text:
    No. 12,675.
    Rene F. Delahoussaye vs. The Adeline Sugar Factory Company, Limited.
    I£ in the attempted performance of a commutative contract to transport sugar cane from the field to the factory and pay the purchase price for cane agreed upon, the cane becomes sour and unfit for use caused by a “freeze,” to which the cane was exposed owing to deficient means of transportation, the purchaser was bound to furnish, he must bear the loss resulting from the freezing temperature.
    APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      D. Gaffery & Son and J. Sully Martel for Plaintiff, Appellant.

      Philip H. Ments and Carroll & Carroll for Defendant, Appellee.
    Argued and submitted January 25, 1898.
    Opinion handed down March 7, 1898.
    Rehearing refused May 16, 1898.
   The opinion of the court was delivered by

Miller, J.

The plaintiff takes this appeal from the judgment against him denying damages for an alleged breach by defendants of their contract to purchase the crop of cane grown on plaintiff’» plantation in 1894.

The contract stipulated the plaintiff was to deliver by rail fifteen hundred tons, of two thousand pounds each, of good, sound, unfrozen cane at defendants’ factory, the delivery to begin October 22,. at about twenty-two tons per day, if bad weather prevented, the-deficiency to be made up in the week, the defendants to pay eighty cents for every cent prime, yellow clarified sugar sells for in the-New Orleans market, and an additional dollar per ton for the bounty paid to defendants.

The testimony shows that the defendants received a large portion of plaintiff’s crop under the contract, but while the delivery was in progress there came a freeze ” on the 25th December. Defendants continued receiving up to the 12th January, when they declined taking any more cane, on the ground it had soured by reason of the “ freeze ” and the character of the weather that followed. At that time there was left in the field - acres of cane, under the testimony equal to nine hundred and sixteen tons. The plaintiff’s contention is, that the written contract as to delivery was changed and the defendants assumed the obligation to furnish the cars of the' railroad requisite to carry the cane from Berard’s switch, near, we infer, to plaintiff’s plantation, to the factory, that if the freeze injured the cane the loss is due solely to defendants’ failure to provide the required number of cars for the transportation from Berard’s switch to the factory; that if not injured as he contends, defendants under their contract were bound to receive the cane, and on either view are bound to pay for the nine hundred and sixteen tons. The defendants’ contention is their contract was not modified, and hence plaintiff shows no compliance; that defendants received all his cane not soured by the “freeze ” and are not bound for any part of that for which payment is sought in this suit, because it was not the good, sound, unfrozen cane required by the contract.

The plaintiff’s contention that the written contract was modified as to the mode of delivery, rests upon the testimouy that prior to any delivery the defendants assumed to furnish the cars. The plaintiff and another testify that one of the defendants “ took it on himself to do so,” one of the witnesses going more into details, thus: “Isay positively that the arrangement was that Mr. Sprague, one of the defendants’ firm, would furnish the cars; is positive he said, the Adeline factory will furnish you six ears a day, and the witness on his cross-examination repeats that Mr. Sprague said: ‘You will have the six cars a day.” These statements, made to plaintiff, were elicited by the expression of his fear that the cars would not be furnished. It is urged on us that the statements of Mr. Sprague to which the witnesses testify, were in a roadside conversation, that there was no consideration to change a written contract as to delivery, thereby increasing the burden to the defendant, and it is sought to show that the statements referred only to cribbing the ears, which we understand to be furnishing the labels indicating the plantations to which the ears were to be sent and preparing the cars to receive the cane. Whether the statements were on the roadside, or any other place, their significance we think obvious, and on that significance plaintiff acted. It is impressive, too, that no explanation or contradiction comes from Mr. Sprague. The cribbing, we gather from Mr. Oxnard’s testimony, is done by the defendants after the cars are placed at their disposition by the railroad company, and is preliminary to sending the cars to the destinations indicated by the labels, we infer, the defendants furnish. The cribbing and forwarding the cars to the points where the cane is to be delivered for transportation to the factory, are closely connected. When cribbed the cars are put in charge of the raiiroad employees, but their destination, i. e., where to be carried to receive the cane, is determined by defendants. Substantially, we think the defendants controlled the sending of the cars, and the plaintiff had the right to depend on them for the transportion of his crop to the factory. If we pass from this view, sustained, we think, by Mr. Sprague’s statements, there is, in our view, strong confirmation in the course of the business of the parties. Besides the plaintiff’s crop, the defendants had agreed to purchase or receive the cane of others. It is in proof that cars cribbed by them were sent to other points on the railroad. At Berard’s switch, cars were collected to receive cane there purchased from various parties. All this movement of cars, we gather from the record; was directed by defendants It is no answer to say the cars belonged to the railroad company ; they were put at the service of defendants. Again, when plaintiff became impatient because of the delay in transporting his cane, it was to the defendants he addressed his demands for cars. If they had nothing to do with supplying cars, their response would have been to that effect. On the contrary their answer accepted the duty implied by the call. When later he became alarmed for the preservation of his crop, defendants assured him they would save it. It is urged plaintiff also sought the railroad officials. It is impressive they told him they had nothing to do with the matter, if we read the testimony right. But whatever the calls on the railroad company, does not, in our opinion, detract from the import of his demands on the defendants as evincing their understanding, as well as his appreciation of the contract. It seems to us, too, that Mr. Oxnard’s testimony, referring to defendants’ relation to transportation, is corroborative of our conclusion on this branch of the case. He testifies: “ When we had agreed to furnish the cars, we had agreed to crate a certain number which would be used for that switch, i. e., Berard’s. Don’t remember positively whether it was eighteen, it might have been. Did not agree to any specific number per day; an estimate would be made as to how many would be crated; would crate that number and reserve them for that service.” It seems to us this testimony carries but one significance as to the burden of transportation, and puts it on defendants. It is in evidence that the plaintiff was charged with the cost of the transportation, deducted by defendants in their payments to him for cane. That would seem to be an interpretation of the part of the contract as to delivery at the factory, that is, plaintiff was to bear the expense; but the intercourse with Mr. Sprague, the testimony of Mr. Oxnard and the course of business, leads us to the conviction the plaintiff had the right to depend on defendants for cars for transportation of his cane to the factory. We do not think, to avert the loss of the cane due to the failure to furnish cars, the defendants are now at liberty to invoke a construction different from that the testimony and their own conduct places on their obligation.

