author: REYNOLDS, J..

text:
    No. 3382
    Second Circuit
    SHEVNIN v. CHESTER
    (January 21, 1929. Opinion and Decree.)

      T. A. Carter and J. M. Shevnin, of Alexandria, attorneys for plaintiff, appellant.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J..

Plaintiff, John Shevnin, sued defendant, A. J.' Chester, in the District Court of Rapides Parish to obtain judgment against him for 1319.25, alleging him to be a resident of" that", parish.

Citation was issued' to the sheriff, who made return thereo'n as follows:

“Received C. & P. in this matter on the 29 day of Feb. '1928 and on the 29 day of Feb. 1928 made service thereof upon defendant at his domicile by handing same at the place of residence of said defendant at __________________________ in Rapides Parish, Louisiana, ________________ miles from the courthouse of said parish to Sarah Francis Chester a person above the age sixteen (16) years residing in house occupied by defendant, which facts were ascertained by me from the person upon whom service was made before making such service.
“U. T. Downs, sheriff,
“By U. T. Downs.”

Defendant filed the following exception:

■ “Now into court, through his undersigned counsel, comes A. J. Chester, defendant in the above numbered and entitled cause, and appearing herein solely for the purpose of this exception, excepts to the plaintiff’s petition on the following grounds, to wit: that no proper or legal citation was made upon this exceptor, nor was any legal or proper return of service of said citation made herein. Wherefore, premises considered, exceptor prays that after hearing this exception be sustained and the suit be dismissed at plaintiff’s cost. Prays for general and eguitable relief.”

A hearing was had on this plea and—

“Judgment rendered decreeing return to show defective citation and plaintiff be permitted to proceed by rule against party defendant and have sheriff amend his return so as to show proper citation.”

Plaintiff thereupon filed a rule upon the sheriff and defendant to show cause why the sheriff’s return should not be amended so as to show the facts. He alleged, in effect, that defendant had been legally cited and that. the return was defective. He further alleged that the defendant was then an absentee, and he asked that he be served with the order to show cause pursuant to Act No. 179 of 1918.

The sheriff accepted ■ service and answered, alleging that his return was incorrect and proposed to amend it so as to" make it read as follows:

“I received copies of the petition and citation in the within matter on the 29th day of February, 1928, and, on the 29th day of February, 1928 made service upon the defendant, A. J. Chester, at his domicile, by handing the same, at his residence, No. 1415 Chester Street, Alexandria, Rapides parish, Louisiana, about one mile from the court house, Rapides parish, Louisiana, to Sarah Frances Chester, a person above the age of sixteen years, residing in the house occupied by said defendant, said defendant being temporarily absent from the parish at the time, all of which facts were ascertained by me, sheriff, by interrogating the said Sarah Frances Chester before making said service.
“U. T. Downs, sheriff in and for the parish of Rapides, state of Louisiana.”

Service was had upon defendant by delivering the copy to his attorneys.

To this rule to show cause the attorneys filed the following plea:

“Now into court came-Peterman, Dear & Peterman, attorneys for the above named defendant, and appearing herein solely for the purpose of this exception, except to the service made on the undersigned, for the reason that in paragraph seven of the said petition for said rule it is alleged .that the aforesaid defendant, A. J. Chester, is now an absentee, and absent from this state, being in the state of Texas, and appearers show that no proper or legal service can be made on an absentee except through a curator ad hoc duly appointed according to law.
“Wherefore, premises considered, the undersigned attorneys for the said A. J. Chester, upon whom service of the said rule was made, as aforesaid, pray that same be discharged at the -plaintiff’s cost.
“Pray for general and equitable relief.
“Peterman, Dear & Peterman,
“Attorneys for defendant.”

The defendant filed the following plea:

“Now into court, through his undersigned counsel, comes A. J. Chester, made defendant in the above numbered and entitled cause, and expressly reserving his rights under the exception of want of proper service, heretofore filed in said cause, for answer to the petition for said rule, to show cause, says:
1.
“Respondent admits the truth of the facts alleged in the first paragraph of said petition.
2.
“Respondent admits the truth of the facts alleged in the second paragraph of said petition.
3.
“Respondent, not having sufficient information in regard to the truth of the facts alleged in the fourth paragraph of said petition, in order to justify a belief therein, respondent therefore denies same.
4.
“Respondent, not having sufficient information in regard to the truth of the facts alleged in. the fourth paragraph of said petition, in order to justify a belief therein, respondent therefore denies same.
5.
“Respondent admits the truth of the facts alleged in the fifth paragraph of said petition.
6.
“Respondent shows that the-. averments contained in the sixth paragraph of said petition merely express the desires of the plaintiff concerning the said rule, and therefore respondent neither denies nor affirms said averments.
7.
“This respondent admits, as alleged in the seventh paragraph of plaintiff’s petition, that he is now an absentee, and absent from this state, being in the state of Texas, and also admits that the law firm of Peterman, Dear & Peterman are his attorneys of record, but denies, as alleged in said paragraph, that service of said rule upon said attorneys is in accordance with Act No. 179 of 1918 of the legislature of Louisiana.
“Wherefore, premises considered, this respondent prays that after hearing said rule be discharged at the cost of- said plaintiff.
“Prays for general and equitable relief.
“Peterman, Dear & Peterman,
“Attorneys for respondent.”

On trial of the rule the following judgment was rendered:

“This matter coming on to be heard, after evidence adduced and argument submitted by counsel for plaintiff and defendant, the court having taken the matter under advisement, and considering the law and the evidence to be in favor of the defendant above named, who is also defendant in said rule.
“It is, by reason of all the foregoing, ordered, adjudged and decreed, that the said rule heretofore taken in said cause on the 5th day of May, 1928, to show cause why the service and return of the citation issued and served in said cause on the 29th day of February, 1928, should not be amended, is hereby discharged, and
“It is further ordered, adjudged and decreed that the return of service of the petition and citation in this cause is invalid and illegal.
“Judgment rendered in open court on the 29th day of May, 1928.
“Judgment read and signed in open court on this the 31st day of May, 1928.”

Prom this judgment the plaintiff appealed.

The defendant has filed in this court the following plea:

“Now come Peterman, Dear & Peterman, attorneys for A: .J. Chester, defendant and appellee in the above numbered and entitled cause, and move to dismiss the appeal taken therein by the said John Shevnin, plaintiff and appellant, for the reason that the judgment of the Ninth Judicial District Court of Rapides parish, Louisiana, from which said appeal has been taken, was interlocutory and not final, nor was such judgment one that can cause the said plaintiff and appellant irreparable injury.
“Wherefore, premises considered, movers pray that, after hearing, this motion be sustained and said appeal be dismissed at the cost of the appellant.
“Pray for general and equitable relief.”

OPINION.

ON MOTION TO DISMISS APPEAL.

We are of the opinion that the judgment was appealable.

Article 566 of the Code of Practice provides that—

“One may likewise appeal from all interlocutory judgments, when such judgments may cause him an irreparable injury.”

It is alleged in the petition for the order to show cause and in defendant’s answer' thereto that since service of the citation ‘defendant has permanently left the state of Louisiana and become a resident of the state of Texas and is in fact absent from the state of Louisiana. This being so, it will be impossible to make new service on him, either personal or domiciliary, and plaintiff could only obtain a personal judgment against him by instituting suit against him at his new domicile in the state of Texas. It requires no argument to show that this consequence would be an irreparable injury. Tt has been held by the Supreme Court in several cases, that where the consequences of an interlocutory order are such that they cannot be remedied by final decree, and the party will be‘ driven to another action to obtain his rights, it is an irreparable injury, from which he may appeal. (State ex rel. Perkins vs. Judge, 12 La. Ann. 455, and cases there cited.)

The article, 566 of the Code of Practice, allows an appeal where an order may work an irreparable injury, and it appears to us that an order which necessarily compels a party, in order to enforce his rights, to institute another suit for the same cause of action is covered by the article.

See, further:

Barrow vs. Duplantis. 148 La. 149, 86 So. 718.

Goss vs. Turner, 149 La. 327, 89 So. 20.

We conclude, therefore, that the judgment was appealable.

ON THE MERITS.

It appears from the answer of the sheriff to the rule to show cause and from the evidence taken on the trial of that rule that the defendant was legally served with copy of the petition and citation. Therefore the sheriff should have been authorized to make a proper return, by amendment or otherwise, conforming to the facts and the law. (Adams vs. Basile, 35 La. Ann. 101.)

See, further:

St. Louis Jewelry Co. vs. Imbraguglio, 123 La. 389, 48 So. 1007.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and the case remanded to the District Court and the sheriff permitted to amend his return and for further proceedings according to law.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3450
    Second Circuit
    STEVENS v. BOOTH MOTOR CO., INC
    (January 21, 1929. Opinion and Decree.)
    Williams and Williams, of Colfax, attorneys for plaintiff, appellant.
    C. H. McCain, of Colfax, attorney for defendant, appellee.
   STATEMENT OP THE CASE.

REYNOLDS, J.

Plaintiff sued defendant for the amount of principal, interest and attorney’s fees represented by certain promissory notes purporting to be signed by defendant, drawn payable to the order of The Brenard Manufacturing Company and by it endorsed in blank and transferred to him, he alleges, by the payee before maturity, for value and in due course.

Defendant answered pleading, in effect, the general denial.

' Whereupon plaintiff filed an amended and supplemental petition wherein he alleged that defendant and The Brenard Manufacturing Company had entered into a written contract, the original of which he attaches to' and makes part of his petition, whereby The Brenard Manufacturing Company sold and delivered to defendant certain radio apparatus and received from defendant in payment thereof promissory notes corresponding to those sued on and that The Brenard Manufacturing Company had returned them to defendant for correction and had received back from defendant the notes sued on, and that if the notes sued on are not valid they were executed by defendant for the purpose of defrauding The Brenard Manufacturing Company and plaintiff.

Answering the supplemental and amended petition defendant alleged that the contract and notes referred to therein were cancelled by agreement of itself and The Brenard Manufacturing Company, and denied the other allegations of the amended petition.

