text:
    No. 631
    First Circuit
    THIBODEAUX v. YOUNT LEE OIL CO.
    (June 9, 1930. Opinion and Decree.)
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellant.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for defendant, appellee.
   LeBLANC, J.

From a judgment in the lower court dismissing his claim for compensation under the Workmen’s Compensation Law (Act No. 20 of 1914, as amended), on an exception of no cause of action, the plaintiff has appealed.

His petition discloses in effect that he was employed by the defendant oil company which was doing some drilling and prospecting for oil in the Hackberry field in Cameron parish; that on March 30, 1929, at about 5 o’clock p. m., while walking to his home, which is situated approximately one mile from the place where he performed his work, on reaching a point about forty steps from his home, he stepped on a nail which protruded from a board in the grass in the pathway, and as a result of that accident his foot became infected and he suffered the injury for which he seeks to recover compensation.

Before the matter was submitted to the lower court on the exception the following admission was placed in the record:

“Plaintiff admits that immediately after he got off his work at five o’clock p. m. at the oil field he started directly for his home and took the nearest and usual route and the only practical way from his work to his home. That his home was situated approximately two hundred steps from the public highway and upon turning out of the public highway into a path leading to his house and upon reaching a point approximately twenty-five steps from his home he stepped on a nail in a board which was lying in the grass in or near the path, causing injuries set out in his petition.”

It is apparent that we are here confronted with the question of the employer’s liability for compensation to an employee wlio is injured while returning from his work, while he is off of the premises of the employer.

There are decisions in our Louisiana courts as well as in other jurisdictions which tend to create considerable confusion and require the drawing of fine distinctions in determining the question as to how far such injuries arise out of and in the course of the employment. To attempt to classify them all would be to undertake an almost insurmountable task, and one which would not, serve much purpose, as in the very early history of our own jurisprudence on the subject, our Supreme Court, in the case of Myers vs. La. Ry & Nav. Co., 140 La. 938, 74 So. 256, 258, remarked:

“However after vain attempts at formulating some verbal test for determining when the injury has or not arisen out of the employment, the courts have come to the conclusion that each case must be determined from its own facts; that the question cannot be solved by phrases.”

If any rule is to be extracted from the numerous cases we have examined on the particular point involved here, it is to the effect that, where the employee is injured in going to or from work while he is still on the employer’s premises, or is injured in a conveyance furnished by the employer to transport him to and from work, his claim is compensable; but, where the injury occurs while he is off of the premises of the employer, it is not.

In those cases coming under the first class of injuries stated under the rule, compensation is generally allowed on the theory that the employee who is injured while going to or from work while he is on the premises where he performs his services may be said to be engaged in the course of his employer’s trade or business within the meaning and intendment of the compensation statutes. A Louisiana decis’on which expresses this principle is found in the case of Prevost vs. Gheens Realty Co., 151 La. 508, 92 So. 38, 40, from which we quote the following:

“When an employee is going from his work to his lodging house, on the premises where he works, he is, within the meaning of paragraph 2 of section 1 of the Employers’ Liability Act, ‘performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation.’ See authorities cited in Myers v. Louisiana Railway & Navigation Co., 140 La. 938, 74 So. 256.”

In Baker vs. Texas Pipe Line Co., 5 La. App. 25, the Court of Appeal for the Second Circuit, deciding the case, said:

“The usual rule followed in Workmen’s Compensation cases appears to be that a man’s employment does not begin until he has reached the place where he is to work or the scene of his duty and does not continue after he has left the premises of his employer. Bradbury, Workmen’s Compensation, 3d Ed. 468. And it is ordinarily held that if an employee is injured on the premises of the employer in going to or from work he is entitled to compensation for such injury. Honnold, Workmen’s Compensation, paragraph 122. Bradbury, Workmen’s Compensation, 3d Ed. 473, and authorities cited.”

In cases dealing with the second class of injuries, that is, those received by the employee while he is aboard a conveyance furnished by the employer to transport him to and from work, compensation is usually granted on the theory that the transportation is part of the contract of employment or was contemplated as such, and naturally the injury is compensable within the terms of the statute. Illustrative of this class of cases is that of May vs. Louisiana Central Lumber Co., 6 La. App. 748, wherein the Court of Appeal, Second Circuit, says, at page 750:

“Where an employee, while riding to or from his work in a conveyance under the control of and furnished by the employer as an incident of the employment is injured, it is generally held that the injury arose in the course and out of the employment. (In re Donovan, 217 Mass. 76, 104 N. E. 431 (Ann. Cas. 1915C, 778); also Bass v Shreveport-Eldorado Pipe Line Co., 4 La. App. 109); and we assume that it will be conceded that where there is not an express agreement that the conveyance was so furnished the agreement may be implied from the action of the parties.”

With regard to those cases involving injuries to employees going to or returning from work while they are away from the employer’s premises and in which compensation was allowed, we find, on' examination, that generally the place where the accident occurred is in such close proximity to, or so connected with, the premises that, in principle, it may be considered as having happened on the actual premises of the employer, and consequently to have arisen in the course of the employment. Expressive of this principle is the case of Cudahy Packing Co. vs. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532, which has been cited as authority in several of our Louisiana cases, notably Le Blanc vs. Ohio Oil Co., 7 La. App. 721; Ward vs. Standard Lumber Co., 4 La. App. 89; Jones vs. Louisiana Central Lumber Co., 2 La. App. 260, and others.

The general rule, however, without regard to any distinctions having to be made, or fine points drawn, is to the effect that injuries resulting from accidents occurring away from the employer’s premises are not considered as having any causable connection with the employment and are not compensable. Besides, the dangers or risks from which such injuries arise are, as a rule, not incidental or peculiar to the nature of the employment, but are those that are common to the neighborhood, and, as such, they do not come under the protection of the Compensation Law.

• The following citation is taken from Ruling Case Law, Permanent Supplement, volume 8:

“As a general rule an injury suffered by an employee in going to or returning from the employer’s premises where the work of his employment is carried on does not arise out of his employment so as to entitle him to compensation under the Workmen’s Compensation Act. Morey v. Battle Creek, 299 (229) Mich. 650, 202 N. W. 925, 38 A. L. R. 1039; Nesbitt v. Twin City Forge, etc., Co., 145 Minn. 286, 177 N. W. 131, 10 A. L. R. 165; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Cudahy Packing Co. v. Industrial Commission, 60 Utah, 161, 207 P. 148, 28 A. L. R. 1394.”

In annotating a Michigan case, Guastelo vs. Michigan Cent. R. Co., 194 Mich. 382, 160 N. W. 484, L. R. A. 1917D, 69, Negligence and Compensation Cases Annotated, vol. 15, at page 241, refers to what is “a well settled general rule that injuries sustained by an employee while going to or returning from his day’s work, where there is no contract of transportation, are not to be regarded' as arising out of or received in the course of his employment.”

In the same work, vol. 12, at page 372, in an annotation of another case, Zbinden vs. Union Oil Co. of California, 2 Cal. Ind. Acc. Comm. 590, we read:

“As stated by the commissioner at the time of the hearing, ‘it is a rule of very general application in all jurisdictions, and under all compensation laws, that the employee is under the protection of such compensation laws from the time that he has reached his employer’s premises in the morning until he leaves them at the close of his day’s work, but that his risks in going and coming are the risks of the commonalty, and not of the employment, and injuries sustained by accident while going and coming cannot be said to ‘arise out of the employment’ which they must do in order to be compensable under the Workmen’s Compensation, Insurance and Safety Act.’ ”

In the case before us, the admitted stale ment shows that the plaintiff necessarily had left his work many minutes before, as he had walked the greater part of a mile when he reached the place where he received the injury. He had left the public road over which he had walked and had entered the path leading directly to his home. All relation between him and his employer had ceased at that time, and there could be no causable connection between the source of his injury and the character of his employment. The danger he was exposed to and which caused his injury was far removed from the nature of his work, and was one which he or any one of his family, neighbors, or friends were in peril of, irrespective of what errand took them through this path.

Such facts bring this case within the rule announced in the last authorities cited as well as the authorities of our own courts in the cases of Nugent vs. Lee Lumber Co., 4 La. App. 372; Wyatt vs. Alabama Petroleum Corp., 2 La. App. 499; Bass vs. Shreveport-Eldorado Pipe Line Co., 4 La. App. 107.

The judgment of the lower court sustaining the exception of no cause of action and dismissing plaintiff’s suit was correct, and it is therefore affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 645
    First Circuit
    DEVANT v. PECOU (ORANGE MOTOR CO., Intervener)
    (June 9, 1930. Opinion and Decree.)

      Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellee.
    T. Arthur Edwards, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff, a resident of Tennessee, brought this suit against defendant of Orange, Tex., also a non-resident. His demand was for damages to his auto, caused, as he alleges, by a collision with defendant’s car. He obtained a writ of attachment under which defendant’s car was seized, and upon whom personal service of citation was made.

The defendant filed a motion to dissolve the attachment, claimed damages for the dissolution, and filed his answer to (plaintiff’s demand. The service of citation vested the court with jurisdiction. Pugh vs. Flannery, 151 La. 1063, 92 So. 699; also, the appearance of defendant for the dissolution of the writ, with a claim for damages, and his answer to the demand. There is, therefore, no merit in the contention of the Orange Motor Company, intervener in the case, that the court had no jurisdiction because of the failure to have the writ of attachment posted or affixed on the door of the court in which trial was had, or on a bulletin board near the entrance of the courtroom as provided for in article 254, Code Prac., and Act No. 9, 1926. Besides, defendant has not appealed, is not making these defenses which were personal to him, and cannot be urged by intervener, who is limited to the assertion of its own rights. Cahn vs. Ford, 42 La. Ann. 965, 8 So. 477; Gilkeson Sloss Commission Co. vs. Bond, 44 La. Ann. 841, 11 So. 220.