The defendants, however, insist that sufficient cars were placed at Berard’s switch, and it was plaintiff’s fault the cars were not in requisition to carry his cane before it was frozen. In this connection the statement is attributed to him, in effect, that he held his cane back to give the small planters from whom defendants had purchased a chance, and it is insisted he had an interested motive in not shipping his cane. The testimony of the plaintiff is he made no such statement with reference to his crop, the subject of this controversy. We do not find the contention of defendant supported. On the issue of sufficient transportation the current of the testimony is that some days during the period that should have been utilized for the transportation, i. e., before the cane was frozen, no cars whatever were supplied. On other days cars came, but not enough, and at no period, notwithstanding plaintiff’s demands, were the cars provided adequate to carry the cane. The plaintiff was the defendant’s agent at Berard’s switch to receive and send forward all the cane they were to receive at that point. The smaller planters had equal rights to use the ears for the transportation of their cane. It could or should not have been expected that plaintiff should give his own cane any preference. Had he done that, the effect of the cold that it is claimed affected his crop would have fallen on the smaller planters with whom defendants had, we presume, the same contract relations. Be that as it may, there is no basis on which we can hold the plaintiff could have expedited the carrying of his cane fco the factory, and thus avoided the freezing weather, by any greater use of the cars intended for all. The result of the whole testimony is, that the defendants had to receive more cane at Berard’s switch than could be transported in the cars they furnished, and the inevitable result was that freezing weather came before they could complete the transportation. If the weather unfitted the cane for use as they contend, all the crops were equally exposed, and if that of plaintiff’s had escaped by preferring his cane over transporting the crops of others, others would have suffered. We do not find he could ha ve saved his crop by that preference, and the cars appear to have been used to the best end practicable under the circumstances.

Again, it is claimed the plaintiff should have windrowed his cane. It is in proof plaintiff consulted defendants on that point. It seems that windrowing after freezing temperature, is not always adopted* The defendants stated plaintiff must use his own judgment, but they would not windrow their own cane. If, as we hold, it was the defendants’ obligation to transport the cane and failing in this the freezing weather occurred, which as they claimed destroyed the cane, in our opinion they can not escape liability merely because plaintiff did not employ a measure of doubtful necessity or use, and which defendants themselves in the exercise of their best judgment did not adopt for their own crop in the same locality.

We deem unimportant the contention thatthe cane was unfitted for use by the freezing temperature to which it was subjected. If the obligation to transport the cane to the factory was on defendants, and the cane perished in the slow performance of that obligation, they should bear the loss. Their refusal to receive the cane after it was frozen entitled plaintiff to sue for his damages.

The defence has been presented mainly on the contentions that defendants were not bound to furnish the cars, and if bound they complied. To these aspects and others we have given attention.

We think defendants liable for the cane in the field of the quality required by the contract, which could have been transported if defendants had provided the cars and which had been lost to plaintiff.