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

OPINION.

The issues between defendant and The Brenard Manufacturing Company raised by the pleadings are not before the court for consideration as The Brenard Manufacturing Company is not a party to the suit; and the only questions presented for our determination are, were the notes sued on signed for the defendant by some person authorized to obligate it, or, if not, was the signer’s act ratified by defendant, and, if so, did plaintiff acquire the notes in due course before maturity and for value.

The notes are signed:

“Booth Motor Co., Inc.
“By W. McCain.”

Wilmot McCain, called on cross-examination by plaintiff, testified that he was the president of the defendant and that the notes sued on were not signed by him or by any one having authority to sign them for the defendant. He said that they were signed by his wife who had informed him she had signed a second lot of radio papers—

And:

“Q. Did you notify The Brenard Manufacturing Company that the notes had been sent by your wife to them — was not endorsed — was no ratified or approved by you, and not to act on them, or anything to that effect?
“A. I wrote The Brenard Manufacturing Company that the only papers I had signed had been- cancelled and that I had them in my possession and not to-—
“Q. That is not my question, I asked, did you write them that the notes were not ratified?
“A. That pertains — that is all I did write them.
“Q. Not to what?
“A. Not to bind us in any way with the contract — that was the meaning I had; I may not have put it in the proper words.”

And, further:

“Q. Give me that express receipt and that letter of cancellation when this — after these notes that you say were sent off unauthorized by you — did this radio outfit and set come?
“A. Yes, sir; it came.
“Q. What did you do with it?
“A. Wrote them that we were sending them back and put them in the express office and got a receipt for them and I think paid the expressage.
“Q. You returned everything?
“A. Everything that came, we returned it.
“Q. That you have got nothing and received nothing under this contract?
“A. Nothing but a whole lot of worry.”

He also testified that when the apparatus arrived it was taken out of the office of the carrier without his knowledge and that when he discovered it he had the apparatus repacked and carried back to the express company to be returned to the shipper and he produced the express company’s receipt for the shipment.

The evidence establishes to our satisfaction that the person who signed the defendant’s name to the notes sued on was without authority to obligate the defendant and that her act was not only not ratified by defendant but expressly repudiated by it.

It follows, therefore, that the notes were illegal, null and void in the hands of plaintiff even though he was, as asserted by him, an innocent third holder, as to which it is unnecessary for us to express an opinion.

The judgment of the lower court rejecting plaintiff’s demand and dismissing his suit is correct and is therefore affirmed.


author: WEBB, J.

text:
    No. 3436
    Second Circuit
    RANDALL v. DIXIE ROOFING CO., INC.
    (January 21, 1929. Opinion and Decree.)
    J. B. Thornhill, of Monroe, attorney for plaintiff, appellee.
    McHenry; Montgomery, Lamkin and Lester, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, Mrs. C. M. Randall, authorized by her husband, E. B. Randall, instituted this action against defendant, Dixie Roofing Company, Inc ir which she alleged that she had constructed a brick building, and that defendant had been awarded the contract of placing the roofing on same, under a guaranty or warranty that it would maintain the roofing for a period of ten years, and would furnish free of charge such material as might be necessary to repair any defects of material or workmanship during such period; that shortly after the roof was constructed it began to leak, due to defective material and workmanship, of which she gave defendant notice, and defendant having failed to repair the roof, she had the repairs made, and she prayed for judgment for the cost of the repairs and damages to the building resulting from the leaks.

Defendant excepted to the jurisdiction of the court ratione personae, which was overruled, and reserving its rights under the exception it answered admitting that plaintiff liad erected the building, and that it had been awarded the contract to construct or lay the roofing, and that it had executed in favor of plaintiff a maintenance agreement, which was the best evidence of the agreement, and therefore denied the allegations that it had agreed to furnish free of charge material necessary to make repairs arising from defects of material or workmanship, and further alleged that the leaks complained of were due to the faulty construction of the building, and insufficiency of the drainage pipes to carry off the water falling on the roof, and during the course of the trial defendant filed a plea of prescription of one year.

On trial judgment was rendered in favor of the plaintiff for the cost of repairing the roof and damage to the building resulting from the leaks, and defendant appeals.

The exception, and pleas to the jurisdiction and of prescription, were not pressed either in argument or brief, and we presume they have been abandoned (Richardson vs. Packwood, 1 M. (N. S.) 297; Stansborough vs. Wilson, 13 La. Ann. 494; also Williams vs. Bridges, 14 La. Ann. 721; Cameron vs. White, 16 La. Ann. 85; Gauche vs. Gondran, 20 La. Ann. 156; Barber Asphalt Paving Co. vs. New Orleans, 49 La. Ann. 1609, 22 So. 955; DeGrilleau vs. Boehm, 106 La. 472, 31 So. 74; Louviere vs. La. Ry. & Nav. Co., 146 La. 667, 83 So. 890), but defendant now urges that plaintiff cannot enforce the maintenance agreement for the .reason that she failed to allege and prove that the building was her separate property, under her control, and for the further reason that the contract for constructing the roof having been made by defendant with a contractor who had undertaken the work of constructing the building, there was not any privity of contract between plaintiff and defendant, and it further urged that the evidence did not establish the maintenance agreement, or, if so, that the evidence failed to show that the defect in the roof was covered by the agreement.

The position that it was essential for the plaintiff to have alleged that she was the owner of the building, was not raised in the trial court, and the only objection made to the introduction of evidence tending to show that plaintiff was the owner of the building was that parol evidence was not admissible to establish her ownership, but there is not any authority cited to support the objection, and as the question of title was not at issue, and the plaintiff’s ownership was merely an incidental fact to be determined, we think that the testimony that she owned the property and the admission of her ownership by her husband, was sufficient to overcome any presumption that the property was community property, which appears to be the basis of the position that plaintiff, the wife, could not enforce the maintenance agreement, and considering that the defendant admitted that the maintenance agreement was made in favor of plaintiff, she had the right to enforce it, and foreclosed any discussion óf whether such an agreement inured to the benefit of the owner of the work 16 be maintained, or to the contractor who may have subcontracted the work.

The contention that the evidence did not establish the maintenance agreement is apparently based on the theory that plaintiff alleged upon a written agreement and that as she had not produced any such agreement the court could not determine whether the defects in the roof were covered by the warranty; however, plaintiff did not allege upon a written warranty or maintenance agreement, her allegation being that defendant had agreed to maintain the roof in a waterproof condition for a period of ten years and that it would furnish free of charge suitable material to make such repairs as might be necessary ’if any defects in the roofing, fabric, workmanship caused a leakage within the period of ten years, and the plaintiff admitted that such an agreement had been made, and the evidence further showing that the maintenance agreement covered defects or workmanship, which from our review of the evidence we find was caused principally if not wholly by defective workmanship, in that the workmen failed to extend the roofing fabric far enough up against the firewall, the defendant was liable for the cost of remedying the defect and the damage to the building caused by the leak from such defect, and the judgment is therefore affirmed.


text:
    No. 3322
    Second Circuit
    HANNA MOTOR CO. v. WILSON WILLIAMS, INTERVENOR
    (December 19, 1928. Opinion and Decree.)
    (See 6 La. App. 177.)
    Warren Hunt, of Rayville, attorney for intervenor, appellant.
    Ellis & Ellis, of Rayville, attorneys for plaintiff, appellee.
   REYNOLDS, J.

This ease was before us once before (Hanna Motor Co. vs. Wilson, 6 La. App. 177), on appeal by intervenor from a judgment rejecting his demands. On rehearing on that appeal we set aside the judgment appealed from and remanded the ease for the admission of additional evidence. A new trial was had and additional evidence introduced and again there was judgment rejecting intervenor’s demands and the case is again before us on appeal from the new judgment.

We find the new evidence to be cumulative merely and it gives us no reason to abandon the conclusion expressed in our first judgment on the first appeal and we are constrained to adhere to that conclusion.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that intervenor, John Williams, have judgment against plaintiff, Hanna Motor Company, decreeing the property seized to belong to the community existing between John Williams and Carrie Williams and that the seizure be released.

It is further ordered, adjudged and decreed that plaintiff, Hanna Motor Company, pay all costs of the intervention and of this appeal.


author: ODOM, J.

text:
    No. 3376
    Second Circuit
    CITIZENS BANK & TRUST CO. OF RUSTON v. COOK
    (December 19, 1928. Opinion and Decree.)
    Dhu Thompson, of Ruston, attorney for plaintiff, appellee.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellant.
   ODOM, J.

The defendant prosecutes this appeal from a judgment condemning him to pay to the plaintiff bank the sum of ONE THOUSAND ($1,000.00) DOLLARS, together with interest thereon.

The facts necessary to be stated at this time are that, on February 10, 1919, W. S. Willhite and his wife borrowed the sum of $1,000.00 from the defendant, Cook, and, as evidence of the debt, executed their promissory note for that sum, due one (1) year from its date, and, to secure said debt, mortgaged certain real property situated in Jackson Parish — the mortgage and the note being made payable to the said W. H. Cook. The note was not paid by Willhite when due, and was extended on two separate occasions. At some time, just prior to August 3, 1923, the defendant, Cook, pressed Willhite to pay the note. Willhite, being without means, arranged with the plaintiff bank to take up the noté for him, and notified Cook to call at the bank and get his money. Cook took the note to the bank, endorsed it “without recourse,” and was paid the face value thereof. That was on August 3, 1923, after the maturity of the note. The bank held the note until 1925, when it attempted to collect it from Willhite by suit, but failed, because, previously, Willhite had been adjudged a bankrupt and had been discharged. The bank, it seems, scheduled its claim in the bankruptcy proceedings, but was paid nothing.

The plaintiff bank, by its present suit, is pursuing Cook for the amount which it paid him, together with interest thereon.

Cook presents two defenses; first, that the transaction which took place between him and the plaintiff bank on August 3, 1923, when he delivered the note and received face value therefor, was not a sale of the note, but constituted a payment thereof by the bank as the agent of Willhite, the maker; and second, that, if it be held that the transaction was a sale, then he was relieved of any obligation to the bank on account of his endorsement of the note, “without recourse.”