The intervener, Orange Motor Company, claims a lien on the auto seized by plaintiff under a chattel mortgage executed in Texas by defendant in its favor.

The mortgage claimed by intervener was not filed for record and was not recorded in the parish of Calcasieu or in any other parish of this state when the attachment was levied. There was therefore no lien on the auto when it was seized. Act No. 198 of 1918; Wilson vs. Lowrie (Oil City Iron Works, Intervener), 156 La. 1062, 101 So. 549.

Intervener had its mortgage recorded after the seizure. This was too late to affect the plaintiff, as the privilege which resulted from the attachment related back to the seizure. Tufts vs. Carradine, 3 La. Ann. 430; Cochrane vs. Walker, 10 La. Ann. 431.

In Delop vs. Windsor (Kennedy & Co., intervener), 26 La. Ann. 185, a lien was claimed on a chattel mortgage on movables accorded in Mississippi, where the contract had been executed. At that time a chattel mortgage was unknown to our laws. The court held the lien was not enforceable here, where such mortgages were not recognized and said:

“This court is not bound by the comity of nations to enforce a contract, which, if made here, could not defeat the rights acquired by attachment under our own laws.”

It is true that chattel mortgages are legal now in this state, but as hereinabove stated, give a lien, as to third parties, only from the date of registry. As the lien growing out of the attachment had accrued when the mortgage of the intervener was recorded, it could not, as between residents of this state, have affected the rights of plaintiff, attaching creditor. Such being the case we could not, under the doctrine of comity, grant to plaintiff, a resident of Texas, a superior right over the thing seized, which would not be allowable to residents of this state, and litigants in our courts.

It is shown that Texas will not, by notice of the rule of comity, recognize the lien resulting from a recorded mortgage, in favor of a resident of any other state, including Louisiana. C. J. vol. 11, sec. 426; 57 A. L. R. 696, note attached to the opinion therein rendered. This rule not being recognized in Texas, we do not see why it should be extended to a resident of that state against a litigant in our courts, although' he be also a non-resident.

Besides, this matter of comity or courtesy rests, at most, on a moral duty, creates only an imperfect obligation, like that of beneficence, humanity, and "charity. Story, Conflicting Laws, p. 41. It could not possibly create a legal tie, unless it is recognized in the state where its enforcement is sought. There being no such recognition here that we are aware of, the intervener has no lien on the property seized, the proceeds of which were properly assigned by preference to plaintiff, attaching creditor.


author: HIGGINS, J.

text:
    No. 11,821
    Orleans
    MATTHEWS-PELTON, INC., v. LEBLANC ET AL.
    (February 17, 1930. Opinion and Decree.)
    (May 19, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Anna W. Matthews, John A. Smith, Jr., and Richard B. Montgomery, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Sanders, Baldwin, Viosea & Haspel, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff, a corporation engaged in business as a real estate broker, sued Henry L. LeBlane, defendant, and in the alternative J. T. Prowell, defendant, to recover the sum of $1,200, commission alleged to have been earned for the consummation of a written contract on August 5, 1927, whereby LeBlane agreed to sell, and Prowell agreed to buy, certain real estate owned by LeBlane. Defendant LeBlane filed an exception of no cause of action, which was sustained by the lower court, on the ground that the petition alleges that Prowell, in violation of his agreement, refused to take title, and therefore LeBlanc, as owner, was not liable to pay plaintiff’s commission as real estate broker, having produced a buyer who was unwilling to carry out his agreement by taking title to the property.

The defendant Prowell filed exceptions of misjoinder, and non-joinder of parties defendant, and an exception of no cause of action, which were overruled. Prowell then filed an answer denying liability and specially pleading that the contract was not binding upon him, and in the alternative that plaintiff at no time agreed to comply with the agreement and tender title; and that Prowell had no agreement or dealings with said LeBlane; that plaintiff represented the property as being free from all liens and incumbrances, when, as a matter of fact, the property was covered with incumbrances; and that plaintiff acted as the agent for both buyer and seller, and sought to collect a commission from both parties which rendered the agreement null and void.

On the trial on the merits, there was judgment in favor of plaintiff in the sum of $1,200, being 4 per cent commission on the contract price of $30,000 and an attorney’s fee of $240. From this judgment Prowell has appealed. Plaintiff has appealed from the judgment sustaining the exception of no cause of action and dismissing the suit as to the defendant LeBlanc.

Able counsel representing both sides filed exhaustive briefs with the district judge on the issue raised by the pleadings, but in this court Prowell has urged and submitted authorities on two points: First, that Prowell dealt only with one George D. Baker, who was in the employment of the plaintiff, and that, as Baker was not a licensed real estate salesman at the time, the alleged commission cannot be recovered, as section 19 of Act 236 of 1920 specifically forbids such recovery; and second, that under the written contract between LeBlane and Prowell, upon which plaintiff has entered suit, the right of action is in favor of LeBlanc as vendor to recover any commission lie might have been required to pay in the event Prowell, as purchaser, refused to carry out his obligation, and that this right of action is not vested directly in plaintiff as the real estate broker.

We shall dispose of these points in the above order.

The record shows that Baker was not a licensed real estate agent on August 5, 1927, but obtained his license on August 8, 1927. Baker was in the employment of the plaintiff, and had entered into a verbal agreement with John Matthews, secretary and treasurer of plaintiff corporation to divide the commission, whereby Baker was to get 1 per cent, or $300. The offer of Prowell is signed upon plaintiff’s stationery, but was secured by Baker. Plaintiff secured LeBlanc’s acceptance of Prowell’s offer. LeBlane’s authorization to sell the property is signed upon plaintiff’s stationery, and was secured by plaintiff. The note given by Prowell for $3,000 as a deposit was made to the order of plaintiff, and remained in its possession during the entire time. It further appears that Prowell wrote plaintiff three letters concerning the transaction on August 6, August 27, and November 23, 1927, respectively.

Does the fact that Baker was not a real estate salesman and assisted in the consummation of the contract of sale affect plaintiff’s right to recover from the defendant Pro well its commission?

This court has passed upon this identical question before. In the case of Bosetta vs. Jacobs, 1 La. App. 277, the court said:

“A verbal contract by which ‘A’, (the defendant) a licensed real estate broker, agrees with ‘B’ (the plaintiff) — not such a broker — that he will share part of his commission with ‘B’, if the latter secures for *A’ a purchaser of property listed by ‘A’, is not a contract prohibited by Act 236 of 1920. Such a contract will be enforced, where ‘B’s’ services are shown to have been successfully rendered.”

In the case of Lowewngaratt vs. Freeland, No. 11062, 11 La. App. 582, 123 So. 340, of the docket of this court, decided June, 1929, this court said:

“The agreement of real estate agent to divide commission with one if he introduces a purchaser is enforceable, though the party introducing customer is not a licensed broker, and this none the less because he goes further and assists in the consummation of the sale.”

In the present case it appears that plaintiff, a real estate broker, properly licensed, secured authority from the owner to sell the property, and was assisted in procuring an offer to purchase the property from Prowell by Baker, who, at that time, was not a licensed real estate salesman. Plaintiff then had the offer from Prowell accepted by LeBlanc, the owner, and the contract was then complete. Can it be said that plaintiff is not entitled to recover its commission because Baker had not qualified in accordance with Act No. 236 of 1920? We think not, and are of the opinion that the decisions cited, supra, are controlling.

Counsel for the defendant has directed our attention to Connelly vs. Richmond, 8 La. App. 411, which holds that a plaintiff suing to recover commission on an alleged real estate contract must be a bonded and licensed broker in accordance with Act No. 236 of 1920. However, that decision is not applicable here because plaintiff is such a broker and has properly qualified.

We will next consider the second point. The written offer, signed by Prowell, which was accepted by LeBlanc through plaintiff, reads as follows:

“Should I fail to comply with the terms of this offer, if accepted, I obligate myself to pay the commission and all fees and costs incurred in enforcing collection.”

The acceptance of LeBlanc is as follows:

“I accept the above offer, also terms and conditions, and agree to pay your commission of 4% on the amount of the purchase price.”

In the case of Brugier vs. Ritchie, 7 La. App. 179, this court said:

“We have not been favored with a brief in behalf of plaintiff and appellee. But the jurisprudence consecrates the following principle: A broker who is employed to buy certain property is entitled to a commission when he has obtained the consent of the owner to sell and the sale takes place; and even if the sale does not take place owing to the'fault of the prospective purchaser, he owes the commission when by the agreement of sale he had bound himself to pay the broker a commission if he failed to comply with the agreement. No. 7848, Orl. App.; McWilliams vs. Stackhouse, 1 La. App. 253; Palmisano vs. Stewart, 3 La. App. 66; Dauterive vs. West India Transportation Corp., 3 La. App. 319; Prince vs. Mrs. St. Aurin, 5 La. App. 567; Stoer vs. Pearson, 5 La. App. 609.”

In the case of Wise-Miller vs. Catalanotto, 8 La. App. 186, this court said that a defendant, as a prospective purchaser, was bound to pay the broker commission when he was the cause of the sale not being completed under the following contract:

“I offer to buy the property for $9,000 * * *; should I fail to comply with the terms of this offer, if accepted, I obligate myself to pay the commission and all fees and costs incurred in enforcing collection. This offer to remain good and irrevocable through Nov. 10th, 1923.
“(Signed) Anthony Catalanotto.”

