

As to the three acres in the corner of the N. W. Vi of N. W. % of S. E. Vi of sec. 20, township 7 north, range 9 west, both plaintiff and defendant deraign title from a common author, but that of plaintiff is prior both in date of execution and date of registry, and while that part of the description “three acres in the corner” is not as definite as it might have been, yet as plaintiff’s title was on record and the land under fence and under cultivation and in his actual, physical possession when defendant bought, we think the deed sufficiently identified the land covered by the deed to put defendant on notice that it belonged to plaintiff. Croom vs. Noel, 143 La. 189, 78 So. 442.

Plaintiff testified that he was in actual possession of the land even for a year and a half before he purchased, and had cleared it up and put a fence around it so as to have it under the same fence with his land situated in the S. E. Vi of section 20, township 7 north, range 9 west.

J. E. Webb, one of the vendor’s in defendant’s chain of title, testified:

“Q. Do you know the three acres in the N. W. Vi of N. W. Vi of S. E. %?
“A. I do.
“Q. What was the physical location of the three acres?
“A. Do you mean the boundary line of ■the three acres?
“Q. Was there any natural mark there?
“A. The creek made the boundary line mighty near to the line. It divided Lit's place. The creek made a bend and went nearly in to the line, the north line, running east and west. It cut it off from the other land; that is, the creek cut it off.
“Q. It was cut off by the creek?
“A. Yes, sir.
“Q. Do you know, as a matter of fact, that Lit Rhodes had been in possession of the three acres?
“A. I do.
“Q. Did you know it before the alleged accession by Broadway?
“A. I did.
“Q. It ha-s been known in the neighborhood?
“A. All over the country.
* * *
“Q. What creek is this that bounded this?
“A. Sandyburb.
“Q. How much of Mr. Broadway’s land was on the west side of Sandyburb creek?
“A. After the three acres was took off?
“Q. Yes?
“A. That was all on the west side of the creek.
“Q. That was the only land that was in this quarter section on the west side of Sandyburb creek?
“A. Yes.
“Q. Was it next to the north line?
“A. It was on the north line.
“Q. Right next to it?
“A. Right in the corner;1 in the northwest corner.
“Q. How did it lie?
“A. You mean how was it bounded?
“Q. Was it a long strip?
“A. Look—(Hereupon the witness drew a diagram).”

But defendant insists that the description of the three acres was too vague to identify the land, and that the deed, though registered, was not notice of plaintiff’s title.

We deem it unnecessary to decide this question, for the reason that it were necessary defendant had been in good faith in his purchase for the defense to be available. Wilfert vs. Duson, 131 La. 21, 58 So. 1019.

Defendant’s own testimony shows that he was not in good faith. He testified that he knew the creek cut the three acres off from the rest of the quarter section and that plaintiff had bought and was in possession of it. He testified;

“Q. You knew it was cut off?
“A. Yes.
“Q. You knew also that Lit was in possession of it?
“A. I suppose he was in possession.
“Q. You know Mr. Hughes?
“A. I have seen him.
“Q. He passed the act of sale?
“A. Yes.
“Q. Didn’t you ask Mr. Hughes in the office to go to the records in the court house and see whether that Matthews deed called for 77 acres or 80 acres, and didn’t he come to the court house here and look?
“A. He came to the court house, but I didn’t ask him; but they made the reservation, and I told him to hold on a minute, and he said ‘what is the matter,' and I said, that don’t look ' like the description, I don’t like the description, and I said there is not any three acres reserved in the title; and he said, ‘what are we going to do about it,’ and I said, I can’t accept any deed like that, and he said ‘may be I had better go’ or ‘I will go to the court house,’ and he said ‘there is no reserve in the Matthews deed.’ ”

On cross-examination he testified;

“Q. As a matter of fact, did you know who cleared the land on both sides of the fence?
“A. It was Rhodes, I suppose; it was supposed to be his.
* * *
“Q. Counsel asked you something about the sale of this three acres of land in the northwest corner of the northwest quarter of the southeast quarter. When did you first learn anything about the three-acre sale to anybody else?
“A. When I went to have the deed made.
“Q. To this piece?
“A. I believe Mr. Clark was talking to me about it a few' days before I bought it and got the deed.
“Q. And when you got to Mr. Hughes’ office, what was it that took place?
“A. When he gave in the numbers of the land—
“Q. Who?
“A. Mr. Matthews; and he said ‘three acres reserved in the northwest of the northwest’; and I told him to hold on a minute, and I did not like this description.
“Q. You mean the description of the land?
“A. Yes; and he said ’why,’ and I said ‘there is no reserve made in the land when I bought it’; and I went against the deed with the reserve in it.”