Taking up these defenses in the order stated, it is shown that Cook presented the note to the bank at the request of. Willhite, the maker, after Cook had informed him that he must pay it. There had been no previous negotiations between the bank and Cook. When Cook demanded payment of the note by Willhite, he, being unable to meet the obligation, asked Dud Holland to take up the note for him. Holland refused. Willhite then asked the plaintiff bank to take it up for him, and the bank agreed to do so. Whereupon Willhite saw Cook, according to Willhite’s testimony, and told him “to go to the bank and get his money, that I had made arrangements at the Citizens Bank and for him to go and get his money.” Willhite did not borrow any money from the bank, but merely got the bank to agree to take up and carry the note for him. Cook testified that he “saw Willhite about a month or ' so before the note was due, and. I told him I would have to have my money * * * I told him I would have to collect the note as I needed the money, and he told me he would make arrangements for me; for the money, and I saw him later on, down on the streets, and he told me to take that note around to the Citizens Bank & Trust Company and get my money * * ■* I carried the note around and he (meaning Breed, the cashier) paid off.”

He further testified that he did not intend to sell the note to the bank, but understood that the bank was paying it for Willhite.

Cook further stated that when he presented the note to Breed, the cashier, “I told him that Willhite told me to bring that note up here that I held against him and get the money, it amounted to something like $1,000.00,” and that the money was then and there paid to him.

He admits that he endorsed the note at the time and said, “I couldn’t tell you why I did that — ‘without recourse.’ Didn’t amount to anything, I didn’t think.”

The transaction was handled for the bank by Breed, the cashier. He testified that Willhite had no money in the bank at the time; that the note was not paid by the bank for Willhite, but was purchased by the bank from Cook at Willhite’s request.

Under the testimony, as above detailed, we hold that the transaction between Cook and the bank constituted a transfer and not a payment of the note. In determining whether transactions of this kind amount to a sale or whether they are payments of negotiable instruments, we must - look to the intent of the parties. That the plaintiff bank intended to purchase - the note in question is beyond dispute. Breed, the cashier, positively so testified, and his testimony is borne out by the facts that Willhite did not request the bank to pay the note, but to take it up and carry it for him; that Willhite had no funds in the bank with which to pay it, and made no subsequent arrangements for a loan to replace the amount paid by the bank to Cook; and that Cook was required by Breed, the cashier, to endorse the note and that it was not marked paid, but was held by the bank for two years, when suit was filed to collect it.

As to Cook, he knew that the bank did not intend to pay the note, but was purchasing it, as evidenced by the fact that, when called upon he endorsed the note, which endorsement was necessary only for the purpose of a transfer, as the note was made payable to him or his order. There was no suggestion or intimation to him, either by Willhite, the maker, or Breed, the cashier, that the bank was paying the note. On the contrary, the acts and declarations of the parties and the surrounding circumstances, all go to show that Cook intended to sell and the bank intended to purchase the note.

If, however, the testimony left any doubt as to the intention of the parties, we should resolve that doubt in favor of the bank on the legal presumption that the transaction was intended as a transfer and not as a payment.

In Wing vs. Union Central Life Insurance Company, 181 Mo. App. 381, 168 S. W. 917, and in Cantrell vs. Davidson, 180 Mo. App. 410, 168 S. W. 271, it was held that where a stranger to a note pays his money therefor and takes it up, the presumption is that he has bought; it.

“If a bill or note is paid after its maturity by a stranger to the paper, it will in general be held to be a purchase and not a payment of the instrument.” 8 C. J. 588.

Under the Negotiable Instruments Law, Act 64 of 1904, Section 30, if a note is payable to order, it is negotiable by endorsement of the holder, completed by delivery. The requirements for the transfer of this note were fulfilled. The note was payable to Cook and he endorsed it and delivered it to the bank. In the absence of an express agreement that the note was to be paid, he can not, under the circumstances, be heard to say that this was a payment and not a sale of the note.

Cook’s plea that his endorsement “without recourse” released him from any obligation to the bank is equally unavailing. He sold the note to the bank, a good faith purchaser, for a sound consideration, the full face value thereof. By that sale, he warranted that the note was what it purported to be and that he had “no knowledge of any fact which would impair the validity of the endorsement or render it valueless.” Negotiable Instruments Law, Act 64 of 1904, Section 65.

The note on its face purported to be a mortgage note. It bears on its face the legend “Ne Varietur,” “Identified with Act of Mortgage. Executed before me this 10 day of February, 1919. Robbie D. Ramsey, Dy. C. D. C. and ex-officio Notary Public.”

The note may be said to be in fact a mortgage note. But Cook warranted more than that; he warranted that he had no knowledge of any fact “which would impair ‘the validity of the instrument or render it valueless.” If then, as matter of fact, Cook knew of any fact which rendered the note valueless, and failed to disclose that fact to the bank at the time he transferred it, he was guilty of a legal fraud and is liable for his breach of warranty. Fraud may be committed by a suppression of the truth, as well as by a deliberate misstatement of the facts.

Here are the facts pertinent to the issue involved: Cook loaned Willhite $1,000.00 on February 10, 1919, and took his note for that amount, secured by mortgage on real property; he took the note and the original act of mortgage, carried them to Ruston, where he put the mortgage, in his box at a bank. The mortgage, although dated February 10, 1919, was not filed and recorded until November 29, 1928, nearly four years later. In the meantime, on October 3, 1919, Willhite, the mortgagor, sold the land described in the mortgage. The mortgage, not having been recorded previous to the sale, did not affect the land in the hands of Willhite’s vendee, and, therefore, the security for the debt was lost. Cook, the holder of the note, was informed by the Clerk and Recorder by letter in November, 1922, that the act of mortgage had not been recorded, and further, that Willhite had sold the land. Cook admits receipt' of the letter and also admits that the Clerk conveyed to him this knowledge in conversation. After* having been reminded by the Clerk that the mortgage had not been recorded and that the property on which it rested had been sold, Cook delivered the act of mortgage to the clerk and it was duly filed and recorded. Knowing these facts, knowing that the security for his debt had been lost by his failure to record the mortgage timely and prior to the sale of the land by Willhite, he sold the note to the plaintiff bank in August, 1923, more than eight (8) months after these facts were by him discovered. Admittedly, he did not disclose these facts to the plaintiff bank at the time he sold the note for its full face value, and the plaintiff at the time had not gained knowledge of them otherwise.

Under the plain letter of the law, by the sale of the note to the bank, even though under an endorsement “without recourse”, Cook warranted that he knew of no fact which would render the note valueless. By suppressing the truth, he committed a fraud upon the purchaser and breached the statutory warranty; and, as he was paid full value for the note, he must now respond to the bank.

In the case of Cresder vs. Brown, 79 Okl. 170, 102 Pac. 417, the Supreme Court of Oklahoma held, construing the Uniform Negotiable Instruments Law, that if one acquired a negotiable instrument without consideration and then assigned it for a valuable consideration, endorsing it “without recourse” when, as a matter of fact, said note was without consideration, he is responsible to the purchaser for breach of warranty; and further held that an endorsement “without recourse” by the payee of a negotiable promissory note contains as a term thereof, with the same force and effect as if expressly written therein, the statutory warranty that he has no knowledge of any fact which would render it valueless.

Aside from his obligations, under the Negotiable Instruments Law, Cook is bound, as a vendor of the note, even though he endorsed it “without recourse,” under our code and jurisprudence, to return to the bank the amount which he received, with interest.

“One who sells a credit or an incorporeal right, warrants its existence at the time of the , transfer, even though there was no warranty expressed.” C. C. 2646.

And:

“The sale or transfer of a credit includes everything which is an accessory to the same, as suretyship, privileges and mortgages.” C. C. 2645.

In the case of Templeman vs. Hamilton & Company, 37 La. Ann. 754 (760), the Court said:

“It is no longer an open question in our jurisprudence that the assignor of an incorporeal right, even without warranty, guarantees not only the existence of the right under the express terms of Article —, of the Civil Code, but also the existence of the accessory securities attached and transferred with it.”

And the Court then quoted from Troplong, as follows:

“When a credit secured by a mortgage is sold, it is not sufficient that the credit should exist, it is necessary that the mortgage should be entire at the time of the contract. If a part' of the property was at the time freed from the mortgage, the transferor would be bound to guarantee the transferee, who thus fails to find all the securities on which he counted, the absence of which njay endanger the capital which is due to him.-”

In the case of Corcoran vs. Riddell, 7 La. Ann. 268, a judgment was sold without recourse. It developed that the judgment had no legal existence, and the vendor was required to return the price he received. The Court said:

“But the Code is very stringent on this point, and has expressly. provided that even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restoration of the price, unless the buyer was aware at the time of the sale of the danger of eviction, and purchased at his risk and peril. This principle of the contract of sale applies not only to the sale of corporeal things, but also to the sale of a debt.”

C. C. 2616 (2646). See Toler vs. Swayze, 2 La. Ann. 881; Johnson vs. Boice, 40 La. Ann. 273, 40 So. 163; Bruning vs. City of N. O., 122 La. Rep. 316, 47 So. 624; Jenkins vs. Parish of Caddo, 7 La. Ann. 559; Bienvenu vs. The Citizens Bank, 6 La. Ann. 523; Rutherford vs. Hennen, 13 La. Ann. 336.

The • note which Cook sold to the bank purported on its face to be secured by a mortgage, and, when he sold the note, he sold its accessory right, the security. But there was no security. It had. been destroyed by the failure to record the mortgage prior to the sale of the land by Willhite, and Cook knew that. By his contract of sale, even without recourse, he warranted that the note was secured by a mortgage on real estate, when as a matter of fact, that was not true. Under our code and jurisprudence, he must refund to the bank the price which he received for the note, with interest, it being conceded that the bank purchased in good faith and without knowledge that the security had been lost.