To which Riecke answered:

“I accept the above offer and agree to pay you 3% commission on purchase price.
“Nov. 10/23 — 1 P. M.
“(Signed) Riecke.”

This case appears to us to be in point on this issue, and is supported by the decisions cited supra.

We will now inquire whether or not defendant Prowell was at fault in refusing to consummate the sale.

The record shows that Prowell refused to take title on September 9, 1927, although no formal tender was made. However, on November 21, 1927, plaintiff notified defendant Prowell by registered mail as to the time and place that' the sale would take place before the notary public. The return receipt is in the record, showing acknowledgment of delivery of the letter on November 23, 1927. On the same day Prowell wrote plaintiff as follows:

“November 23, 1927.
“Matthews-McArthur, Inc.,
822 Perdido St.,
New Orleans, La.
“Gentlemen:' — This acknowledges receipt of yours of the 21st instant inclosing a copy of a letter received by you from W. H. McClendon, Jr., wherein you are notified to be present on Saturday, November 26th, 1927, for the purpose of passing sale from Mr. Henry L. LeBlanc to yourselves.
“In reply, I beg leave to state that I am not concerned in this transaction.
“In further answer, I beg leave to state that I have never given you authority to make any purchase of property in my behalf.
“Thanking you for your courtesy in this matter, I remain
“Yours very truly, J. T. Prowell.”

It is to be noted that defendant Prowell peremptorily refused to carry out bis contract on the ground that plaintiff had never been authorized by him to ’ purchase the property in his behalf. The record shows that Prowell’s written offer to purchase the property was duly and legally accepted by LeBlanc, the owner of the property within the time specified in the offer, and therefore the contract to sell was complete.

This case was thoroughly contested by able counsel who represented Prowell, who has had a full opportunity to prove that he was without fault in refusing to comply with his agreement to consummate the sale, and he has failed to do so.

The judge, a quo. allowed the sum of $240, as attorney’s fees under the above-quoted provision whereby Prowell obligated himself to pay “all fees and costs incurred in enforcing collection” of the commission. The record shows that the issues involved here were not complicated. The testimony was short, and it did not require very much time to try the case. We believe that 10 per cent of the amount sued for, or $120, would be a reasonable fee under the circumstances.

We are therefore-of the opinion that the judgment of the trial court in dismissing plaintiff’s suit as to LeBlanc on the exception of no cause of action was correct, and that the judgment on the merits against the defendant Prowell in favor of plaintiff should be amended so as to reduce the attorney’s fee to $120.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be and it is amended so as to reduce the amount allowed for attorney’s fees from $240 to $120 and, as thus amended, affirmed, at appellant’s cost.


author: JANVIER, J.

text:
    No. 13,142
    Orleans
    SUCCESSION OF COLEMAN
    (April 21, 1930. Opinion and Decree.)
    (May 9, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Paul W. Maloney, of New Orleans, attorney for G. B. Fargo, appellant.
    Edward A. Parson, of New Orleans, attorney for heirs, appellees.
   JANVIER, J.

Upon the death of Henrietta Coleman, widow of Morris Fargo, her succession was opened on the petition of Victoria Fargo Marmillion, Estelle Fargo Dillard, Harry U. Fargo and William O. Fargo, who allege themselves to be the only children and heirs of decedent. On that petition an ex parte order was rendered, sending the parties named into possession of the estate, particularly of a certain piece of realty.

Decedent left a will under which Victoria Fargo Marmillion was left the disposable portion of the estate and under which the remainder was divided among all the children, including Victoria, and the judgment of possession conformed to the provisions of the will, except that it did not include among those among whom the residue was distributed, the present plaintiff, Grace Bernadotte Fargo, who, in her petition, claims that she is the daughter of Louis Fargo, who, she alleges, was also a son of decedent, Henrietta Coleman Fargo. Grace Bernadotte Fargo therefore alleges that she should represent her said predeceased father in. the succession, and that she thus is entitled to be sent into possession of an undivided two-fifteenths of the estate.

Her claim is resisted by the four parties sent into possession under the ex parte judgment, who maintain that" petitioner’s father, Louis Fargo, was not a son of the deceased, Henrietta Coleman Fargo, but was an illegitimate son of Victoria Fargo and that, when the said Louis Fargo was born many years ago, he was left with his grandmother, the decedent, in Convent, La., so that the shame of the mother might not be 'discovered by her friends and neighbors in New Orleans.

Grace Bernadotte Fargo contends that the record does not sustain the defense that Louis Fargo was not the son of Henrietta, but that, even if it does contain sufficient proof to establish the fact that he was not her child, still the present defendants are now estopped to deny that he, Louis, was the son of Henrietta, because Henrietta on many occasions recognized him as her child, and because the present defendants, in the succession proceedings of their father, Morris Fargo, predeceased husband of Henrietta, did not dispute the right of the present plaintiff to a share in that estate.

The proof that Louis Fargo was not the child of the de cujus is abundant and we find in the record no evidence to the contrary, except the fact that, on several occasions in the past, the said de cujus treated him as her son, and except the fact that the present plaintiff, Grace Bernadotte Fargo, was allowed to share in the estate of Morris Fargo as the representative of her predeceased father, Louis.

So far as the actual truth as to paternity or maternity is concerned, there is not the slightest doubt that Louis was not the son of the de cujus. Unless, then, we are prepared to hold that the real heirs of Henrietta are now estopped to contest the claim of petitioner, it is manifest that her claim must fall.

It is quite true that on the death of Morris Fargo, husband of the present de cujus, the present petitioner, Grace Bernadotte Fargo, as the representative of her predeceased father, was sent into possession along with the real heirs. It is equally true that the present de cujus, Henrietta Coleman Fargo, bought from Grace her interest in Morris Fargo’s estate, and it is equally true that in the partition proceedings in that estate all parties dealt with Grace Bernadotte Fargo as an heir of Morris Fargo, by representation.

We cannot say, however, that they, having been in error in that instance, should now be estopped to contest her claim, as she has not been prejudiced by their error, nor has she been the loser as a result thereof. Rather, the contrary appears. They unquestionably could have prevented her sharing in the estate of Morris Fargo. Either they did not know that her father was not a child of Morris, or they did not care at that time to oppose her claim. In our opinion, it is immaterial what their reason was.

For a long time the jurisprudence of this state as to the effect of allegations made in judicial proceedings was in an unsettled condition. In some cases it was held that a position assumed in one proceeding created a complete estoppel and prevented the introduction later in another proceeding of evidence as to the true facts, without regard to whether or not the other party had been misled to his injury. Other decisions held that a judicial allegation merely created a presumption which might be overcome by a showing of the true facts, unless, by the first allegation, the other party had suffered injury or been misled to his detriment. We are no longer free to consider which of the two lines of reasoning is the more sound, because we believe that the matter has been definitely settled by the Supreme Court in Farley vs. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, 137 L. R. A. 1915A, 200 Ann. Cas. 1915C, 717, in which it was said:

“At common law the point has never been doubtful; the rule has always been that while admissions made in other suits are of course evidence, as being declarations against interest, and ‘therefore presumably true, they are no more conclusive, or estoppels, than admissions made out of courts.”

The court, after reviewing what appears to be all of the former jurisprudence, said:

“Our conclusion is that Weaver and Johnson, the warrantors, are not concluded by the allegations made in this former suit, which have in no way been acted on by plaintiffs, or in any way prejudiced them, and therefore do not give rise to any estoppel.”

If heirship could be created by estoppel, the laws of forced heirship might as well be abolished. We think that the district judge was correct when he said:

“The first thing that presents itself to my mind is whether or not the laws of inheritance of ■ Louisiana can be destroyed by estoppel. It seems to me they cannot. If such would be the case a man might have one son a forced heir and become intensely hostile and inimical to his son, as we have unfortunately so often seen it in life and if the principle contended by counsel for the plaintiff was sound, all the father would need to do in order to practically disinherit his son whom he did not like, but who was his forced heir for at least one-half of his estate, would be to go before a Notary Public and execute a solemn act, by which he would declare that twenty of his nephews and nieces whom he loved, were his legitimate children and on his death they could come in and claim with’ his real son and his property would be divided into twenty-one portions and the legitimate son, instead of getting one-half of the estate as he could be restricted to by the will would get a one-twenty-first part.”

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed.


author: WESTERFIELD, J.

text:
    No. 13,263
    Orleans
    MADISON LUMBER CO. v. ALSON
    (May 5, 1930. Opinion, and Decree.)
    (May 19, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Milner & Porteohs, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff entered into a contract with defendant for the installation of a new roof on a house owned by defendant and for the repair of the supporting rafters and timbers. Defendant reconvened, claiming the sum of $250 as damages to his house, alleged to have been sustained by reason of plaintiff’s failure to properly protect the interior of the house from the weather after1 the old roof had been removed and before the new one had been installed.

The trial court awarded judgment in plaintiff’s favor as prayed for, and dismissed defendant’s reconventional demand, reserving, however, defendant’s right to sue for the damages claimed under a separate action. Defendant has appealed.

In so far as the judgment on the main demand is concerned, we are convinced that the plaintiff properly repaired the supports for the roof and properly installed a roof of the kind and character which its contract called for; consequently the judgment in its favor in the sum of $120.76, the balance admittedly due, is correct.