At that time plaintiff’s deed to the three acres had already been on record more than four years.

It would therefore appear that defendant insisted that the three acres be included in the description of the land he was buying from Matthews, although well aware that Matthews had already sold the three acres to plaintiff.

Not to award plaintiff the land would be to permit defendant to profit by his own wrong.

The district court allowed plaintiff $22 as rent of the land for the years 1924 and 1925 and $50 as the value of the fence . around the land appropriated or destroyed by defendant. The award of judgment for these amounts is well supported by the evidence.

The district court rejected defendant’s demands in warranty against his vendor, and he asks that in the event the judgment appealed from be affirmed that he be awarded judgment against his warrantor.

“If in case of eviction from a part of the thing, the sale is not cancelled, the value of the part from which he is evicted is to be reimbursed to the buyer according to its estimation, proportionately to the total price of sale.” Civil Code, art. 2514.

The price of the sale was $800, or $10 per acre. Defendant has been evicted from three acres of the land bought, and is therefore entitled to recover from his warrantor three-eightieths of the price, or $30.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to award defendant J. E. Broadway judgment against his vendor and warrantor in the sum of $30, with legal interest thereon from judicial demand, and that in all other respects the judgment appealed from be affirmed. The warrantor to pay the cost of this appeal.

WEBB, J.

I respectfully dissent in so far as the judgment in the petitory action is affirmed, as, in my opinion, the description of the property is insufficient, which could not under the pleadings and evidence have been made certain, and I am of the opinion that the petitory action should have been dismissed as of nonsuit. McManus vs. Stevens, 10 Ann. 177; Wilson vs. Marshall, 10 La. Ann. 329; Williams vs. Kelso, 7 La. 406.


author: ODOM, J.

text:
    No. 2647
    Second Circuit
    GALLTEN v. McKEITHEN
    (April 5, 1929. Opinion and Decree.)

      Jas. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Breazeale and Breazeale, of Natchitoches, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brought this suit to recover of defendant $1,000 for the use and benefit of his minor son, and $500 for his wife, mother of the son, as damages resulting from slanderous remarks alleged to have been made by defendant about plaintiff’s son. Plaintiff alleges that the slander and defamation took place in Natchitoches parish, on or about November 19, 1925, and this suit was filed in that parish on December 8th of that year.

Paragraph 14 of plaintiff’s petition charges that the injury was done in the parish of Natchitoches where the said Mc-Keithen (defendant) is temporarily residing and doing business.

Defendant in limine filed an exception to the jurisdiction of the court ratione ■personae, alleging that he was a resident of the parish of Caldwell and that the suit should have been brought in that parish. On trial of the exception, it was sustained by the lower court, and plaintiff’s suit dismissed. . Plaintiff has appealed.

OPINION.

The testimony shows beyond question that the defendant was a resident of the parish of Caldwell when the alleged cause of action arose and when the suit was filed in the year 1925. He was a married man, his family consisting of a wife and two children who resided with him at Grayson, in Caldwell parish. He had lived in Caldwell parish for many years, paid poll taxes, was a registered voter, and in 1924, was a candidate for the office of clerk of the district court. Defendant and his two brothers were engaged in road building, under the firm name of “McKeithen Construction Company,” and had built roads in several parishes, including Natchitoches, where they were at work in 1925. Defendant followed these constructing jobs into the various parishes and, in conjunction with his brothers, supervised the work, and, while doing so, slept and ate at the camps, but always returned to his home in Caldwell parish for the weekend and Sundays. He never at any time intended to establish and did not establish a domicile outside of Caldwell parish.

Such being the case,, this suit should have been brought against the defendant in Caldwell parish, under article 162 of the Code of Practice, which provides that:

“It is a general rule in civil matters that one must be sued before his own Judge— that is to say, before the Judge having jurisdiction over the place where he has his domicile or residence.”

There are exceptions to this rule, however, as noted in article 165 of the Code, but none of these exceptions apply in this case.