Counsel for Cook argue that the bank was not a good faith purchaser on account of Cook’s endorsement “without recourse.” Our investigation discloses that all the jurisprudence is the other way.

Plaintiff asks that the judgment be so amended as to allow attorney’s fee, but this is not a suit on a promissory note and we find no warrant for allowing attorney’s fee in a case like this.

Finding no error in the judgment appealed from, we affirm it, with costs in both courts.'


author: JONES, J.

text:
    No. 11,531
    Orleans
    DISMONE v. CARROLLTON EXCELSIOR & FUEL CO., LTD.
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)

      Deutsch and Kerrigan, of New Orleans, attorneys for [plaintiff, appellee.
    R. F. Becker, Jr., of New Orleans, attorney for defendant, appellant.
   JONES, J.

In this sequestration 'suit, plaintiff claims ownership of twenty-three (23) cords of wood. Defendant, after admitting ownership, claims a privilege upon the wood for the payment of certain freight and unloading charges, amounting to one hundred twenty-one and 72-100 dollars.

After judgment for plaintiff recognizing its ownership, subject to defendant’s privilege for nineteen and 22-100 dollars, defendant appealed.

As plaintiff has not answered the appeal, we cannot consider the legal question as to the validity of the privilege.

The sole question before us is one of fact — as to whether defendant purchased from Morrison one or two cars of wood. As Mr. Goll, president of the defendant’ company, stated in his letter of March 12, 1928, that he had purchased only one car, and as this statement is confirmed by the preponderance of the testimony,’ and by the surrounding circumstances, the decision of the trial Judge is clearly correct on this''point.

The judgment is therefore affirmed.


text:
    No. 3351
    Second Circuit
    KEEFE v. CITY OF MONROE ET AL.
    (January 21, 1929. Opinion and Decree.)

      Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    H. H. Russell, of Monroe, attorney for defendant, appellee.
   ODOM, J.

This is a possessory action, coupled with a demand for damages, brought by the plaintiff against the City of Monroe and the members of the Commission Council. The City and the members of the Council filed exceptions of no cause of action, which were sustained by the Court, and plaintiff has appealed.

Plaintiff alleges in substance that in the spring of 1926, he was employed by the City of Monroe, acting through its Mayor, Arnold Bernstein, its Commissioner of Finance and Utilities, D. A. Breard, and its Commissioner of Streets and Parks, Will Atkinson, to design and superintend the construction and maintenance of a nine hole golf course in the “Forsythe Municipal Park of the City of Monroe;’.’ that under his employment and supervision there was' completed in said City Park the said golf course and that there was constructed in said park, adjoining said golf course, a brick club house, such as is necessarily and generally used by the general public playing golf in such places, and the housing of the superintendent or persons in charge of such courses, and the keeping and selling of light refreshments, golf clubs, balls, and other paraphernalia kept for sale around such places to the general public; that since the completion of said club house in 1926, he has been “in actual and exclusive possession of the same under the contract and agreement by and between him and the City of Monroe and its Commissioners,” the contract and agreement being annexed, and that he was placed in possession thereof by the City and its Commissioners; that he has continued in actual, peaceful and legal possession and occupancy of said golf club house since the early part of the summer of 1926, until January 6, 1928, (more than a year); that, during said period of time, there was kept in said club house clubs and other paraphernalia belonging to the players, as well as a stock of goods such as is usually kept for sale in such places; that said stock of goods and its sale were for the account solely of petitioner, and that the profits on the sales amounted r.o several hundred dollars each month; and that on December 9, 1927, he received the following letter;

“City of Monroe,
“Monroe, Louisiana,
“December 9th, 1927.
“Mr. John F. Keefe,
“c/o Riverside Club,
“Monroe, Louisiana.
“This is to notify you that your employment to Superintend the golf course at Forsythe Park, or in any other capacity connected with the City is hereby terminated, effective January 1st, 1928.
“Very truly yours,
“(Signed) Arnold Bernstein, Mayor,
“ D. A. Breard, Commissioner of Finance and Utilities.
“ Will Atkinson, Commissioner of Streets and Parks.”

He further alleges that he refused to yield possession of said property, and that on January 6, 1928, the said City of Monroe, acting through its Mayor and Commissioners and Chief of Police, Apgar, sent police officers to the place, arrested one of his employees and “took unlawful and forcible possession of said Edward Keefe (his employee) and, over his protest, removed and expelled him by physical force from said building and threatened him with imprisonment in the city jail if he undertook to go back into said premises;” that said conduct was “an unlawful trespass on the actual, lawful and peaceful possession and rights of your petitioner and has deprived him of his lawful possession and right of possession over said premises and the right to enjoy the same; and that your petitioner is entitled, through injunctive remedies of the Court, to be restored to said possession of said property by mandatory injunction and to be maintained therein by enjoining and restraining said parties and each of them from interfering with such possession when restored by said mandatory injunction,” and that he is entitled to $950.00 damages, “by reason of the trespass upon and invasion of his rights” and $1,000.00,' attorney’s fees.

He prayed for judgment “ordering and directing that a mandatory injunction issue compelling the City of Monroe and the said parties hereinabove named, both as officials and individuals, to restore and deliver possession and occupancy of the premises herein described to your petitioner, and that an injunction further issue thereupon maintaining such possession in your petitioner until otherwise dispossessed by due process of law,” and for damages as. aforesaid.

The contract alleged upon and annexed to plaintiff’s petition reads as follows;

“This constitutes an agreement entered into between the City of Monroe and John F. Keefe:
“I, John F. Keefe, agree to design and superintend the construction of a nine hole Golf Course (Municipal) in Forsythe Park, Monroe, La. I also agree to superintend the maintenance of said golf course for a period of five (5) years, during which time I agree, if called upon, to consult with the officials of the City of Monroe and to give advice on all questions connected with the maintenance, alteration, operation of said golf course.
“The usual fee for the above mentioned services is One Thousand ($1,000.00) Dollars for’ the designing and laying out of the golf course, and Eighteen Hundred ($1,800.00) Dollars per year for supervision and maintenance.
“In consideration of the above mentioned services to be rendered by me, I agree to accept, in exchange for said services, the following proposition from the City of Monroe:
“We, the Officials of the City of Monroe, in consideration of the foregoing services to be rendered by John F. Keefe, agree to construct a building or provide space in a building to be constructed by the City of Monroe for the purpose of permitting the said John F. Keefe, free of any charge, to conduct in said building or space an enterprise or business consisting of the selling of soft drinks, sandwiches, golf clubs, balls and other articles of a similar nature that are usually sold in a place of this character for the comfort and convenience of golf players.
“We agree to grant this concession to John F. Keefe for a period of five (5) years from the date of the 'opqtaing of the said Municipal Golf Course during which time we further agree not to permit the operation of another concession of a similar character that would in any way affect or interfere with the privileges granted by us to John F. Keefe under this agreement.
“We, the Officials of the City of Monroe, agree to live up to and fulfill all terms of this agreement for the whole period of this contract (five years) or as much of the period (five years) as we, individually or collectively, remain in term of office as Commissioners of the City of Monroe.
“(Signed) FOR THE CITY OF MONROE,
“Arnold Bernstein,
“Mayor.
“D. A. Breard,
“Com. P. U.
“Will Atkinson,
“Com. S. & P.
“John F. Keefe."

OPINION.

Counsel for defendant, appellee, has not favored us with a brief, nor did the District Judge assign written reasons for sustaining the exception of no cause of action. But, whatever the Court’s reasons may have been, we think his conclusion that plaintiff’s petition discloses no cause of action is correct.

If plaintiff is entitled to relief under the allegations of his petition, which are taken for true insofar as the facts therein set out are concerned, that relief must be granted on one or the other of the following theories;

First: That he is entitled to be maintained in or restored to the possession of said property through a possessory action; or

Second: That his contract with the City, through its Mayor and Commissioners, is one partaking of the nature of a franchise or concession to him to operate a restricted mercantile establishment at the club house in the City Park over a period of years; or

Third: That he was an employee or an officer of the City under a contract which had not expired and which was not terminable by the City and the Commissioners at will.

All parties concede that this was intended to be and is primarily a possessory action, and counsel for plaintiff devote the major portion of their elaborate and exhaustive, brief to argument and citation of authorities in support of the proposition that plaintiff is entitled to be maintained in or restored to possession of the club house through such action.

Article 47 of the Code of Practice provides that:

“The possessors entitled to bring these actions (possessory actions) are those who possess as owners. Persons entitled to the usufruct, or to the use of a real estate, and others having real rights growing from such real estate, may also bring their action, when disturbed in the enjoyment of their rights.”

Plaintiff did not, and of course could not, allege that he owned the club house of which he had possession, and we are informed by counsel that the District Judge sustained the exception because there was no allegation that plaintiff possessed as owner, being of the opinion that one to be entitled to a possessory action must possess as owner. We are not otherwise informed as to the Court’s reasons for his conclusion. However that may be, plaintiff does allege that he had “real rights growing fro'm such real estate,” and counsel contend that such allegation, together with others which were made, that he was disturbed and that he was in actual and real possession at the instant the disturbance took place and that such possession had continued for more than one year (Code of Practice, 49), set forth a cause of action under Articles 46, 47, 48 and 49 of the Code.

Whether one must possess as owner in order to maintain a possessory action, need not be discussed or decided here, because the allegations of plaintiff’s petition make it perfectly clear that the property of which he had possession and which he desires to retain belongs to the Municipality of the City of Monroe and is, therefore, public property and not susceptible of private ownership or the exclusive, private possession of anyone.

Plaintiff alleges that the golf course which he was employed to design and maintain was “in the Forsythe Municipal Park of the City of Monroe,” and his allegations and the contract which he annexes show that the golf course and the club house in connection therewith and adjacent thereto were constructed by and at the expense of the City. . The park, golf course and the club house therein are owned by the public, the municipality and its officers having no interest therein, except to administer the same for the benefit of the inhabitants. And conceding, without holding, that one may, without being the owner of real estate, maintain a possessory action by virtue of “having real rights growing from such real estate,” such action must necessarily relate to private property and not to property the title to which is vested in the public.