Objection is made to the consideration of the reconventional demand upon the ground that, under the provisions of article 2209, C. C., a debt which is not equally liquidated and demandable, such as a claim for damages, is not compensable in an action for the recovery of a balance due under a contract. On this point article 375 of the Code of Practice is controlling. That article reads:

“In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, necessarily connected with and incidental to the same; as, for instance, the demand instituted by the possessor in good faith against him who sues in order to evict him or for the purpose of obtaining the payment of the improvements made on the premises.”

In a very able and interesting opinion rendered by Judge Rogers in the case of Peterson vs. Rabito, 164 La. 612, 114 So. 354, this article of the Code of Practice was discussed very thoroughly. In that case, though the reconventional demand was held not properly before the court, the reasons given when applied to the case before us cogently support its consideration here.

On the merits, the first question for our determination is whose duty it was to protect the interior of defendant’s home during the execution of the contract for the installation of the new roof, and on this point we find the evidence to be conflicting. However, we are of opinion that the plaintiff, which had removed the roof, is responsible for the resulting damage. There is, however, no satisfactory evidence in the record upon which a judgment might be based covering the amount of damage caused by plaintiff’s failure to protect the premises, and we have concluded to remand the cause to the lower court for further proof on this point.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from, in so far as it recognized plaintiff’s claim on the main demand, be affirmed, and, in so far as it rejects defendant’s demand in reconvention, it is reversed, and it is now ordered that this case be remanded to the First City Court for the parish of Orleans for further proceedings according to law and consistent with the views herein expressed.


author: WESTERFIELD, J. PER CURIAM.

text:
    No. 11,934
    Orleans
    COHN v. BROWN
    (May 5, 1930. Opinion and Decree.)
    (June 2, 1930. Decree Amended.)

      John E. Jackson and Baldwin J. Allen, | of New Orleans, attorneys for plaintiff, appellant.
    Frank T. Doyle and Harry M. Mayo, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is a suit wherein the plaintiff seeks to recover damages, which she fixes in the sum of $2,500, for physical injuries alleged to have been sustained as a result of a collision between the automobile belonging to and driven by her husband, in which she was a passenger, and the motortruck owned by the defendant Brown, and, at the time of the accident, parked in the roadway on South Broad street near Napoleon avenue.

The' accident occurred about 8 p. m. at a point where Napoleon avenue intersects' or merges into Broad street; the two streets do not form a right, but an obtuse, angle. The negligence of the defendant is predicated upon the allegation that his truck was parked between seven and eight feet from the right-hand curb, near the middle of the street, in violation of Section 1, subsection 3, of the Traffic Ordinance No. 7490 C. C. S., and in the further fact that it was within less than 28 feet of two intersecting boulevards, and therefore in contravention of subparagraph 5, section 1, of the traffic law, and in the further respect that no lights, head or rear, were burning at the time.

In determining the issue of fact adversely to plaintiff and dismissing her suit, the learned trial judge, after noting a conflict in the testimony, characterized plaintiff’s witnesses as being entirely sincere and honest, saying:

“I have no thought at all that there is anything in the case to give the impression that they are not all honest. However, in weighing the testimony I must consider the circumstances. The plaintiff’s witnesses observed the facts under stress of excitement. Frequently we do not see things just as they are. On the other hand, the facts to which defendant’s witnesses testified were facts observed by them pri- or to the accident, when there was no occasion for them to be excited.”

It thus appears that the witnesses for plaintiff were considered by our brother below to have been unconsciously influenced in their testimony by their emotions, and we are not prepared to say that he is mistaken in his conclusion in this respect as a general proposition, but, in so far as Dr. Waide, one of the witnesses for plaintiff, is concerned, who, at the time of the accident, happened to be driving behind the Cohn car and who did not know either the plaintiff, Mrs. Albert J. Cohn, or her husband, Dr. Cohn, he certainly cannot be considered to have been in a state of emotional excitement, and we find his testimony most impressive. After the accident he approached Dr. Cohn, presented his card, and expressed his condemnation of the manner in which the driver of the truck had parked it without a light on it, and tendered his card saying, “If you need my help, I will be glad to serve you.” This witness is quite positive that he saw no light on the truck, and that the truck was parked near the middle of the street. He estimates the distance at from four to five feet from the curbing and places the truck at about fifteen feet from the center of the intersection of the two streets, thus corroborating Dr. and Mrs. Cohn in this respect.

Under the provisions of the traffic ordinance referred to, the truck should not have been parked more than one foot from the curbing and not less than sixty feet from the intersection.

It appears that just before the accident one of the tires of the truck had collapsed and it had been stopped for the purpose of having the tire changed by a service man who had been telephoned for. There is a dispute in the record as to whether the service man had arrived before the accident or not, the service man himself saying that he was present a considerable time before the collision, and also that the truck was properly parked and the taillight burning, the collision having occurred from the rear. We are inclined to believe that he was mistaken in every particular. He seems to us to have confused the post accident events with happenings prior thereto and to have relied on routine practice instead of his memory in testifying that the tail-light was burning, because he always insisted upon having it lit before undertaking to repair tires. The answer avers that the truck was three feet distant from the curb, and while evidence to the contrary was admitted without objection and may be said to enlarge the pleadings, the averment in the answer is interesting as indicating the early appreciation of the question of fact by defendant. But there can be no doubt that the truck was too near the corner of Napoleon avenue, for the driver, himself, a negro by the name of Williams, gives the position of the truck as twenty-eight feet from the corner, and the service man, Varount, placed it at between twenty and thirty feet.

We are convinced that the truck was parked in a manner violative of the provisions of the traffic ordinance referred to, and that its illegal parking was the cause of the accident. In Roberts vs. Eason, 6 La. App. 703, it was said:

“Ordinances regulating the parking of vehicles in the public streets must be observed and if an injury results from their violation to one not at fault, he may recover damages from the owner of a truck parked in the public street in violation of a City Ordinance.”

In Tolliver vs. Checker Cab Company, 3 La. App. 278, this court said:

“It is the duty of courts to rigidly enforce the traffic ordinances in order to insure public safety. Those who violate them must pay damages caused by their violation.”

The plaintiff, the guest of her husband who was driving the car, cannot be charged with negligence. Vitale vs. Checker Cab Company, 7 La. App. 653.

Plaintiff’s injury was to her right arm and she no doubt suffered severe pain. Her doctor described her injury as “traumatic bursitis,” which, he explains, is an inflammation of the bursia, causing it to thicken and diminish its secretion. There was no fracture and the ulna was not involved. The doctor also described her1 injuries as severe contusions of the forearm. At the time the case was tried, something over three years after the accident, she still complained that her arm was not normal. We find from the record, however, that this same arm had been broken in another accident some time previous to the one we are now considering, and we are unable to say whether the first or the last injury to the arm caused the lasting effect of which she complained. In other words, whether the fracture or the traumatic bursitis had the most lasting effect. Plaintiff incurred a doctor’s bill of $75. Under the circumstances we believe an award of $500 to be proper.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be and it is reversed, and it is now ordered that there be judgment in favor of Mrs. Albert J. Cohn, plaintiff, and against Benjamin C. Brown, defendant, in the sum of $500, with legal interest from judicial demand until paid.

ON MOTION TO AMEND DECREE

PER CURIAM.

Our attention is called to the fact that in our decree in this case no provision is made awarding costs. Our decree will consequently be amended and plaintiff and appellant will be awarded the costs of both courts.


text:
    No. 13,192
    Orleans
    KRAUSS CO., LTD., v. GODCHAUX
    (June 2, 1930. Opinion and Decree.)
    N. Morgan Woods II, McGiehan, Straucli & Gardiner, of New Orleans, attorneys for plaintiff, appellant.
    Weiss, Yarrut & Stich, of New Orleans, attorneys for Mrs. Jane McManus Godchaux, defendant, appellee.
   HIGGINS, J.

This is a rule instituted by Krauss Company, Limited, to set aside an affidavit filed with the civil sheriff by Mrs. Jane McManus Godchaux; defendant in rule, and wife of Dr. Paul N. Godchaux, defendant in the main demand, claiming ownership of certain furniture and household effects which were seized under a writ of fieri facias under Krauss Company’s judgment against Dr. Godchaux. The purpose of the rule is to have the property declared to be owned by Dr. Godchaux, and, therefore, subject to seizure in favor of the judgment creditor. The property in question is claimed to belong to Mrs. Godchaux by virtue of an alleged authentic act of dation en paiment executed on May 17, 1929.

There was judgment in favor of defendant in rule, and plaintiff in rule, Krauss Company, Limited, has appealed.

The record shows that Krauss Company, Limited, obtained a judgment against Dr. Godchaux on June 19, 1923, for the sum of $395.51, balance due for certain household furniture sold and delivered by the plaintiff to the defendant. After various efforts to execute the judgment the writ of fieri facias was returned nulla bona. In May, 1929, the civil sheriff, under a new fieri facias, seized the furniture and household effects in the residence No. 1778 Nelson street in the possession of R. L. Parr, as the property of the judgment debtor. Mrs. Godchaux, defendant in rule, filed an affidavit claiming the ownership of the property seized.

It appears that Mrs. Godchaux had been previously married and had assets, aggregating about $10,000, which were her sepa,rate paraphernal property. After her marriage to Dr. Godchaux she advanced him $2,350, which was secured by loans on her jewelry. It also appears that she advanced him other sums of money amounting to over $2,000.