Paragraph 9 of the latter article, as amended by Act 130 of 1926, provides that:

“In all cases where any person, firm or corporation shall commit trespass, or do anything for which an action for damage lies or where any corporation shall fail to do anything for which an action for damage lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicile of such person, firm or corporation.”

But this case is not governed by that amendment because the alleged cause of action arose and the suit was filed in 1925, prior to the amendment; but falls under Act 71 of 1914, page 187, which amended and re-enacted article 165 of the Code. Paragraph 9 of the act, as amended in 1914, and as it stood in 1925, reads as follows:

“In all cases where any corporation shall commit trespass or do or fail to do anything for which an action for damages lies' it shall be liable to be sued in the parish where such damage is done or trespass committed.”

It will thus be seen that under the Code, as it stood when the cause of action arose in this case and when the suit was filed, only corporations could be sued in parishes other than their domiciles for damages arising out of acts done or for failing to do something.

The damages claimed in this suit did not arise from any act done in connection with the business conducted by defendant in the parish of Natchitoches, nor did they result from a trespass.

Counsel for appellant did not argue the cause orally nor has he filed brief, and we are not favored with his views on the point, but, under the facts and the law applicable, we think the district judge did not err in holding that the suit should have been brought at the domicile of defendant in the parish of Caldwell.

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


text:
    No. 3203
    Second Circuit
    HERNDON v. TEXAS & PACIFIC RY. CO.
    (March 12, 1929. Opinion and Decree.)
    (May 5, 1929. Rehearing Refused.)
    (May 20, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Defendant has appealed from a judgment condemning it to pay to plaintiff the value of a horse killed by one of its passenger trains.

The only person who saw the animal struck was the fireman. He testified that when he first saw the animal, it was 125 feet from the track, but he later stated that he first saw it when it was 100 yards away. But we think it makes no difference whether the animal was 125 feet or 300 feet away from the track when the fireman first saw it. He testified that when he first saw the animal, it was approaching the track and that he first informed the engineer of that fact, and that the engineer applied the brakes. The testimony of both the fireman and the engineer shows that the train was running at a speed of approximately 45 miles an hour, and that it was impossible to check the speed or to stop the train in time to avoid striking the horse, and we think there is no negligence on the part of the defendant company on account of its failure to check or stop the train. But the testimony shows that the only precaution taken in order to avoid striking the animal was to apply the brakes. Under the circumstances of this case, that was not sufficient. The animal when first seen was a considerable distance from the track and was approaching the track. It was the fireman’s duty to take the usual and ordinary precautions to frighten the animal away from the track; namely, to ring the bell and blow the stock whistle, neither of which was done in this case. When the fireman saw this horse approaching the track, if he had blown the whistle or given any other alarm, the animal would have instinctively run away from the track, and not towards it.

When an animal is seen approaching a railroad track, an effort to stop the train, or to check its speed, is not the only duty which devolves upon the fireman and the engineer. They should make an effort to frighten the animal so as to prevent it from coming upon the track, and their failure to take such precautions is negligence.

In 33 Cye., p. 1227, the duty of those in charge of trains to blow the whistle or ring the bell in order to frighten animals away from the track is stated as follows:

“Ordinarily, it is the duty of the engineer to use such precautions to frighten animals as soon as they are discovered on the track, or if they are in dangerous proximity to the traqk or the circumstances make it probable that they will come upon it.”

In the case at bar, the animal was seen approaching the track. It was unquestionably the duty of the fireman to blow the whistle or to give some other alarm and we think, if he had done so, the animal would have stopped or gone the other way.

Lapine vs. New Orleans, Opelousas & Great Western Railway, 20 La. Ann. 158.

The testimony amply supports the judgment of the district court, and it is accordingly affirmed, with costs in both courts.


text:
    No. 2658
    Second Circuit
    GREENE ET AL. v. DELAFIELD
    (April 5, 1929. Opinion, and Decree.)
    (May 8, 1929. Rehearing Refused.)
    Lee and Lindsey, of Minden, .attorneys for plaintiffs, appellees.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiffs seek judgment against defendant for $1115.35 with legal interest thereon from judicial demand, for this, to-wit: $911.35 as the manufactured value of 36,434 feet of timber, board measure, cut by him from their land and converted into lumber, diminution in value of 72,000 feet of timber, board measure, left on the land, uncut, $25, cost of having the lines around the land surveyed and established, and $35, cost of having the timber cut and uncut surveyed and scaled.