There are private things and public things. “Things which are for the common use of a city or other place, as streets and public places, are likewise public things.” (Civil Code, Art. 454.)

Streets and “public squares” are classed together. They are public places as are likewise public parks.

It is settled by recent decisions that mere physical possession of public places is not such possession as entitles the possessor to maintain himself against the public. In Martin et al. vs. City of Lafayette, 162 La. 262, 110 South. 415, the Court said:

“Now the law is, that mere physical possession of public places, even though extending beyond a year, is not such a possession as entitles the possessor to maintain himself against the public until ousted by a petitory action; * * *.”

And in the case of Bruning vs. City of New Orleans et al., 165 La. 511, 115 So. 733, the Court, on first rehearing (page 521), said:

“Suffice it to say that, if the property in controversy be of a nature subject to private ownership and exclusive private possession, then our former decree is correct, and should be reinstated.
“On the other hand, if the property in controversy be of that class of public things, ‘the property of which is vested in a whole nation, and the use of which is allowed to all * * *’ or such as the streets and public squares of aocity (R. C. C. Art. 454), then mere physical possession thereof by a private individual ‘is not such a possession as entitles the possessor to maintain himself against the public until ousted by a petitory action; that the public is entitled to enter thereon at once.’” (Citing Martin vs. City of Lafayette, supra.)

The property of which plaintiff had possession being public property, plaintiff’s possessory action must fall.

Now, as to the contention that the City, through its Mayor and Commissioners, by virtue of the contract alleged upon, granted to the plaintiff “real rights” in said real estate which must now be respected, the answer is that the officers of the City had no authority or power under the city charter or under the general law to vest in plaintiff, by private contract and agreement, such as this was, the private and exclusive right and privilege to hold and possess this public property as against, not only the City, but against the world. The contract in that respect, is wholly ultra vires.

Furthermore, if it be contended that the contract entered into between plaintiff and the city should be construed as one in the nature of a franchise, concession or permit to plaintiff to use said club house for a period of years and have exclusive possession thereof for the purpose of conducting a limited mercantile establishment therein, and that, until the expiration of the time, the city had no right, to oust him, the plaintiff is confronted with the fact that such contract was, on its face, and, from all that may be gathered from the petition, in the very teeth of the city charter.

From plaintiff’s petition, we infer that the City of Monroe had adopted the Commission form of • government, as provided in Act 207 of 1912. Under Section 20 of this act, such powers as it possessed under its original charter, not inconsistent with the act or in conflict with its provisions; were preserved to it unimpaired. The charter of the City of Monroe is Act 47 of 1900. Under Section 9 'of that act, the city has authority and power “to grant franchises, but never without compensation, and never, without advertising for thirty days prior thereto and immediately preceding the granting of same, and inviting competition.” The services of plaintiff in superintending the maintenance of the golf course may be said to be sufficient consideration for a franchise; but the petition and the contract negative the idea that there was any advertisement or competition invited.

Finally, the city was within its rights in dispensing with the services of plaintiff at any time, whether he be considered an officer or an employee. Section 15 of Act 47 of 1900, reads as follows:

“That the Council may remove, at its pleasure by vote of the majority thereof, any officer or employee, elected or appointed by it.”

See Kirkpatrick vs. City of Monroe, 157 La. 645, 102 So. 822.

Counsel for plaintiff cite C. J. 71 and 72 in support of their contention that the city could make a contract with plaintiff to extend over a period of years. The text cited, reads in part:

“In the absence of any constitutional restrictions, the legislature may give to a city authority to make a contract for an unlimited period * *

It may be true, as argued by counsel, that there is nothing in the city charter or the general law prohibiting the City of Monroe from making a contract to run over a period of years, as for instance, contracts to furnish power, lights, fuel, or do public printing. But plaintiff’s contract does not fall under that head. He agreed to “design and superintend the construction of a nine hole golf course.” According to plaintiff’s allegation, the construction of the’ golf course had already been completed. The contract goes on, “I also agree to superintend the maintenance of said golf course for a period of five years.-’ Under the precise letter of this contract, plaintiff was merely an employee of the city.

In the contract, he proposed to perform certain personal services for the city; first, to superintend the construction of the golf course; and second, “I also agree to superintend the maintenance of said golf course,” and he stipulates, “the usual fee for the above mentioned services is $1,000.00 for the designing and laying out of said golf course, and $1,800.00 per year, for supervision and maintenance.”

In lieu of salary or wages for the personal services he proposed to render, he agreed to accept (“in exchange for said services”) the proposition made by the city, which was to allow him the use of the club house “free of charge” to conduct an enterprise or business, the profits from which should be his.

An employee is one who is employed.— Webster, 15 Cyc. 1031; Bouvier’s Law Dictionary, 3d Edition, p. 1035. Plaintiff alleges that he was “employed by the City of Monroe.” An employee in the ordinary sense is one who engages to perform personal services for another, usually, but not necessarily, for stipulated wages or a salary. In this case, plaintiff sold his services to the city for a fixed period, at a stipulated salary of $l,80¡h00 a year, to supervise the maintenance of the golf course. “In consideraton of the foregoing services to be rendered,” the city agreed that he should have the use of the club house. The fact that plaintiff was to have the use of the club house in consideration for his services, in lieu of cash, makes him none the less an employee or servant of the city, and subject to discharge by the city at will.

The rule is that if a petition sets out a cause of action on any point, an exception of no cause of action should be overruled.

Counsel for plaintiff argue that, even if their petition discloses no cause of action on other points, it is good on the demand for damages. We do not think so.

The action for damages in this case is not grounded upon false, illegal arrest or imprisonment, nor for loss of profits or for breach of contract. In his petition, (plaintiff reserved his right to sue for “further damages sustained by him because of the deprivation of the possession and use of said property and for breach of said contract and agreement hereinabove set forth.”

But the action for damages here brought is “by reason of the trespass upon and invasion of his rights and the wanton, illegal ejectment from said premises.”

The fifth point in counsels’ brief sets forth concisely their contention on this point. It reads:

“Since this suit seeks, in addition to protecting possession and damages against the City, to recover damages against the Mayor and Commissioners individually because of invasion of petitioner’s rights and trespass of and invasion of premises of which he was lawfully possessed and illegally ejected from, it states a cause of action, even if petitioner is without right as against the municipality.”

The action for damages, therefore, is one purely for trespass. ,

We have held that plaintiff was an employee of the city and that the consideration for his services was the use of the club house, and held further that said contract of employment might be terminated by the city at its pleasure, and that it was terminated as of date January 1, 1928. The city, through its officers, took possession of the club house on January 6, 1928, and ordered plaintiff to get out. Clearly, plaintiff’s right of possession, in point of duration, was co-extensive with the term of his employment. When the city put at an end plaintiff’s contract of employment, his right to possess the property ceased, and when the city took possession of the club house on January 6, plaintiff had no rights to invade and his occupancy of the property, after his employment ceased, was a trespass. So that, instead of the city being a trespasser, plaintiff placed himself in that category by refusing to surrender possession.

Counsel, in support of their contention that plaintiff is entitled to damages for what they term a trespass upon the property of which he had lawful possession, cite the cases of:

Thayer vs. Littlejohn, 1 Rob. 140;

Jones vs. Pereira, 13 La. Ann. 102;

Fitzgerald vs. Boulet, 13 La. Ann. 116;

Van Wren vs. Flynn, 34 La. Ann. 1158;

Enders vs. Skannal, 35 La. Ann. 1000;

Boniel vs. Block, 44 La. Ann. 514, 11 So. 869;

Parker vs. McGlyn, 52 La. Ann. 1514, 27 So. 946;

Waller & Edmonds vs. Cockfield, 111 La. Rep. 595, 35 So. 778.

These cases are not in point. Each of them, except one, Van Wren vs. Flynn, involves a contract between landlord and tenant. In the strongest of these cases, that of Enders vs. Skannal, the Court said:

“We have held that plaintiff had a legal right to stay on defendant’s land; he was driven therefrom by threats and violence.”

In none of these cases was it held that the plaintiff was a trespasser' and had no rights upon the premises, but the Court established, and has adhered to the rule, that a landlord, in order to dispossess his tenant, whether the lease has terminated or become terminable on account of a violation of its provisions, must resort to eviction proceedings, which are summary, as provided in the Code and the statutes.

But, the relationship which existed between plaintiff and the city, was not that of landlord and tenant, but one of master and servant — a wide distinction.

A lessee has a quasi ownership of the property subject to the lease, (New Orleans City Railway Company vs. McCloskey, 35 La. Ann. 786). He has the right of the enjoyment of the thing granted to him (C. C. 2674) which “right to that enjoyment vests by mere consent of the parties in the same manner and subject to the same rules as are laid down for contracts, which purport to transfer the ownership of property.” (C. C. 1925.) A tenant possesses against the owner, whereas an employee or servant possesses for his employer — his possession being that of the owner.

From 16 R. C. L., Sec. 57, p. 582, we quote the following:

“The legal result of the termination of the employment is that the landowner may take immediate possession and use such force as necessary to expel the employee, who is not deemed to have any distinct possession, his possession being deemed in law during the employment that of his employer without any rights surviving the employment. The question whether the discharge of the servant was justified or not does not affect the master’s right to oust the servant; if the discharge was unjustified, the servant’s remedy is by an action on the contract of employment. As a general rule the master cannot obtain possession of the premises by means of statutory proceedings of a summary nature, which, under the express terms of the enactment, are specially applicable to the relation of landlord and tenant.”

See Act 313 of 1908.

Davis vs. Long, 45 N. D. 581, 178 N. W. 936, 14 A. L. R. 796;

Homan vs. Reddick et al., 97 Neb. 299, 149 N. W. 782 L. R. A. 1915C, 601; see notes in 4 L. R. A. (N. S.) p. 704, et seq.; Ann. Cas. 1916C, 1112;

Bowman vs. Bradley, 151 Pa. 351, 24 Atlantic 1062, 17 L. R. A. 213.