Dr. Godchaux had purchased house furniture and effects .from D. H. Holmes Company, Krauss Company, and Maison Blanche Company, amounting to about $2,500. He became financially involved and was unable to pay the balance of the account he owed to Holmes Company and had by agreement with Holmes Company transferred the account to a friend, D. J. Campbell, who assumed the balance due of $600. After making payments on account amounting to $425, on November 4, 1925, Mr. Campbell sold and transferred to Mrs, Godchaux the furniture and household effects purchased from Holmes for $700 and the assumption of the balance due to that company. Mrs. Godchaux paid the balance of the account, all with her separate and paraphernal funds.

On June 10, 1925, Dr. Godchaux. executed a document under private signature to transfer to his wife his interest in the household furniture, and effects in consideration of the various' advances that the wife had made to him, particularly the sum of $2,350 which he had borrowed on her jewelry.

In May, 1929, the judgment creditor was pressing Dr. Godchaux for settlement, and, being' advised that the document dated June 10, 1925, would be ineffective in protecting his wife against any judgment creditor, as far as the furniture and fixtures transferred by that document were concerned, Dr. Godchaux executed, on May 17, 1929, before Frank J. Stich, notary public, a formal act of dation en paiment of the furniture and household effects located in the premises No. 1778 Nelson street in consideration of $2,350 which Mrs. Godchaux had advanced to her husband. On May 28, 1929, the sheriff seized the property under the writ of fieri facias issued on May 16, 1929. It was then that Mrs. Godchaux immediately claimed ownership of the property by virtue of the act of dation en paiment by filing the affidavit with the sheriff.

It is contended by plaintiff in rule that a dation en paiment, whereby an insolvent husband conveys his property to his wife, is prima facie fraudulent and simulated and such property may be seized by the husband’s creditors, and, if seized, the burden will be on the wife to prove the real or bona fide character of the assignment.

It is the contention of the defendants in rule that she has successfully borne the burden of showing a bona fide dation en paiment by a preponderance of the evidence.

Three essentials are necessary to maintain the validity of a dation en paiment: First, a real indebtedness of the husband to the wife; second, just value of the property transferred for the existing debt; third, delivery of the property to the wife. Rev. Civ. Code, arts. 2446, 2655, and 2656; People’s National Bank vs. Voorhies, 134 La. 304, 64 So. 120.

We shall discuss the evidence with reference to these three essentials in the above order.

First. The evidence shows that Mrs. Godchaux did have separate paraphernal property and made advances to her husband amounting to over $2,000, besides the $2,-350 which she loaned to him when her jewels were pledged to secure the payment of the loan of this money. This money appears to have been advanced by Mrs. Godchaux to her husband during the years 1923-1924. The evidence clearly shows a bona fide indebtedness in excess of $2,350, by the judgment debtor in favor of his wife.

Second. The record clearly establishes that the value of the household furniture and effects purchased by Dr. Godchaux from the three furniture houses was about $2,500 or $2,600. His equity in this property would be less than $2,350, when we consider that Mrs. Godchaux purchased the interest of Mr. Campbell during November, 1925. The value of the property conveyed by the husband to the wife, therefore, did not exceed what he owed her.

Third. In the argument at bar, counsel for the plaintiff in rule admits that the strongest point in his favor ig that there was not sufficient delivery of the furniture to Mrs. Godchaux by her husband.

The testimony on this point shows that the building on Nelson street is owned by Mr. E. A. Parsons, and it was rented furnished to Mr. Taylor for a year or more and then to Mi". Parr, who was in possession of the premises at the time of the seizure. The rent was paid in a lump sum to Mr. Parsons, who, in turn, paid Mrs. Godchaux rent for the furniture and household effects contained in the building. Mrs. Godchaux placed this money in her own account in the bank prior and subsequent to the dation en paiment. She exercised ownership of the furniture, and, while she was not in physical possession of it at the time of the seizure, the fact that Mr. Parr, the tenant, and Mr. Parsons, the own.er of the property, recognized her ownership of the furniture by paying her the proportion of rent due her for the use of the furniture, is sufficient evidence of delivery.

“It is a well-settled principle in our jurisprudence that the law favors restitution to the wife, and looks with favor upon the efforts of the husband to secure her just and honest claims against him. The fact that the husband is insolvent and embarrassed, and that he is pursued by creditors by harsh remedies, cannot be invoked to destroy the validity of the transaction.’’ Colvin vs. Johnston, 104 La. 659, 29 So. 274, 275.
“Suspicious circumstances will not have the effect of destroying positive evidence, which is not contradicted, and which bears the semblance of truth.” People’s National Bank vs. Voorhies et al., 134 La. 303, 64 So. 120. See, also, Simonton et al. vs. Scott et al., 123 La. 413, 49 So. 4.

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


text:
    No. 13,305
    Orleans
    LAWRASON v. BANISTER
    (May 19, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    George Dewey Smart, of New Orleans, attorney for plaintiff, appellee.
    Hopkins & Talbot, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff, as assignee of a claim for doctors’ fees for professional services rendered, brings this suit against defendant for the sum of $200, balance due on account: The petition alleges, in substance, that the defendant, on or about June 6, 1927, engaged Dr. J. T. O’Ferrall, a bone specialist, to treat defendant’s brother for a broken leg and agreed to pay the doctor for his services; that the said agreement was made before any treatment was given and before any charges were incurred; that in accordance with the agreement with the defendant, Dr. O’Ferrall rendered medical services to defendant’s brother for the period from June 6, 1927, to August 16, 1927, for which Dr. O’Ferrall charged the defendant the sum of $300, as appears from an itemized statement annexed to the petition; that on July 20, 1927, complying partially with the terms of the above-mentioned contract, defendant paid Dr. O’Ferrall the sum of $100 on account, leaving a balance due of $200; that on February 2, 1928, the claim was assigned by Dr. O’Ferrall to plaintiff, as appears from the assignment which is annexed to the petition; and that defendant was duly notified of the assignment and payment was requested, but defendant refused to pay.

Defendant filed an exception of vagueness and no cause of action, which were referred to the merits, and then answered, denying categorically the allegations of the petition. There was a trial of the merits resulting in judgment in favor of plaintiff, as prayed for, and defendant has appealed.

It is not disputed that Dr. O’Ferrall was engaged and rendered the services in question, that the amount charged was reasonable, and that the assignment of the claim was made to the plaintiff by Dr. O’Ferrall. But the plaintiff contends that the defendant agreed to be primarily or directly liable to pay the debt, while the defendant contends that he at no, time promised to pay Dr. O’Ferrall his fees for medical services rendered or to be rendered in behalf of his brother, and that he only agreed to pay the hospital bills, which he paid.

Dr. O’Ferrall, a witness for the plaintiff, on direct examination testified as follows:

“Q. When this matter first arose who first consulted you?
“A. Dr. Banister telephoned my house and asked me if I would meet the train, his brother had received an injury and he wanted me to treat him and asked me if I would meet the train and I met the train the following morning. Dr. Banister was there at the time, we had to wait about 20 minutes for the train and during that time he told me his brother had had a good many financial reverses and he thought he lost everything but nevertheless he would stand behind the matter in regard to the bill for the services rendered his brother, and I thought Dr. Banister was responsible at the time, so I really was very glad to treat his brother and I had heard, however, that Dr. Banister was very hard.”

On cross-examination Dr. O’Ferrall testified as follows:

“Q. According to the statement you say that Dr. Banister met you at the train and told you he did not know what financial circumstances his brother was in?
“A. Yes.
“Q. And he told you that he would stand behind the financial matters regarding the expenses?
“A. Yes, which I inferred was his agreement to pay.
“Q. What did you understand by that?
“A. I think anybody would understand if the man stated he would stand behind the debt_ if he did not pay he would. Suppose I go into a store with a man and I say ‘if he does not pay for these goods I will.’ Dr. Banister himself knows his intention was to pay it. If he wants to, slip from under it that is up to him.”

Counsel for the defendant then objected to the introduction of any further evidence on the ground that parol evidence is inadmissible to prove a promise to pay the debt of a third person and renewed the exception of no cause of action. The exception of no cause or right of action, which was referred to the merits, we are informed in the argument at bar, was based upon the ground that a promise to pay the debt of another, to be binding, must be in writing, and that the petition failed to make this necessary allegation, and that parol evidence is inadmissible to prove a promise to pay the debt of a third person.

It appears that the judge, a quo, over the timely objection of counsel for the defendant, permitted other oral evidence to be introduced. The sole testimony as to what was agreed upon consists of that of Dr. O’Ferrall, as hereinabove stated, and Dr. Banister, the defendant. Dr. Banister denied that he promised to pay for the medical services to be rendered to his brother by Dr. O’Ferrall.

The testimony convinces us that defendant, Dr. Banister, did agree to pay Dr. O’Ferrall’s fee for services to be rendered to his injured brother, in the event that his brother did not pay it. But as Dr. O’Ferrall’s testimony shows that it was his understanding of the agreement that if the defendant’s brother did not pay the bill for his medical services to be rendered, the defendant would, the obligation was not a primary or direct one, but a secondary or collateral obligation, and therefore not subject to proof by parol evidence.

Article 2278 of the Revised Civil Code provides, in part, as follows:

“Parol evidence shall not be received: * * * 3. To prove any promise to pay the debt of a third person.”