They allege that the cutting, removal and manufacturing was done in bad faith.

In the alternative, they seek judgment against defendant for $446.27, which amount is made up of the last two items and of two other items, namely: $182.27, value of 36,454 feet of timber, board measure, cut and removed from the land, and $204, diminution in value of timber left uncut.

Defendant admitted the cuttting and removal and manufacture but denied that it was done in bad faith and alleged that it was done in the belief that he had the right to do it, and denied that the timber cut was worth the value put on it or that the timber left uncut had been damaged and denied that he was liable for the cost of surveying or scaling.

On these issues the case was tried and there was judgment in favor of plaintiffs and against defendant for $612, with legal interest thereon from judicial demand, and defendant has appealed.

OPINION

Plaintiffs allege bad faith on the part of defendant in cutting and removing the timber and defendant, in his answer, animadverts on plaintiffs and their attorneys ; but the evidence does not show bad faith on the part of defendant or justify defendant’s criticisms of plaintiffs or their attorneys.

Plaintiffs seek to recover the value of the timber cut and removed in its manufactured state on the theory that the cutting and removal were in bad faith; but the only fact proved by them in support of that contention was that defendant was without title to the timber. However, this fact alone is insufficient to prove bad faith.

“The law presumed against fraud. Where acts are susceptible of two constructions, one consistent with honesty and fair dealing, and the other odious and criminal, the burden of proof is on the one who charges the latter, and wishes the court to think the odious and criminal one is true.”

Barlaw vs. Harrison, 51 La. Ann. 875. 25 So. 378.

Defendant testified that he cut and removed the timber in the belief that he had the right to do it; he had been negotiating with plaintiffs to buy it and thought he had bought it, and was to pay for it at the price of $2.50 per thousand feet, board measure. His testimony on this point is to some extent corroborated by that of T. E. Hearn, who testified to a conversation he had with J. L. Mclnnis, one of the plaintiffs, and that:

“Q. Do you remember an occasion when Mr. J. L. Mclnnis was in Sarepta and spoke to you about a message to Mr. Delafield?
“A. Yes, sir..
“Q. Do you remember what the message was that you delivered to Mr. Delafield?
“A. He asked m§ what Mr. Delafield was doing, and I told him that he was planning on putting in a small mill, and he says ‘that is a mighty foolish thing to do’ but to tell him that he had some timber he wanted to sell him, and I told him.
*****
“Q. Did you deliver that message to Mr. Delafield?
“A. Yes, sir. I saw him, I think, the same day, or it might have been the next day.”

It is obvious that defendant was aware plaintiffs were looking after their timber and that he could not cut and remove it without their becoming aware of it; and therefore it is altogether improbable that he would have attempted to do so, even on the theory that he would have cut and removed the timber if he could have done so without their knowing it. And it is also obvious that defendant knew the timber was for sale and that be could buy it at a fair price and that he thought he had arranged to cut and remove it and pay for it afterwards. And as to the price, he knew that if he cut before this was agreed on he would be at a disadvantage in bargaining, and we are satisfied that he believed that the price plaintiffs would name would not be unreasonable. The evidence shows that plaintiffs, or at least some of them, were willing to accept $4 per thousand feet, board measure, for the timber cut, a fair price according to the evidence, if the cutting was not in bad faith, and it is not probable that they would have been willing to accept less than manufactured value had they believed defendant was seeking to get their property without paying for it.

The evidence convinces us that defendant cut and removed the timber and manufactured it into lumber in good faith and with the intention of paying for it at its fair stumpage value, and therefore the only question in the case left to be determined is the amount of plaintiffs’ damage.

Plaintiffs’ evidence shows that they had been offered $4 per thousand feet, stumpage, for the timber, and would have accepted that price for it had it not been that the intending buyer wanted to pay for it not its estimated quantity as it stood growing on the land, but the quantity it actually measured after being sawn into boards. Plaintiffs wanted the price ascertained from the estimated stumpage.