The judgment appealed from is affirmed, with costs in both courts.


text:
    No. 11,641
    Orleans
    PERMENTEL v. MESSMER
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    Prowell, McBride and Ray, and Welton P. Morton, of New Orleans, attorneys for plaintiff, appellee.
    Jesse -C. McGee, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sues for $150.00, amount of a certain post-dated check given by defendant to plaintiff as the purchase price of a second-hand Studebaker touring car.

The defendant admitted the sale and set up fraud and misrepresentation as a defense.

The trial court gave judgment for plaintiff and the defendant has appealed.

The sole issue before us is the question of fraud and misrepresentation. On the trial of the case, after offering the postdated check in evidence, which had a notation showing payment had been stopped, ¡plaintiff rested.

The following statements are not contradicted:

It was a five-year-old Studebaker touring car, which would have cost new over $2,000.00; at the time of the sale it had on it three new tires worth $43.50 each, containing inner tubes worth $6.00, and the fourth tire was worth in the neighborhood of $25.00; on the day of the purchase, defendant’s son-in-law, Bayard, who worked for him, having been brought down by Schaff, an employee of plaintiff, drove the car from plaintiff’s place of , business to defendant’s place of business on Washington Avenue and Dryades Street, a distance of at least three miles, although it had to Tie stopped in order to have water put into the radiator, which was boiling, and for more gasoline; defendant was in the automobile business and did all kinds of repair work and owned at the same time another Studebaker car of the same kind as that sold herein; that no effort was made to run the car after it was put in the garage on the day of its arrival; and payment on check was immediately stopped.

The following facts are disputed:

Defendant’s son-in-law, Bayard, testifies that he drove the car to defendant’s place, stopping for water (as the radiator was boiling), and for gasoline, although there was a decided knock in the motor; that defendant listened to the car when it arrived and said it wás f^r from satisfactory; that later in the afternoon he telephoned Schaff, who said he would come and take the car away, if it was unsatisfactory.

Messmer, the defendant, testified that he knew that the body of the car was in pretty bad shape; that he did not test the motor when he examined the car, because it was surrounded by other cars in the back of the garage and because Schaff had told him that the motor was in good condition; that the doors were all sprung and the glasses broken, but he could have repaired it if the motor had been in good condition; that no effort had been made to repair the radiator or the car and that he would not have bought it unless the motor had been represented by Schaff as in good condition, that he was in the business of repairing bodies, not motors.

Schaff testified that he had sold the automobile “as is,” explaining that the tires were new and the rear-end in good order; that he had never stated that the motor was in good condition and that it left the place hitting on all six cylinders; that Messmer, who was in the automobile repair business, and also running an oil station, had bought the old Studebaker because he owned a similar car and wished to get extra [parts off of this car; that he had never agreed or promised to take the car back, as he had no authority to make any such agreement; that Messmer had examined the car thoroughly before he bought it; that he never guaranteed a used car selling for less than $500, and that no other dealer would.

The plaintiff corroborates Schaff in all essential particulars. The fact that the car did run from - plaintiff’s place of business to defendant’s shows that the motor was not entirely worn out, and defendant’s case would be much stronger had he made some effort either to use the car again or to repair it.

In the case of United Motor Car Co. vs. Drumm, 3 La. App. 741, where a similar defense was made in a suit for an unpaid balance on a second-hand automobile, this Court, in the course of its reasons affirming a judgment for plaintiff, said: •

“It has been proven that it required considerable mechanical attention to keep it going, but a five-year-old second-hand automobile usually does. As -was well said by the learned judge a quo: ‘The fact that it is second-hand and has been used for several years carries with it the implication, like an old ' man 75 or 80 years of age, that the machinery is worn out and that the party buying it agrees to take a practically defective machine in order to get it for a very small price.’ ”

That language is particularly applicable here, and we agree with the trial court in its conclusion that the defendant has failed to sustain his defense of fraud, which is never presumed and always requires strong, clear proof.

For above reasons the judgment is affirmed.


text:
    No. 11,655
    Orleans
    GOSSERAND v. CITY OF GRETNA CITY OF GRETNA v. GOSSERAND
    (October 29, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    (January 29, 1929. Decree Supreme Court Writ of Certiorari and Review Refused.)

      Louis H. Gosserand, of New Orleans, attorney for plaintiff, appellee.
    Andrew H. Thalheim, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, former city attorney for the City of Gretna, claims of that municipality $300.00 as unpaid salary and $517.00 additional as a balance due for unpaid fees for services rendered under an alleged contract. The material allegations of his petition follow:

1. That he was duly employed at a salary of $50.00 per month by the Mayor and Board of Aldermen of the City of Gretna to act as City Attorney for the term beginning July 31, 1923, and ending August 31, 1925.

2. That he was further employed by resolution of the Mayor and Board of Aldermen to collect certain rpaving claims, to be paid a commission of 3 per cent, which was to cover all expenses incurred by him in collections.

3. That there was due him for work done in compliance with this resolution the sum of $692.00.

4. That he was also employed to sue certain delinquent debtors on past due paving claims and for services rendered therein he was to receive 10 per cent on (principal and interest accruing on said claim.

5. That he sued fifteen named debtors with result that the sum of $11,,092.58 was either collected or reduced to judgment, and that under the law of Louisiana he is entitled to 10 per cent of said amount. One of these fifteen debtors was the Police Jury of Jefferson Parish, which was made defendant in seven different suits in which the claims, without interest or attorney’s fees, amounted to $6,561.85.

6. That the City of Gretna had collected as a result of these suits all its claims except those against the Police Jury of Jefferson Parish, which were placed in other hands for collection after the claims had been reduced to judgment by him.

7. That petitioner had expended the sum of $869.50 for the payment of clerks and stenographers and the rent of an office 'in collecting these claims.

8. That two voucher checks had been issued to him — one for $100.00 and one for $200.00, in payment of his monthly salary for the months of February, March, April, ’May, June and July, 1925, but payment on said checks had been refused by the City of Gretna.

’ 9. That he had been paid by defendant $295.00 for expenses a,nd that he had reserved for himself the sum of $1,378.16 out of amounts collected as a result of above described suits, leaving the balance due stated above.

The itemized account attached to his petition reads as follows:

“Debits.
6 months’ salary as city attorney, at $50 ______________________________ $300.00
3 per cent commission on $23,068 ■ of paving assessments collected 692.04
10 (per cent commission on $11,-092.58 of paving assessments sue! on and collected or reduced to judgments -------------------- 1,109.25
Disbursements for costs and expenses of litigation ______________________ 869.50
$2,970.79
Credits.
Costs refunded by assessment debtors _______________________-................-.....-......... $480.00
Amounts collected from property owners .................................................. 1,378.16
Amount advanced by city for expenses ____________________________________________________ 295.00
2,153.16
Balance ____________________________________________________ $817.63

In a supplemental petition petitioner averred that he had secured judgments against the Police Jury of the Parish of Jefferson amounting with intérest and 10 per cent attorney’s fees to $7,669.71, on which there was due him an attorney’s fee of 10 per cent; that the above amount had been paid over to the Jefferson Parish School Board by the Police Jury for two squares of ground in the Third Ward, Gretna, and that under the law he was entitled to a lien and privilege on said judgment and he therefore rprayed 'that a writ of provisional seizure issue therein, commanding the Sheriff to seize $766.97 in the hands of the Jefferson Parish School Board, and that after trial there be judgment in his favor with recognition of his privilege on said amount.

The City of Gretna filed several exceptions to these petitions, all of which were properly overruled. It then answered denying the indebtedness, denying the employment, and specially pleading the following defenses:

1. That the resolution of the City Council employing the plaintiff was ultra vires because the meeting at which said resolution was adopted was a special meeting, and no notice thereof had been given stating the subject matter to be considered and no service and return had been made by the marshal as required by Act 89 of 1921.

2. Said resolution was further' ultra vires because under Section 4 of Act 131 pf 1904, which is the law covering cost of sidewalk, curbing, etc., all costs and expenses should be ¡paid by the owner of the real estate adjoining said paving.

3. Said resolution is null because it violates Section 15 of Act 136 of 1898, as amended by Act 189 of 1920, in that an ordinance is required to take care of the subject matter in question; and also because Section 33 of Act 136 of 1898 requires ordinances to be in a particular form, which is not applicable to a resolution.

4. Said resolution is violative of Section 2448, R. S., which forbides police juries and municipal councils of the State from contracting any debt or liability without fully providing in the ordinance crerating the debt the means of paying the principal and interest of the debt so contracted.

It then set up a reconventional demand for the $225.00 already paid plaintiff. Later ,the City filed a second reconventional demand for the further sum of $1,378.16, which Gosserand had also received.

, On objection of plaintiff the Court rejected the reconventional demand for the latter item. Thereafter the City brought suit against Gosserand for the amount of $1.378.16, which he had collected for account of the City. The suits, having been consolidated, were tried together, and (plaintiff secured judgment for the amount claimed, with recognition of his privilege upon $766.97 which had been seized in the hands of the Civil Sheriff.

We will first consider these special defenses in the order given.

The record shows that Gretna was incorporated under Act 136 of 1898, and that Section 15 of that Act enumerates the various powers of municipalities created thereunder. Among these powers is the following:

“* * * To exercise full jurisdiction in the matter of streets, sidewalks, sewers and parks; to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same.”

Section 23 of this Act provides:

“Be it further enacted, etc., That at the first regular meeting of the mayor and board of aldermen succeeding each regular municipal election, they shall elect a clerk, and, in cities, a tax collector. Such officers shall execute bond to the municipality. In such penalty, with such sureties and conditioned as may be prescribed by ordinance and shall hold their offices for two years and until their successors shall be elected and qualified. The Board may annually appoint an attorney at law for the municipality, prescribe his duties and fix his compensation, or it may employ counsel to represent the interest of the municipality, should occasion require.”

Under these provisions the Mayor and Board of Aldermen clearly had the power to employ the City Attorney to collect unpaid paving claims.