The Supreme Court, in the case of Watson Bros. vs. Jones, 125 La. 249, 51 So. 187, said:

“There can be no objection to one’s contracting to pay for goods to be delivered, whether to the obligor, or to a third person, and the obligation resulting from such a contract may be none the less a debt of the obligor because the third person, to whom the goods are delivered, also becomes bound for the price. If the condition of the contract is that the obligor is to pay for the goods only in the event that the person to whom they are to be delivered does not, then the latter is to be regarded as the principal debtor, and the contract is a collateral one, of suretyship, in which the obligor would be regarded as binding himself for the debt of another, and which could not be proved by parol evidence. Graves vs. Scott & Baer, 23 La. Ann. 692; Levy & Dieter vs. Du Bois, Lowe & Foley, 24 La. Ann. 398. * * *
“Of course, if the goods were ‘sold’ to Pierson, he became a debtor for the price; but two persons may make themselves liable, primarily (and not, necessarily, in the relation of principal and surety) for the same debt, and that is what the petition seems to allege was done by defendant and Pierson. * *. * If it shows that defendant was to pay only in the event that Pier-son should not, it would have to be disregarded, notwithstanding its having been received, since it would, in that case, go to prove a promise to pay the debt of another. Merz vs. Labuzan & Carter, 23 La. Ann. 747; Levy & Dieter v. Du Bois, Lowe & Foley, 24 La. Ann. 401; Baker & Thompson vs. Pagaud, 26 La. Ann. 221.”

For the reasons assigned, the judgment of the trial court is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff’s suit be dismissed at his cost.


text:
    No. 636
    First Circuit
    COLLIGAN v. BENOIT
    (June 9, 1930. Opinion and Decree.)

      Medlenka, Bruner & Chambers, of Crowley, attorneys for plaintiff, appellee.
    H. Gordon Brunson and W. J. Carmouche, of Crowley, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff bought at sheriff’s sale, May 11, 1929, a tract of 146 arpents of land situated near Church Point, Acadia parish.

He alleges that after his purchase he informed defendant, Benoit, who was farming a part of the land, that he had bought it at public sale, and told Benoit he would allow him to continue his planting operations for the current year, provided Benoit paid him the customary share of all crops raised by him, being one-third of all cotton produced on the land, divided at the gin; one-third of all corn and one-fourth of all sweet potatoes. He further avers that defendant produced and gathered about eight bales of cotton on the land which had been stored by him on the premises, that there was also on the land from four to six bales of unpicked cotton, making a total of twelve to fourteen bales of cotton, to a third of which he was entitled, approximating in value, with the seed, $600, and that defendant refused to pay the rent for the current year. Averring his fear that defendant would remove the cotton from tne premises and would sell it to his prejudice, he obtained the issuance of a writ of provisional seizure under which the sheriff of Acadia seized on the premises the following property: Four bales of loose cotton in a barn, two bales in the field, not picked, with some corn and sweet potatoes. Six bales of cotton were also seized in Eunice, St. Landry parish, by the sheriff of that parish.

September 9, 1929, defendant came into court by motion for the purpose of bonding the property seized which was released to him under order of court, on a bond furnished by defendant with surety, on the same date. In the motion before asking for the bond, defendant alleged that he came into court, through his counsel, “with lull reservation of all of his rights and particularly of his right under the exception of want of citation which has been filed herein.” There was, at that time, no exception of want of citation filed in the case.

Twenty days later, defendant filed an exception on the ground that the citation served on him did not have the seal of the court by whose order it was given. The exception to the legality of the citation was therefore filed, after the motion for the bond had- been made and the bond furnished. The reference in the motion for the bond, to an exception to the citation which had not then been filed, could have no legal effect.

It was held in Rathbone vs. The London, 6 La. Ann. 439; Williams vs. Gilkeson-Sloss Commission Co., 45 La. Ann. 1013, 13 So. 394, and other decisions, that the appearance of defendant to obtain a forthcoming bond, and the execution of the bond with delivery of the property attached, effected a waiver of a defect or want of citation. This right to bond and have the property released from seizure is given a defendant in attachment proceedings under article 259, Code Prac.

The argument of counsel for defendant, if we properly appreciate it, is that the provisions of that article refer to attachment proceedings against non-residents where service is made upon them through curators ad hoc. We find nothing in that article which restricts its operation to non-residents nor in the following articles. As we read its provisions, the right is conferred indiscriminately ' on defendants in all attachment suits. It is true that in several cases upon which the Supreme Court has passed on this question the defendants appearing therein were non-residents and were proceeded against in attachment suits.

In the case of Hollingsworth vs. Atkins, 46 Ann. 515, 15 So. 77, 78, a citation had been addressed to the defendant partnership, not a commercial partnership, in which a writ of provisional seizure was issued. One of the partners excepted on the ground that he had not been cited, as the citation had been addressed to the partnership. In that case there was no non-resident defendant brought in by attachment. The defendants had, however, in the name of the partnership, applied for and executed a forthcoming bond, and, as in this case, had obtained possession of the property by provisional seizure. The court held that there was an appearance made in the case, by the act of bonding, that defendants had taken possession of the property, which “cured any defects of citation, or the absolute want of citation.”

In this case, the lack of the seal of the court on the citation in question constituted a defect of citation or was equivalent to a want of citation. In either case, such defect or want of citation was cured by the appearance of defendant to bond, his furnishing the bond, with delivery of the property to him.

Article 259, Code Prac., which permits defendant to have the property released, says that he will furnish a bond obligating himself to “satisfy such judgment, to the value of the property attached, as may be rendered against him in the suit pending.” The bond furnished here provides for the same liability should defendant fail to restore the property released to him if so decreed. The very stipulation of the bond that he will satisfy such judgment as may be rendered in the suit pending implies that he takes the property subject to the action of the court in the case. The exception was properly overruled.

Defendant then filed an exception of no cause of action asking for the dismissal of the suit, and the provisional seizure.

The petition alleges, in substance, that plaintiff had bought the land at public sale, that he had informed defendant that he would allow him to continue his ¡planting operations for the current year, provided he was paid his share therein, as hereinabove stated; that defendant had produced and gathered about twelve or fourteen bales of cotton, and had refused to pay his rent.

The contention of defendant is that plaintiff did not allege defendant had consented or agreed to the statement made in the petition, there was therefore no lease alleged, and no basis for the writ of provisional seizure.

Plaintiff having alleged that he made the purchase on May 11, 1929, and having told defendant that he could continue his planting operations, it must be assumed that there was at that time a growing crop on the land, and which was the property of the (plaintiff, under his allegations which must be taken as true under the exception of no cause of action. He further alleges that defendant made and gathered a crop of about twelve or fourteen bales of cotton. Defendant must therefore have continued his planting operations, otherwise he could not have made the crop. Although plaintiff did not allege that defendant had expressly assented to his requirements, but as defendant continued to farm the land, it must be assumed that by implied assent defendant agreed to the conditions of giving ¡plaintiff the share of the crop for which, plaintiff alleges, defendant was permitted to continue his planting operations, and has refused to ¡pay the rent. As a party may be bound to a contract by his implied, as well as by his express, assent or consent, we think that plaintiff has set out a cause of action, and that the exception of no cause of action was properly overruled, and that the dismissal of the provisional seizure was correctly denied.

MERITS

In his answer defendant avers that the sale by which plaintiff acquired the land is null, and prays that it be decreed null and of no effect. It is doubtful that he could thus collaterally attack the validity of the sale, but, however this may be, defendant merely alleges that he has an equity in the land, but does not ask that this equity be recognized or that title be decreed in his favor to the property by virtue of which he could have asserted his ownership to the crop. He does not contend that title is in some other party than (plaintiff which could have raised an issue as to plaintiff’s right of action against him. The real issue presented, and as to which most of the evidence has reference, is as to whether plaintiff was defendant’s lessor, and defendant his tenant, on the share basis alleged in the petition.

“Standing crops (etc.) are considered as part of the land to which they are attached.” Civ. Code, art. 465.

The adjudication at sheriff’s sale carries to the purchaser the immovable, its appurtenances, including fruits, pending the seizure, etc. Frank vs. Magee, 50 La. Ann. 1066, 23 So. 939.

Plaintiff therefore became the owner of the crop on the land by reason of the adjudication. Plaintiff testifies that, after he bought the property, he told defendant that he would owe him one-third of the cotton and corn and one-fourth of the sweet potatoes. He says defendant answered he would have to “see his lawyer for that.”

Defendant says that after the sale he stated to plaintiff he would have to see his lawyer for the share he was claiming. Referring plaintiff to his lawyer was somewhat of an indirect denial of his obligation to give a share of the crop which plaintiff was asking, and which the evidence shows was customarily accorded to owners by tenants of land on shares.

The fact is, however, that defendant did not deny that plaintiff had told him, after his purchase, that he would have to pay him his proportionate share of the crop he might make on the farm. The fact is also that, though plaintiff had demanded this share, defendant remained on the farm, continued to cultivate the crop, and finally gathered five bales of cotton, leaving on the premises four or five more loose bales, with corn and potatoes. This conduct of defendant, after plaintiff had stated his terms, shows that defendant had impliedly assented thereto.

Edward Daigle, a merchant of Church Point, had made advances to defendant, and had an interest in the crop he was making on the place, which had been advertised for sale. He says defendant said he knew it had been advertised and he would buy it back if he could. Daigle says he told defendant he was going to see plaintiff, and see if he would not allow defendant to finish the crop; that plaintiff told him Benoit could stay on the place, provided he gave him his share of the crop; that he so reported to defendant, who expressed his willingness to pay plaintiff his share. There is nothing to indicate that Daigle has any interest in this suit one way or the other.

The district judge, no doubt, believed he was telling what actually occurred. There is no doubt that defendant by continuing his planting operations had impliedly assented to the terms stipulated by plaintiff, the owner of the crop, and that by his statement to Daigle, that he would give his share of the crop, was merely confirming his implied agreement with plaintiff to pay the customary share to the owner for the cultivation of his land.