Plaintiffs’ witnesses put the stumpage value of the timber cut at $5 per thousand feet, while defendant’s witnesses fixed it at from $1.50 to $3. Taking the average of the maximum value put on it by defendant’s witnesses and the value put on it by plaintiffs’ witnesses, we think that the value of the stumpage should be placed at $4 per thousand feet. To this should be added $1 per thousand feet, which amount, the evidence shows, was the net profit per thousand feet on the manufactured value of the timber. And we conclude that plaintiffs should have judgment on the basis of $5 per thousand feet for the 36,454 feet of timber cut and removed from their land and manufactured into lumber by defendant.

As to the diminution in value of the timber on the land left uncut by defendant, and for which plaintiffs claim $2 per thousand feet, the evidence shows this diminution does not exceed 50 cents per thousand feet, and that plaintiffs are only entitled to recover $36 on this score.

We do not think plaintiffs are entitled to recover either the cost of establishing the boundaries of their land or expense of having the timber cut and uncut estimated in board measure. They are presumed to know the boundaries of their land and cannot exact of defendant the cost of having these established. Besides, both items were expenses incidental to preparing their case for trial and for which defendant is not liable. Had plaintiffs sold the timber to defendant or any one else they would necessarily have been at the same expense since the purchaser would have been entitled to have the boundaries of their land pointed out to him and they would have had to have the stumpage estimated in order to ascertain how much the buyer should pay them.

Plaintiffs contend that inasmuch as the trial judge allowed $612 as damages he necessarily must have found as a fact from the evidence that defendant was in bad faith.

We cannot concur in this conclusion, The manufactured value of the timber was shown to be about $20 per thousand feet, and had the Court believed he was in bad faith it doubtless would have rendered judgment against him for over seven hundred dollars, for the timber cut, to say nothing of the other items of damage sued for.

Under all the evidence, we think plaintiffs are entitled to judgment for the stumpage value of the timber, $4 per thousand feet, plus $1 per thousand feet, net profit on its manufactured value, on 36,-454 feet, or $182.27.

They are also entitled to recover the diminution in value of the timber on the land left uncut, or $36, being 50 cents per thousand on 72,000 feet.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount of the judgment awarded plaintiffs from $612 to $218.27, and that as amended, the judgment appealed from be affirmed.

Defendant to pay the costs of the lower court, plaintiffs to pay the cost of the appeal.


author: LECHE, J. LECHE, J.

text:
    No. 395
    First Circuit
    HAAS v. O’PRY FARMERS BANK & TRUST CO., INTERVENER
    (February 13, 1929. Opinion and Decree.)
    (April 13, 1929. Rehearing Refused.)
    (May 20, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    John W. Lewis, of Opelousas, attorney for plaintiff, appellant.
    W. J. Carmouche, of Crowley, attorney for defendant, appellee.
   LECHE, J.

The facts in this case are that the Farmers Bank & Trust Company held a mortgage note of defendant affecting certain property belonging to defendant, amounting to seven thousand dollars. The mortgage by which the note was secured had been recorded on February 21, 1920. On January 7, 1926, defendant gave another mortgage on the same property to secure a note of twenty-five hundred dollars in favor of the plaintiff, Mrs. Jeanette R. Haas, and that mortgage was recorded oh January 14, 1926.

On November 12, 1926, defendant sold the same property at private sale to Albert Breaux, for a true consideration of fifteen hundred dollars. Breaux at that time was surety for defendant for having guaranteed the Farmers Bank & Trust Company against loss on its claim represented by the seven thousand dollar note of defendant. 'The consideration in the sale from defendant to Breaux was represented by a no.te made and subscribed by Breaux for fifteen hundred dollars, which was turned over to the Farmers Bank & Trust Company in satisfaction of a balance for an equal amount remaining due by defendant and by Breaux as surety on the mortgage note of seven thousand dollars. The property by this sale passed out of the hands of defendant and became owned by Breaux and its value went into the hands of the Farmers Bank & Trust Company to cover a balance of fifteen hundred dollars remaining due and unpaid on the note of defendant for seven thousand dollars then held by the Farmers Bank & Trust Company. Thereupon or shortly after, the Farmers Bank & Trust Company surrendered the seven thousand dollar note and caused the mortgage by which it was secured to be canceled and erased from the record.