On page 60 of Volume 1 of the transcript we find a copy of the minutes of the SPECIAL meeting of the Mayor and Board of Aldermen of the City of Gretna, September 25, 1923. This document begins as follows:

“Pursuant to call the Mayor and Board of Aldermen met this day for the purpose of adopting Ordinance No. 234, and accepting Gov. Hall St. paving with the following members present:
“Mayor Viering, Aid. Higgins, White, Braun & McCune.
“Absent: Aid. Schurb * * * ”

These minutes then show that various ordinances were passed empowering the Mayor to borrow money immediately, that various paving ordinances, after being read and considered by sections were adopted; that the ordinance providing for the paving of Governor Hall Street was read and accepted; that the City Engineer was duly authorized to make a survey of all unpaved streets, and to prepare specifications and plans for paving same. At the bottom of page 62' is found the following:

“Resolution by Aid. Higgins, seconded by Aid. Braun.
“Be it resolved by the Mayor and Board of Aldermen of the City of Gretna, that Mr. L. H. Gosserand, City Attorney, be authorized to continue the collection of assessments for paving uncollected by the previous administration, and,
“Be it further resolved that the three per cent, costs for said collection shall be assumed by the Mayor and Board of Aldermen as an obligation of the City of Gretna and shall be paid to the said City Attorney.
^
“The above was adopted by the following vote:
“Yeas: White, McCune, Higgins & Braun.
“Absent: Schurb.”

Act 89 of 1921 provides that when the Mayor or any other of the Board of Aider-men calls a special meeting for the transaction of important business, the notice, stating the time of the meeting and distinctly specifying the subject matters of the business to be acted upon, must be signed by the officer calling the meeting, and must be served by the marshal on all of the members who have not signed it and who can be found personally; and that said notice, with the endorsement of its service, shall be entered on the minutes of the special meeting, and business not specified therein shall not be transacted at the meeting.

This document, which is signed by the Secretary and by the Mayor, and certified by J. E. Hotard, clerk, to be a true copy, does not show that the notice of the special meeting with service thereon was duly given.

It is thus seen that there was an irregularity or informality in the resolution ■employing plaintiff in that the call for the special meeting did not mention the subject of plaintiff’s employment and the service of this call was not shown as required. It will be noted that Act 89 of 1921 does not penalize all proceedings with nullity for such failure and we cannot decree such a penalty where the act of the municipality was clearly within its specified powers, and one clearly contemplated by the charter. This is especially true as the municipality later recognized the employment by paying a part of the cost incurred by plaintiff, and by accepting and using the money collected by his efforts.

The authorities on this point quoted by defendant are not in point, as they deal with cases in which the municipality had no power to contract. Necessarily, the contract being void abinitio, could not be vitalized later by any confirmatory acts.

• Here, the resolution was at most voidable, and it might perhaps have been set aside before the work was done and its benefits accepted. But it would be grossly inequitable to give the defendant all the advantages and hold them harmless as to all responsibilities.

The decision in Mentz vs. Village of Mamou, 165 La. 1070, 116 So. 561, mainly relied on by defendant, is not applicable because the greater part of the work covered by the' contract there had not been done and the Court found the contract ultra vires because the town had no power to make it. Although the amount claimed as damages for breach of this void contract was $2,350.00, the Court found that plaintiff had only drawn plans for which the price was fixed in the resolution at $150.00 and all the remainder of the work was done by another engineer. The Court thereupon distinctly recognized the right of plaintiff to sue on a quantum meruit for such services as he had actually rendered.

The doctrine controlling here is found in the following cases:

Hitchcock vs. Galveston, 96 U. S. 341, L. Ed. 659:

"The present is not a case in which the issue of the bonds was ¡prohibited by any statute. At most, the_ issue was unauthorized. At most, there was a defect of power. The promise to give bonds to the plaintiffs in payment of what they undertook to do was therefore, at farthest, only ultra vires; and, in such a case, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corportion can be held liable on its contract. Having received benefit at the expense of the other contracting party, it cannot object that it was not empowered to perform what it (promised in return, in the mode in which it promised to perform. They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the City Council have power to enter into a ■ contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work as well as to assume liabilities; that the City has received and now enjoys the benefit of what they have done and furnished; that for these THINGS THE CITY HAS PROMISEE TO PAY; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payment cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force so far as it is lawful.”

Marion Water Co. vs. Marion, 121 Ia. 306, 96 N. W. 883:

“Where the illegality does not involve any want of power to contract, but is merely a defect in the execution of the contract resulting from inattention on the part of the City Council to the form or procedure prescribed by law and the contract has been fully performed according to its terms by the other party, the City cannot avail itself of the illegality to defeat its liability.” *

Drainage Commissioners vs. Lewis, 101 Ill. App. 150; Neosha City Water Co. vs. Neosha, 136 Mo. 498, 38 S. W. 89; Lincoln Land Co. vs. Grant, 57 Neb. 70, 77 N. W. 349:

“A corporation cannot retain the fruits of a contract and escape liability thereunder, if it is only attacked for irregularity in the making and not for lack of power.”

Chicago vs. Norton Milling Co., 196 Ill. 580, 63 N. E. 1043:

“Where a contract entered into by a municipal corporation is within its power and apparently advantageous to the cor-portion, it will be estopped from challenging it, although it was invalid from its inception, if it has received the benefit of it.”

In Bruning vs. The City of New Orleans, 122 La. 316, 47 So. 624, the Supreme Court held that the contractor could collect from the City the cost of paving, although the abutting owners had been held harmless, because of the failure by the City to give them notice as directed by city ordinance. The basis of this decision is that the City had full authority to make the contract and the contractor was not liable for the City’s failure to protect its rights against the property owners.

In Moylan vs. City of New Orleans, 32 La. Ann. 673, plaintiff, a paving contractor, lost a similar suit because the city at that time had no authority to make the contract. On this point see Grasser Company vs. The City of New Orleans, No. 9971, Court of Appeals, Parish of Orleans, 118 So. 841. See also McQuillin’s Municipal Corporations, second edition, volume 3, section 1358, paragraph 2:

“In other words, a municipal contract which is not void but merely voidable, may be ratified, and the municipality, by its conduct, may be estopped to deny the validity thereof. Voidable contracts which may be ratified, or as to which an estoppel may exist, include thos.e defectively executed in some particular, and those made by some officer or body or board which had ño authority to act because the power to make the contract resided in some other officer or because the authority to act had not been duly conferred on such body or officer by ordinance or otherwise. Thus, where an officer having power to enter into a. contract if authorized by the proper municipal body, makes a contract without such authority, such body may ratify the contract. So a municipal corporation may ratify a contract not in itself unlawful, made by an agent acting both for it and the other party. So where a committee has power to contract in behalf of the town and a minority so contract, such contract may be ratified'1 and validated by a majority of such committee.”

Ruling Case Law, Section 352:

“The plea of ultra vires should not prevail when it would not advance justice, but would on the contrary accomplish a legal wrong.
“When, however, a contract is invalid merely because of a defective execution of the power granted, and there has been no violation of an express prohibition of statute, or of a rule of public policy established for the protection of the taxpayers, if it has been carried out in good faith by the other iparty thereto the municipality will be held liable thereon or at least bound to pay for the benefits received thereunder. The principle of estoppel may, it has been held, apply so as to hold a municipal corporation liable even when the contract is invalid because of the unconstitutionality of the statute under which it was executed, if it was not beyond the general powers of the municipality, or expressly forbidden by law.”

Section 360:

“So it is competent for a municipal corporation to ratify a contract and thereby ma"ke it a binding obligation, acting through its authorized agencies and in the manner prescribed by law for making contracts of such a character, if the contract was within its general corporate powers hut was invalid because defectively or irregularly executed, or because the officer or agent who purported to execute it on behalf of the municipality had not the requisite authority.”

There is no merit in the second special defense. The fact that Section 4 of Act 131 of 1904 provides that the total cost of paving shall be paid by the adjoining owners, does, not prohibit the City of Gretna from paying an attorney to collect unpaid paving claims. In fapt, Section 7 of this Act provides that the City shall have power to proceed by suits against the assessed property holders to collect unpaid pavfng bills, together with 10 per cent of the amount of the judgment as attorney’s fees. Two of the volumes of the transcript brought up in this case are filled with records of the suits against delinquent paving debtors and in all the petitions a 10 per cent attorney’s fee is prayed for. Furthermore, all the judgments secured allow the amount prayed for as attorney’s fees.

There is, likewise, no merit in the third special defense. While Section 15 of Act I 136 of 1898, as amended by Act 189 of 1920, states that a municipality has the power to enact ordinances for various enumerated purposes, the employment of an attorney to collect unpaid paving claims is not therein specified. Moreover, the fact that Section 33 of Act 136 of 1898 requires ordinances to be written in a certain fixed form, has no application here because this contract was evidenced by a resolution of the Council and not by an ordinance; and we know of no law forbidding the use of a resolution in such a case as this and we have been referred to none by counsel for appellant.

Special defense No. 4 is invalid even if no special provision was made in the resolution for the payment of the 3 per cent fee as required by Section 2448 R. S. because the evidence shows that the defendant paid many other such claims out of its surplus funds. On this point we quote approvingly from the opinion of the trial Judge:

“We learn from the testimony adduced at the trial that it has been the custom of the past administration, and of the present administration, to expend money as the exigencies of the occasion arose, to create expenses and to meet those expenses whenever an occasion arose, which made the expenditure necessary.
“This particular case is no exception to the rule and it is in strict conformity to the modus operandi of the present administration. As a matter of fact, it was testified to by the Chairman of the Finance Committee that they had paid thousands of dollars of the obligations of a previous administration (see testimony of Henry F. Bender, Chairman of Finance Committee, pp. 19 and 20) and the PARTICULAR OBLIGATION OF THE CITY OF GRETNA TO THIS 'PLAINTIFF SEEMS TO HAVE BEEN AN EXCEPTION TO THE RULE, YET NO GOOD REASON HAD OR HAS BEEN ADVANCED FOR THE CITY OF GRETNA’S ACTION IN THE INSTANT CASE, ESPECIALLY THAT IT ADMITS ABUNDANT EXCESS REVENUES.”