The statement of defendant to Daigle that he knew the property was for sale, and that he would buy if he could, and, subsequently, that he would pay his share of the crop to plaintiff, shows that he was not claiming as owner, though it may be true that he had an equitable right in the property as it was by him alleged in his answer, but not demanded or prayed for.

It is true that, without authority, the sheriff of St. Landry had seized five bales of cotton in that parish, but the court dissolved the writ in that respect, and perpetuated it on the part of the crop seized on the premises in Acadia parish, ordering it sold, the proceeds of sale to be applied to the satisfaction of plaintiff’s elaim — in which we find no error.


text:
    No. 648
    First Circuit
    KYLE MOTOR CAR CO. v. SUAREZ
    (June 9, 1930. Opinion and Decree.)
    Jas. B. Parkerson, of Franklin, attorney for plaintiff, appellee.
    F. Xavier Mouton, of Lafayette, attorney for defendant, appellant.
   MOUTON, J.

Defendant bought a second-hand Willys Knight automobile from plaintiff company. Two or three days after he had purchased it he returned it to plaintiff, claiming that in the operation of the auto there was an excessive consumption of gasoline and lubricating oil which constituted a redhibitory defect in the thing sold, entitling him to an avoidance of the sale.

It is shown that when the auto was first taken back to plaintiff’s garage, two or three days after the sale, it' was temporarily repaired, Mr. Olivier, manager of plaintiff company, being then absent. After being so repaired defendant kept the auto for a period of about ten or twelve days. He says, during that time he made a trip from Lafayette to Abbeville and back, going a distance of about forty miles, 'and consumed in that short voyage, about thirty gallons of gasoline. He also stated that in traveling over other short distances the auto had consumed an excessive quantity, not only of gasoline, but also of lubricating oil. After this unsatisfactory use of the auto during these ten or twelve days, defendant brought it back to the plaintiff. He says when he took the auto, Mr. Olivier said if the “car was not satisfactory he wouid have it put in first class shape, and that it would be satisfactory.” Then he was asked if the car had been repaired without any expense to him, if he would not have accepted the car? His answer was: “Yes.”

The question between the parties is therefore as to whether or not the, auto was properly repaired by plaintiff company, and at its own expense.

Defendant testifies that Mr. Olivier did not say that he would have the car fixed without cost to him.

Sterling, the salesman who sold the car to defendant, says he was present at a conversation between Olivier and defendant when the auto was taken back the second time. He was asked if anything had been said at that time about the auto being put in good shape at the expense of plaintiff company. His answer is that the matter was discussed, that defendant agreed to take the car back if it were overhauled and put in first-class condition.

Olivier testifies that when defendant returned with the auto and complained of its bad condition, he agreed to put it in first-class condition at the expense of plaintiff company. He says he ’phoned defendant several times at his house, and that finally defendant said he would not take the car.

Davis, automobile mechanic for plaintiff company, says he gave the car a thorough overhauling and that it is in first-class condition and is now at the garage of plaintiff company.

The record shows that no bill was sent defendant by plaintiff company for these repairs to the auto. These corroborating facts taken in connection with the testimony of Sterling, salesman of plaintiff, and Olivier, the manager, show that the auto was thoroughly repaired, and put in the condition demanded by defendant, and at the expense of plaintiff company.

The testimony of Olivier shows that, after the car had been thus (put in first-class shape, defendant was called upon over the ’phone and without viewing the car, simply declined to take it. The conduct of defendant shows that he had simply changed his mind, and was unwilling to comply with his agreement to accept the car if repaired at the cost of plaintiff company, which entitled plaintiff to judgment on the notes for its purchase price as was decreed below.


author: ELLIOTT, J.

text:
    No. 629
    First Circuit
    LOUISIANA OIL REFINING CORP. v. BURLEIGH (WILLIAMS RICHARDSON CO., INC., Third Opponent and Intervener.)
    (June 9, 1930. Opinion and Decree.)
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.

      L. B. Sandoz, of Opelousas, attorney for third opponent and intervener, appellant.
   ELLIOTT, J.

Williams Richardson Company, Inc., obtained judgment against Joseph H. Burleigh for $198.88 with interest and cost, by judgment signed June 6, 1929.

Louisiana Oil Refining Corporation obtained judgment against the same defendant for $256.32' with interest and cost, by judgment signed July 15, 1929.

On September 21, 1929, Louisiana Oil Refining Conporation caused to issue on its judgment a writ of fieri facias. This writ was credited with $50 and placed in the hands of the sheriff for execution on the day it was executed.

On October 7, 1929, Williams Richardson Company, Inc., caused a like writ to issue on its judgment, and the same was placed in the hands of the sheriff for execution, but the date it was placed in the hands of the sheriff does not appear.

On October 22, 1929, the sheriff executed both writs by seizing and taking into his possession a stock of merchandise belonging to the debtor, and advertised the seized property for sale.

It appears that John Horecky had obtained judgment against the same debtor and that execution also issued on his judgment, because the property seized was advertised to be sold under three seizures.

On being sold, the property brought $300. The sheriff made his return on the writ of Louisiana Oil Refining Corporation. After paying the cost he applied the sum of $209.72 on this writ, being the full amount it called for, leaving $43.84 to be applied on the writ of Williams Richardson Company, Inc. The record does not show any return on the writ of Williams Richardson Company, Inc., nor on that of John Horecky. John Horecky does not contest the matter. Williams Richardson Company, Inc., opposed the application of the proceeds to satisfy the writ of Louisiana Oil Refining Corporation, urging in its petition of opposition that its seizure and that of Louisiana Oil Refining Corporation was made concurrently, each at the same time. That as a result, each had an equal right, the same rank of privilege, and that the proceeds should be prorated between them proportionately and according to the amount due them on their respective writs.

Louisiana Oil Refining Corporation, .answering the opposition, denies that the seizures were made concurrently, and at the same time, and denies that the third opponent is entitled to a proportionate share of the proceeds. It alleges that the seizure under its writ was made first and that it is therefore entitled to be paid out of the proceeds in question first and in full.

The contest was submitted to the lower court on the writs, notices of seizures, and sheriff’s return on the writ issued under the judgment of Louisiana Oil Refining Corporation.

No effort was made to show that the return on the Louisiana Oil Refining Corporation writ was wrong in applying the proceeds to the satisfaction of that writ.

If the two seizures had been made, in fact, concurrently and at the same time it could no doubt have been shown, but it was not done. Under the law, Code Prac. art. 643, it was the duty of the sheriff to execute the Louisiana Oil Refining Corporation writ first, because it was first received. He is presumed, in the absence of any showing to the contrary, to have executed it first, as the law directs and provides in such cases. There is no showing that the Louisiana Oil Refining Corporation writ and that of the Williams Richardson Company, Inc., were executed concurrently and at the same time. The fact that both seizures were made on the same day does not destroy the presumption that the seizure in the Louisiana Oil Refining Corporation case was made first and as should have been done. Such was the holding in the lower court.

The ruling was correct.

Judgment affirmed. Third opponent and intervener to pay the cost of the qpposition and intervention in both courts.


text:
    No. 598
    First Circuit
    FOSTER v. ABNEY ET AL.
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and . Review Refused by Supreme Court.)
    Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    L. V. Cooley, Jr., of Slidell, attorney for defendants, appellants.
   ELLIOTT, J.

This is a damage suit brought by Bert J. Foster against Walter J. Abney and Mrs. Annie M. Abney, his wife, in which he claims of them the sum of $1,500 in solido.

He alleges against them in his petition that he had been occupying a residence belonging to Mrs. Abney, situated in the town of Slidell, as her tenant and lessee, from on or about August 1, 1926, until on or about August 24, 1928, at a monthly rental of $8 per month, and owed Mrs. Abney about two months’ rent.

That having lost his job and being out of employment, he decided to go to Mobile to look for work. That before leaving he called on Walter Abney, who had charge of the property for his wife, Mrs. Annie M. Abney, informed him of his desire, and requested permission to leave his household effects and property in said house until he obtained work or returned to Slidell, and that said Walter L. Abney agreed that he might do so.

That having obtained consent as above stated, he securely fastened up the house, leaving therein his furniture, household effects, and the clothes of himself, his wife, and four children.

That on September 12, 1928, he returned with his family about 11 o’clock at night and found the house occupied by a man named Galloway, who informed him that he had rented the house from the defendants, and that on instructions of W. L. Abney he had moved petitioner’s household effects and furniture from said premises and put them in a shed or building where the defendants resided.

That having no money to pay for lodging, he and his wife and four children, the youngest less than two years old, were compelled to spend the night in his automobile. That on the following day he went to the residence of the defendants and demanded possession of his property, and the clothes of himself and family. That said W. L. Abney, acting for himself and wife, refused to surrender any of said property until he had paid the rent owing for the house.

Plaintiff claims the value of his property, placing it at $500, also damages on account of having been deprived of the use of the same by himself and family, and for being compelled to spend the night out of doors in his automobile, etc., $800, a total of $1,500.

Defendants, Walter L. Abney and Mrs. Annie M. Abney, in their answer, deny that Walter L. Abney entered into an agreement with plaintiff that he might leave his property and household effects in the house until he obtained work or returned to Slidell. They admit that Mrs. Abney moved his effects out of the house and stored them, in order to preserve them, and at the same time to preserve her privilege on them as lessor. That his effects were moved out, to the end that she might rent the house to another tenant. That Mrs. Abney notified plaintiff to vacate the house; 'that he thereupon disappeared from the premises and from the town of Slidell, without leaving any word as to his whereabouts; that he in fact abandoned the premises and certain household effects located therein.