On October 21, 1927, Mrs. Jeanette R. Haas, plaintiff, instituted foreclosure proceedings against defendant for a balance of $1331.93, remaining due and unpaid on her mortgage note of $2500, of date January 7, 1926, which proceedings she subsequently converted into via ordinaria. It was only then that Breaux and the Farmers Bank & Trust Company realized that when defendant sold the property to Breaux on November 12, 1926, the property was encumbered with the mortgage held by plaintiff. The Farmers Bank & Trust Company, now holding the property, or to be more accurate, holding its value in the shape of Breaux’s note for $1500, ■filed the intervention and third opposition which forms the basis of this controversy.

The prayer of intervener and third opponent’s petition is (1) That the mortgage resulting from the inscription of the sale and mortgage passed and recorded on November 12’, 1926, be recognized as priming and outranking the mortgage claim of plaintiff. (2) That plaintiff’s mortgage be decreed void and without force and effect. (3) In the alternative, that plaintiff’s mortgage be canceled and annulled insofar as it pretends to affect the property transferred by (defendant) O’Pry to. Albert Breaux. (4) Again in the alternative, that said mortgage of plaintiff be-declared pai'd and extinguished. (5) Again in the alternative, that other property of defendant be sold before the real estate involved herein be seized and sold and the proceeds attributed to the payment of plaintiff’s claim, before proceeding against the property covered by intervener’s mortgage * * *, and for general relief.

Intervener argues that the foundation of its suit is the case of Pugh vs. Sample, 123 La. 791, 49 So. 526, 39 L. R. A. (N. S.) 834. That case holds in effect, that where a mortgagor makes a sale of his property to his mortgagee In consideration of the mortgage debt resting on the property, such sale does not extinguish the mortgage debt by confusion, where the title is imperfect or encumbered, and that the mortgage which was apparently destroyed upon -the assumption of perfect ownership in the vendee, revives 'and comes back into existence.

Third opponent’s position, if we rightly understand it, is that when Breaux bought the property on November 12, 1926, in consideration of the balance of $1500 due to it on its $7000 mortgage note, the title being encumbered with the $2500 mortgage of Mrs. Haas, the plaintiff, Breaux, acquired nothing, and its mortgage claim was not extinguished by confusion, but either it has revived or has continued to exist unimpaired.

The difficulty in applying to this case the equitable doctrine established in the Pugh vs. Sample case, supra, is that the sale made by the mortgagor was not made to third opponent, mortgagee, and therefore there could arise no confusion of claims as between the third opponent and the defendant mortgagor. Although Breaux may have been acting to protect himself as surety and to protect third opponent, he was nevertheless a third person and still holds the title though encumbered with the mortgage of Mrs. Haas. If on the other hand, the sale of the property by defendant to Breaux did not affect the $7000 mortgage of opponent, that mortgage cannot now be recognized as still existing for the reason that third opponent ordered and obtained its cancellation. And besides this there is still another impediment to the recognition of third opponent’s mortgage of $7000 and that is that third opponent does not pray for that particular relief. The prayer of its petition is for recognition of the $1500 dollar mortgage given by Breaux on November 12, 1926, which it now holds in lieu of its original $7000 mortgage.

It must be observed that the question of registry of mortgages is not an issue in the case of Pugh vs. Sample, nor in the cases cited as authority for that decision. Although registry is of no effect as between the mortgagor and mortgagee, it is of the essence of a mortgage as to third persons. Here we are confronted with a situation where the mortgage was actually canceled and erased from the public record by order of the holder. It is no doubt true that it acted through error of law, but that cannot be pleaded against third persons who may have acted on the face of the public record.

After third opponent canceled its mortgage of $7000, superior in rank to that of plaintiff, plaintiff had the right to assume that it had been extinguished and to proceed on the assumption that her own mortgage was the first in rank on the property.

If the Farmers Bank & Trust Company had bought the property in consideration of $1500, the balance due on its $7000 mortgage note, had not canceled the mortgage and the title to the property had been good and unencumbered, the debt would have become extinguished -by confusion and the mortgage, an accessory obligation, would have vanished with the extinction of the debt. If on the other hand, under the same conditions, the title had been defective and encumbered, there would have been no extinguishment of the debt and no extinguishment of the mortgage, both would have revived and continued to exist unimpaired. Such is the equitable doctrine enunciated in the case of Pugh vs. Sample, as we understand that decision.