The general defense or general denial of defendant’s indebtedness is not sustained by the record. We concur with the trial Judge in all his findings of fact as to the unpaid salary and as to expenditures and services of plaintiff. We do not think it material whether all the claims were reduced to judgment by plaintiff or not. Plaintiff swore and his testimony is uncontradicted that the payment of the claims with interest and 10 per cent attorney’s fees resulted from his efforts. We find in the record certified copies of seven assessment ordinances passed by defendant, and each of them provides that the property owner shall pay 10 per cent attorney's fees in case of suit on unpaid claims.

The fact that these suits were brought under these ordinances and that the City received the amounts, conclusively shows that the City recognized Gosserand as its attorney in all these matters. In fact, such recognition was never for one moment denied until he sought compensation. The fact that some of píese judgments, though obtained by plaintiff, were collected by others, does not invalidate the claim of the attorney who did the work.

Bright vs. Hewes, 18 La. Ann. 666:

“The City attorney who obtained the judgments is entitled to the five per cent on the amount collected on said judgments, and his successor in office has no authority to interfere and enjoin the Sheriff from paying the percentage to the Attorney who obtained the judgments.”

Hiestand vs. LaBatt, 11 La. Ann. 30:

“The attorney has earned his fee when he has prosecuted or defended a case to judgment; so that the Assistant City Attorney who obtains the judgment, is entitled to the commission, although the actual collection of the debt may be made by his successor.”

Commander vs. City of Carrollton, 15 La. Ann. 7:

“An attqrney-at-law is entitled to commissions on a judgment obtained by him, although he be superseded by an appointment of another attorney, and the amount of the judgment collected by his successor.”

Morel vs. City of New Orleans, 12 La. Ann. 485:

“An attorney-at-law is entitled to claim commissions upon judgments obtained through his agency as well as upon moneys actually collected on executions and accounted for to his clients, although he be superseded by the appointment of another attorney.”

We are of the opinion that suit No. 6312 wherein the City of Gretna claims $1,378.16 on the ground that Gosserand is holding this amount illegally, was properly dismissed;

Butchers Union vs. Crescent City Live Stock Landing & Slaughter House Co., 41 La. Ann. 355, 6 So. 508; Garley vs. City of New Orleans, 41 La. Ann. 75, 7 So. 659; Hereford & Wife vs. Leverich, Curator, 16 La. Ann. 397.

We cannot consider appellee’s motion to amend the judgment, as it was filed too late.

For above reasons the judgment is affirmed.


text:
    No. 10,964
    Orleans
    MARCOTTE v. MONTANA
    (November 26, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)

      Henry & Cooper, A. M. Soutlion, of New Orleans, attorneys for plaintiff, appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JONES, J.

In this suit Gustave J. Marcotte seeks to recover frdm defendant damages in the sum of $348.10 on account of his having been struck and knocked down by a Ford truck operated by the minor son of the defendant. The accident took place on October 26, 1925, about 8.30 in the morning, on the lower side of St. Philip Street in the block between Chartres and Decatur Streets.

The judgment of the Court below was in Jlavor of the plaintiff, for the sum of $198.10.

A devolutive and suspensive appeal was taken from this judgment by the defendant. The plaintiff has answered averring that he is entitled to recover in full for every item of damage alleged, and praying that the judgment in his favor be increased to the sum of $348.10, with costs in both courts.

A careful analysis of the' evidence convinces us that the decision of the trial Judge in favor of plaintiff is correct.

Defendant’s able attorney, in his brief, argues that the trial Judge should be reversed because five witnesses testified for defendant and only three for the plaintiff. We find that two of defendant’s witnesses, namely Impastato and Jake Cornelius, have testified in such a confusing manner that their testimony has little or no probative value.

The driver of the truck, Joseph Montana, minor son of the defendant, testifies he did not know how the accident happened and that he did not remember what he did to avoid the accident; that he did not see plaintiff until he was almost on him, although the evidence shows that the street was straight and that plaintiff walked around the rear end of the Ford car and was trying to open the door, when he was struck.

This Court, in the case of Hudson vs. Jackson Brewing Company, 4 La. App. 549, has held that the witnesses are weighed, not counted, apd that their testimony must be considered in the light of probability and harmony with all the surrounding circumstances. This doctrine has been confirmed so frequently that it is useless to cite further authority. Its eminently justifiable application here inevitably leads to a decision in favor of plaintiff on the question of defendant’s liability for negligence.

Plaintiff’s attorney argues that the judgment appealed from should be increased , by $150.00, for the nervous shock suffered by plaintiff. While we admit that such an item of damage has often been recognized by this Court, we do not find that the testimony in this case justifies any increase in the amount allowed.

For above reasons the judgment is af- , firmed.


text:
    No. 11,406
    Orleans
    LEON MARX & SONS v. LEICHNER
    (November 13, 1928. Opinion and Decree.)
    Montgomery and Montgomery, of New Orleans, attorneys for plaintiff, appellant.
    J. K. Bailey, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff, a New York partnership, sues for $214.75 as a balance due for merchandise sold and delivered to defendant. The (petition was filed on the 25th day of October, 1927, and personal service was made on defendant on October 26th.

On November 7th, plaintiff, having produced a certificate from the clerk of court to the effect that no answer had been filed, and having made proof of his claim, secured judgment for the amount, which judgment was signed on the same day.

Later on the same day, November 7th, defendant filed an answer, and on the next day, namely, November 8th, She filed a motion for a new trial on the following grounds:

“That an answer was filed in this cause on the date that judgment was entered; that no evidence was produced and that the default was confirmed on the same day that it was entered, contrary to law.”

On the same day the Court granted a new trial in the following words:

“Considering the above motion, etc., the Court grants a new trial herein, as judgment was not signed and prematurely rendered.”

Plaintiff then, on November 10th, filed a motion to rescind the order granting the new trial on the ground that he had not been given an opportunity of being heard, but this motion was refused on the ground that all parties were absent on the day that it was set for hearing.

The defendant, though admitting in her answer the sale and delivery of the goods, averred that they were not what she had ordered, and that the unsatisfactory merchandise had been returned to the plaintiff upon his promise to accept the same.

After trial on the merits judgment was rendered in favor of plaintiff in the sum of $31.50, with legal interest, and plaintiff has appealed to this Court.

In his oral argument and brief here, defendant urges two points: First, that the trial Judge had no right to grant the new 'trial; Second, that the evidence did not justify the judgment. We shall consider these points in the order named.

In the case of Anselmo vs. Pisciotta, No. 10,759, Court of Appeal, Orleans Parish, this Court held that Act 128 of 1921, the controlling law, did not deprive a party against whom a judgment had been rendered from applying for a new trial within the delay provided by law, even if the judgment had been signed before the expiration of that delay.

Admitting this, appellant contends that the new trial was not legally granted. He cites Articles 310, 314, 317, 548 and 557 of the Code of Practice and the following decisions of the Supreme Court:

Halsey vs. Comeau, Man’s Unreported Cases 310; State vs. The Judge of the First City Court, 46 La. Ann. 365, 14 So. 906; Cochrane vs. Miller, 10 La. Ann. 140; Winchester vs. Rightor, 12 La. Ann. 255; Small vs. Flink, 7 La. Ann. 352; Ellis vs. Lave, 4 La. Ann. 245; McRae vs. Purvis, Gladden & Co., 12 La. Ann. 85.

We have examined these authorities car fully, but they do not sustain the contention of defendant. On the contrary, the law places the granting of a new trial rests within the discretion of the trial judge..

State ex rel. Shreveport Cotton Oil Co. vs. Blackman, Judge, 110 La. 267, 34 So. 438:

“So far as granting the new trial was concerned, that might have been done, within the legal delays, by the Judge em proprio motu. He has, within such delays, such control of the judgment that, if satisfied of an error committed, he may, with or without a' formal motion for new trial having been filed by the party cast, direct the judgment he has rendered set aside and a new trial ordered.”

Gale vs. Kemper’s Heirs, 10 La. 209; State vs. Judge, 8 La. Ann. 93; Underwood vs. Lacapere, 10 La. Ann. 766; Culverhouse vs. Marx, 38 La. Ann. 688; Code Prac. Art. 547, Par. 3; State ex rel. Broussard vs. Judge, 51 La. Ann. 500, 25 So. 96.

The strongest case cited by defendant is Small vs. Flink, 7 La. Ann. 3522, where the Court said that a judgment by default will not be set aside by an answer to the merits when the defendant can show nothing in his favor but his own laches and their fatal consequence. That case came before the Supreme Court on an appeal from a decision refusing a new trial in a promissory note case, where the original judgment had been taken on the 30th of April, 1834, and the default had not been confirmed until the 6th of May, following, and where the motion for new trial was not filed until two days later. The Court, in confirming the judgment refusing the new trial, held that the Judge of the lower court had acted within his legal discretion.

In this case the situation is changed. Here the judge of the lower court has granted a motion for a new trial and the appellant contends that the decision of the Judge should be reversed. We think that the decision in this case is overruled by the decision quoted above in State ex rel. Shreveport Cotton Oil Co. vs. Blackman, Judge, 110 La. 267, 34 So. 438.

ON THE MERITS

Appellant urges that the agreement to take back the goods, even if made, was not binding, because it was without consideration. This argument is untenable, as the record shows that the parties had frequently done business together, and the hope of retaining the good will of his customer, and doing business with her in the future, was a sufficient consideration to sustain the promise to accept the return of the merchandise.

A careful examination of the testimony convinces us that the decision of the trial Judge on the merits is. correct. Only one witness, who was a partner in the firm, testified for the plaintiff, whereas the testimony of the defendant was corroborated by two other witnesses, one of whom had been an employee, of hers of some years, while the other had left the employ of the defendant.

For above reasons the judgment is affirmed.