They deny that plaintiff sustained any damages, and urge a demand in reconvention against him for four months’ rent, in amount $82. There was judgment in favor of the plaintiff for $350.

Defendants have appealed.

The plaintiff testified in all respects substantially as alleged in his petition. He is coiToborated by Mrs. Poster, their young lady daughter, Miss Poster, and by a man named Clement. According to the testimony of the plaintiff, his wife, daughter, and the witness Clement, the conversation between the plaintiff and Walter L. Abney took place at the latter’s filling station in the town of Slidell. The substance of it was that Poster informed Abney that he had just received the notice to vacate sent him by Mrs. Abney; that he was not able to move his effects at the time; that he wanted to go to Mobile to look for work and to to take his family with him, as he had relatives there, and wanted to know if he could leave his effects in the house and lock it up until he could find work; that as soon as he got employment he would pay the rent and come or send for his effects. That Mr. Abney told him to go ahead; it would be all right, or used words to that effect. The plaintiff testified that acting upon this arrangement with Mr. Abney he fastened up the house and departed with his wife and children, going to Mobile; that being unable to find employment there, he returned to Slidell after a little more than two weeks, reaching there about 11 o’clock at night; that he found the house occupied by another family; that his wife, four children, and himself were thus compelled to spend the night in his automobile; that he called on Mr. and Mrs. Abney the next morning for his effects and was informed that he could not get anything until he paid the rent he owed for the house, which was at the time $26.

Walter L. Abney states the matter differently:

"Q. Did you hear Mr. and Mrs. Poster testify as to the conversation held with you at the filling station some time in August?
“A. I heard them say that.
"Q. Did any such conversation take place?
“A. Poster came there to the filling station and spoke of going away, and asked me about the furniture in the premises. I told him we expected the furniture to stand good for the rent, which we did, me and my wife. I was speaking for her.
“Q. Did you or not tell him that he could leave the furniture there and come back subsequently and it would be all right?
"A. I did not.
“Q. What did Poster say to you?
“A. Poster told me that he was unable to get employment in Slidell at that time and he was going away, he did not state how long or when he expected to be back, and asked me in regard to leaving the furniture in the premises, and that was my answer to him — that we expected the furniture to stand good for the rent.
"Q. That is all you told him?
“A. That was all.
“Q. Did Mr. Poster at any time request permission from you to leave his household effects and property ■ in this house until he could obtain -work?
“A. Ño, he did not.
“Q. Did he at any time request permission to leave his household effects there while he went away and until he returned, as he testified in this case just now?
“A. That is the only time he ever spoke to me in regard to it at all. My answer to him was, as stated just now — we expected the furniture to stand good for the rent.
"Q. Did you at any time give Poster permission as he requested?
“A. I did not.
“Q. This permission — you understand my question — was to leave his household effects there until he obtained work and returned to Slidell. You say you did not give him this permission?
“A. I did not.”

These questions anil answers of Mr. Abney admit that plaintiff made the request which he claims to have made, but denied that consent was given thereto. Mrs. Abney, questioned in regard to the matter, said:

“Q. Did your husband tell you that Mr. Foster went to him and wanted to leave his furniture in the house while he went away to look for work? Didn’t you kuow that?
“A. No, sir, I did not; if he had, I consider that I owned the property and I had a right to do as I pleased.”

The testimony on the subject and connecting-facts and circumstances have led' us to the conclusion that Mr. Abney did agree to the request of Mr. Foster that he might leave his effects in the house while he went to Mobile with his family to look for employment; that he answered Foster that it would be all right, the understanding being that Foster would soon obtain employment, pay the rent, and either come or send for his effects. An arrangement of this kind having been entered into, plaintiff, acting thereon, fastened up the house and departed with his family on the next day following the conversation with Mr. Abney, or the day thereafter. We are unable to come to any satisfactory conclusion, however, as to the length of time plaintiff was absent. According to the plaintiff and his wife and daughter, he was absent a little over two weeks. According to defendants and the witness Galloway he must have been absent fully three weeks or more. We think plaintiff was absent longer than as stated in his petition.

The facts show that Mr. Abney was the agent of his wife in renting this property to, and in collecting the rent from, the plaintiff. Acting for her, he had rented it to Mr. Foster some two years previously; the rent was some times paid to him and at other times, to Mrs. Abney.

We have also concluded that Mr. Abney had authority as her agent to authorize Mr. Foster to leave his effects in the house, as Mr. Foster claims' he did. And Mr. Abney having entered into said arrangement, it was binding on Mrs. Abney, no matter whether she was aware of it or not.

No definite time was fixed during which Foster might be -gone; but the arrangement did not contemplate an unreasonable enforcement. It cannot be supposed that the parties contemplated placing Mrs. Abney in a situation in which her house would be converted into a storing place for plaintiff’s effects for an extended period of time. It contempated that Foster would soon pay the rent and move his effects out of the house.

The evidence does not indicate that plaintiff had any communication with Mr. or Mrs. Abney from the time he left on or about August 21 or 22, 1928, until his return, we think likely, about three weeks thereafter. According to Mr. Galloway, he moved into the house on or about September 8, 1928. Plaintiff’s effects had been moved out of the house before he moved in. We do not find under the circumstances that Mrs. Abney should be held to have acted too soon in moving plaintiff’s effects out of the house. She had the right to expect the plaintiff to soon find employment, pay the rent, and either come and get his effects or send for them.

The evidence does not indicate proper diligence on the part of the plaintiff in the matter of finding work, remitting the rent, and coming or sending for his effects. The house was small, and plaintiff’s effects had to be moved out and stored elsewhere before it could be occupied by another family. We therefore do not find that plaintiff is entitled to damages because liis effects were moved from the house. But we find that the defendants, Mr. and Mrs. Abney, were at fault for the way plaintiff’s property was treated while being taken down and for the manner in which it was placed and kept on defendant’s premises. When Mrs. Abney, instead of resorting to the process of the law for having the effects in the house subjected to her privilege as lessor, took it on herself, on account of the arrangement which had been entered into between plaintiff and her husband, to move them out of the house and store them elsewhere, it should have, been done carefully. She should have given the property, while it was being packed, taken out of the house to the storing place and put away, all the care of a prudent administrator. Civil Code, arts. 3167 and 1908. The facts indicate that this was not done. The evidence shows that the effects consisted not only of furniture in good condition, but of other things in good condition, such as clothing, linen, and other things belonging to the plaintiff and his wife and children, such as tools, family beds, bedsteads, armour, table, books, musical instruments, family portraits, dining table, dining room utensils, stove and kitchen utensils, etc., on which the lessor’s privilege did not exist, Civil Code, art. 2705, and which could not be taken under process of law for the payment of debts, Code Prac. art. 644 (Amended by Act 184 of 1918).

Mr. and Mrs. Abney claim that they were not aware that they had plaintiff’s clothing and that of his wife and children in their [possession. They say that plaintiff and his wife did not request the return of their clothing; that if they had known that their clothing was part of the effects detained, and had been so requested, the clothing would have been returned. The defendants must be held to have been aware of what they had removed from the house in question and had in their possession, stcred in their yard, and if they were not aware that among the effects was clothing, they ought to have been, and will be considered to have known what was actually in their possession and their explanation cannot excuse them.

The plaintiff in his petition does not (pray that the effects be restored to him; he alleges that his effects were worth $500, and that the value of the same had been destroyed by the fault of the defendants. His wife produces a list showing the effects and their estimated value, which is considerably in excess of the sum alleged. Plaintiff claims their value; he also claims damages in his own behalf and in that of his family on account of having been deprived of their use. The amount of rent due, compared to the value of the effects, was insignificant at the time the things were taken out of the house; but defendants do not offer to restore anything. Defendants, in our opinion, have, by their fault, destroyed the value of effects, such as has been above described, which were valuable to the plaintiff and his family at the time of their departure from the house. Some of the things had value in the eyes of the plaintiff and his family and were of no value to anybody else. Civil Code, art. 1934, subd. 3, etc. As defendants are responsible for the loss of plaintiff’s effects, they must make the loss good, as near as can be ascertained.

The lower court awarded the plaintiff $350 damages against the defendants in solido. The judgment does not say whether it is solely for the value of plaintiff’s effects, or for damages for having been deprived of the use of same. It does not appear how the amount was arrived at. The plaintiff states in his brief that he has filed an answer to the appeal in which he prays that the amount allowed him in the lower court be increased, but we do not find the answer in the record, and therefore do not act on that question. But we are satisfied that the amount allowed should not be decreased.

The defendants urge in their answer a demand against the plaintiff in reconvention for $32 on account of unpaid rent. The lower court did not act on this demand.

We think that defendant’s demand in re-convention, to the extent of $26, should be granted. The judgment appealed from must be amended in that respect, in other respects it will be affirmed.

For these reasons the judgment appealed from, to the extent that it is in favor of the plaintiff, Bert J. Foster, and against the defendants Walter L. Abney and Mrs. Annie M. Abney in solido for $350, with interest thereon, as stated in the judgment, and condemns the defendants to pay the cost in the lower court, will be affirmed. But it is now ordered that defendants Walter L. Abney and Mrs. Annie M. Abney have judgment in reeonvention against the said Bert J. Foster to the extent of $26, with legal interest from September 21, 1928, until paid. That this judgment in reconvention be applied as a credit and offset against the amount which the said defendants have been condemned to pay. That the plaintiff-appellee pay the cost of this appeal.