But here the property was not bought by the Farmers Bank & Trust Company, it was "bought by Breaux, a third party. The Farmers Bank & Trust Company voluntarily canceled its $7000 mortgage. It did not do so under compulsion and plaintiff, Mrs. Jeanette Haas, had the right to assume that the $7000 debt had been paid and extinguished. Again it appears that the judgment appealed from grants a relief which is ultra petitionem. The mortgage securing the $1500 note, made and consented to by Breaux is clearly outranked by that of Mrs. Jeanette Haas, and yet intervener prays that it be recognized as priming that of Mrs. Haas. It does not pray that the $7000 mortgage be recognized as revived and as being unimpaired, the sole relief which could be granted under the Pugh vs. Sample decision.

We believe that the judgment of the trial court is erroneous and for the reasons stated, it should be avoided and reversed, and that intervener and third opponent’s demand should be rejected, and it is so ordered.

ON APPLICATION FOR REHEARING

LECHE, J.

Intervener has applied for a rehearing in the above matter, and it urges earnestly that we have erred both as to the facts and as to the law pertinent to the'case.

We referred in our opinion to intervener as mortgagee in the mortgage securing O’Pry’s $7000 note. Technically speaking, intervener is correct inasmuch as Breaux was the real mortgagee. We further considered the case as if intervener was the owner of the $7000 note, when in point of fact, intervener only held the note as collateral security for a debt of which O’Pry was the principal debtor and Breaux was the surety. (Record, p. 61.) On the other hand, it is patent that intervener had possession and custody of the $7000 note, for that is a necessary condition in the contract of pledge, and" it further appears from the testimony (Record, pp. 71-77) that intervener also had control of the $7000 note, for the mortgage securing it was canceled by the intervener and it does not appear that the note ever, was returned to the possession and custody of Breaux, but was sent by intervener directly to the Recorder of Mortgages for cancellation.

It is also beyond question that at the time O’Pry sold the property to Breaux, on September 12, 1926, the note of $7000 was in the possession and custody of intervener and that Breaux could not therefore surrender it to O’Pry. Immediately on the (passage of that sale, Breaux owned the property, intervener held the note with all the indicia of owner so far as third persons were concerned, and O’Pry owed the debt. This is the situation created by the sale from O’Pry to Breaux on September 12, 1926. Hence our deduction that the principle recognized in Pugh vs. Sample, 123 La. 791, 49 So. 526, 39 L. R. A. (N. S.) 834, could not apply.

To create the extinction of a debt by confusion, the qualities of debtor and creditor must be united in the same person. C. C. art. 2217. But these qualities were certainly not united in either of these parties, for Breaux held the property and intervener held the debt. So far as O’Pry and Mrs. Haas are concerned the debt was extinguished by novation, when intervener surrendered its claim _ for $1500 secured by the $7000 mortgage note of O’Pry, and accepted in lieu thereof the note of $1500 signed and subscribed by Breaux on September 12', 1926, and in pursuance of that intention, intervener further surrendered the $7000 note to the Recorder for cancellation of the mortgage by which it was secured.

Intervener urges anew, other grounds alleged in its petition for relief, but these have already been passed upon and we see no reason to change our original findings of law. The question involved is complicated, has received our earnest consideration and has been solved to the best of our understanding.

The application for rehearing is therefore refused.


text:
    No. 3208
    Second Circuit
    BRITTON v. STUDER ET AL.
    (May 8, 1929. Opinion and Decree.)
    W. F. Pipes, of Monroe, attorney for plaintiff, appellant.
    Munholland and Munholland, of Monroe, attorneys for defendants, appellees.
   ODOM, J.

In the month of June, 1927, the plaintiff and defendants entered into a contract by the terms of which plaintiff sold to defendants certain standing timber at $3.50 per thousand feet. Defendants erected their mill on plaintiff’s land and cut and removed timber therefrom until about the middle of September. By the present suit, plaintiff seeks to have the timber contract annulled on the ground that defendants have failed to comply with its provisions. He asked for and was granted a temporary restraining order prohibiting defendants from cutting and removing any more timber from the land until the further order’s of the court. Defendants answered the suit on its merits, denying that they had breached the contract, and setting up, on the contrary, that they had carried out the contract to the letter, and asked that the temporary restraining order be dissolved and that plaintiff’s suit be dismissed at his costs. On final trial, the court rejected plaintiff’s demands and dismissed his suit. Plaintiff has appealed.

OPINION.

As to the price of the timber and as to the payments, the contract contains the following stipulation:

“Three & 50/100 Dollars per thousand, settled every two weeks by log scale or lumber cut, at option of Britton, lumber cut left at place of sale of lumber.”

The testimony makes it clear that up to the time of the filing of this suit, plaintiff had been paid for all of the timber cut and removed by defendants. Plaintiff does not seriously deny that; but the burden of his complaint is that he was not furnished with a statement showing the exact amount of lumber manufactured from the timber, and further, that the amount due him was not left at the place where the lumber was sold.

It seems that when defendants approached plaintiff with the view of purchasing his timber, he told them that he had had some trouble with relation to sales of timber and that he was not willing to accept their scale of the logs, and, furthermore, he was not willing to sell by log scale, but, on the contrary, wanted $3.50 per thousand feet of the lumber manufactured from his timber. The contract provides that he shall be paid by log scale or lumber cut at his option, and he chose the latter method of determining the amount due him, which was satisfactory with the defendants. The contract further provides that “lumber cut left at place of sale of lumber.” There is some dispute as to what is meant by the latter clause, plaintiff claiming that it was understood that the price was to be left at the place where the lumber was sold; the defendants claiming that the understanding was that the amount of lumber manufactured, or a statement thereof, was to be left at the place where the lumber was sold.

From a reading of the contract itself, taken in connection with the testimony, we are convinced that it was never intended by the parties that the price was to be left with the purchasers of the lumber and paid by them to Britton. On the contrary, we think it was intended and understood by both parties that, in order to determine the amount of money due plaintiff, a statement of the amount of lumber sold should be made by those who purchased it and that plaintiff was to be paid by defendants a sum based upon this statement.

The testimony shows that all of the lumber manufactured from logs taken from plaintiff’s land was sold to C. C. Bell Manufacturing Company, Slagle-Johnson- Lumber Company, and the Chess-Wymond Company. These concerns did not issue to Britton, the plaintiff, statements showing the exact amount of lumber which they had purchased from defendants, but they did render to defendants invoices showing the exact amount they had purchased. These invoices, together with the books of the defendants, were exhibited .to plaintiff, and, furthermore, when checks were drawn in his favor, a statement of the amount of lumber sold, as shown by the invoices, was attached to the check. As stated, Brit-ton does not seriously contend that he was not paid all that was due him, but says that it was impossible for him to determine the exact amount of lumber sold. The testimony is clear enough that he did know the exact amount of lumber sold, because the invoices were exhibited, and, while he, himself, can neither read nor write, his son, who has some education and can read, write, and figure, took the invoices from time to time, looked over and checked them, and, on behalf of his father, approved them. Whereupon the plaintiff cashed the checks. The testimony further shows that plaintiff himself operated a motortruck and hauled to market practieally all the lumber cut by the defendants, and that which was not hauled by him was hauled by a truck driver employed by one of the defendants, the testimony showing that the son of plaintiff and the other truck driver were hauling at the same time and that plaintiff’s son was perfectly familiar with the amount of lumber hauled, both by himself and the other truck driver. So that plaintiff had a double check on the amount of lumber sold and to whom sold. The testimony satisfies us that Britton could have at any time gotten all the information he needed from the purchasers of the lumber. He visited'at different times those concerns, but not with the view, as we understand it, of getting statements from them as to the amount of lumber sold, but mainly for the purpose of having them deduct from the price of the lumber sold the amount due him for stump-age. This request was refused, the reason given being that the purchasers did not care to become involved for the payment of stumpage. As already stated, we do not think it was intended by the parties that the purchasers of the lumber should actually pay plaintiff for the stumpage. The contract does not provide for that.

The testimony shows that at the time the suit was filed there was approximately 10,000 feet of lumber and a few sawlogs on the yards which had not been paid for. But, under the contract and under the agreement, the amount therefor could not be paid until the lumber was sold.

One of the defendants swore that plaintiff’s only objection to proceeding with the contract was that he had been offered more for the timber and that he was going to try and have it set aside. Plaintiff did not take the stand in rebuttal and deny that he made that statement. Whether that was his real reason for filing this suit or not we do not know. But, from a reading of the testimony as a whole, in connection with the contract, our conclusion is that his demand for cancellation of the contract is unfounded, and that the judgment appealed from is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs in both courts.