Wé think it best to remand the case for proof of that loss.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that this cause be remanded to the'iower court for the purpose of ascertaining the plaintiff’s loss as stated in this opinion and for that loss thus ascertained the plaintiff to have judgment against defendant with costs.


source: Caselaw Access Project

author: Miller, J.'

license: Public Domain

text:
    No. 12,589.
    The State ex rel. Mrs. Louisa Hohn vs. Edward Finnegan, Recorder, etc.
    1. To authorize the fines under the ordinance against the keeping of houses of prostitution or assignation there must be proof of the notice to the occupant given by the Mayor provided by the ordinance, and proof of the use of the house for the prohibited purposes. Flynn’s Digest of the Ordinances, See. 1081; 36 An., 913; 41 An. 1081.
    2. Hence, when such fines have been imposed with no proof of the prohibited use, and only on proof of the notice, and the relator has been denied the right to offer witnesses she claims would disprove the charge against her, the sentence of the recorder imposing the fines must be set aside. Constitution, Art 90; Code of Practice, Art. 857.
    3. The court again affirms that charges before the Recorders for violations of the laws or ordinances do not require the precision of indictments, but reasonable notice of the charge is all that is required. Horr & Bemiss on Municipal Ordinances, p. 45, Sec. 172; 43 An. 8B6; 44 An. 79.

      p^N APPLICATION for a Writ of Certiorari.

      O. B. Sansum for Relator.

      James J. McLouglilin Assistant City Attorney, and Samuel L. Gilmore, Oity Attorney, for Respondent.
    Submitted on briefs May 7, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Miller, J.'

The relator seeks by the writs of certiorari and prohibition to review the proceedings before the Recorder .of the First District, resulting in the sentence that Relator pay fines for violating the city ordihances prohibiting assignation houses.

With other allegations unnecessary to be considered, the Relator" charges in effect that she was condemned with no sufficient notice of the charge, and with no proof required or administered, under the view of the Recorder of the ordinance under which he claims to have acted.

In proceedings before the Recorder for violation of ordinances it is not essential the rules should be observed with reference to the structure of indictments. It suffices that the affidavit on which the proceedings are based should with reasonable certainty specify the offence. In this case the affidavit charges the violation of the ordinance, giving its number, relating to houses of prostitution and assignation, and the dates when the violations occurred are stated. The affidavit would have been in better form if the Relator had been charged with keeping a house of the character prohibited by the ordinance. No greater particularity could be deemed required when the use of the house for the purposes of prostitution and assignation is the offence. We think the affidavit conveyed with sufficient certainty the notice of the charge. Horr & Bemiss on Municipal Ordinances, p. 145, Sec. 172; State vs. Mack, 41 An. 1081; State vs. Dunbar, 43 An. 836.

The more serious complaint of the Relator is that she was sentenced without any proof, save of notice given by the Mayor to remove from her premises. This furnishes the basis of the argument that Relator has been sentenced not for keeping an assignation house, but for non-compliance with the order of the mayor. This construction of the ordinance that authorizes sentence on mere proof of the notice and non-compliance, the relator insists, makes the ordinance exceed the power conferred by the charter on the council, and also brings the ordinance in plain conflict with the constitutional guarantees of the rights of person and property.

The ordinance provides that whenever a house of prostitution or assignation becomes dangerous to public morals from the manner it is conducted, or the character of the neighborhood, and the mayor is informed of it, that it shall be his duty to give notice to the occupant of the house to remove, and for the offence of keeping the house and for each day’s persistence in that use after receiving the notice, the ordinance imposes a fine. Flynn’s Digest, Art. 1081. It appears the relator in previous proceedings before the recorder was fined, then brought the ease before us on a certiorari, but the record disclosed no basis for us to review the proceeding. She was again fined, and that case was brought here by appeal, presenting no ground for reversal under the limited jurisdiction we have on appeals in this class of eases. From the subsequent sentence for twenty-two days of persistent use of the house for the forbidden purposes, the Relator seeks relief by the writ of certiorari bringing up the record now before us. The allegation in the petition is that the fines for twenty-two days, that is five dollars for each day, were imposed on no proof of that use, that no witness was- offered to show any such use since the notice of the mayor, and as we understand the petition and argument the recorder declined to hear testimony there had been no such use. The sentences were imposed solely on proof of the notice given about two months before the sentence now under review was imposed. Our examination of the record sent here under the certiorari exhibits no proof of any use since the notice, though there is the offer in evidence of the record of the prosecution before the recorder on the previous occasion when the relator was fined. The case then presents the question whether the fines in question can be imposed on proof merely, of the mayor’s notice, and whether the Relator was not entitled to offer witnesses to show no prohibited use after the notice.

Under this ordinance the use of the house for the purposes specified is the offence, not the failure to obey the mayor’s notice. No fine can be imposed, it is true, without proof of the mayor’s notice, but it is equally true that the keeping of the house for the prohibited purpose must be also proved. Were it otherwise the mayor’s notice would be conclusive of the offence. No such construction can be admitted consistently with the protection the Constitution affords to the rights of property. Constitution, Art. 6; Corporation of Minden vs. Silverstein & Dittmer, 36 An. 913; State vs. Mack, 41 An. 1081. It is quite true that the use of the house for the purposes forbidden by the ordinance once proved, is presumed to continue until disproved. But the difficulty in this case is that no proof whatever of the use was administered and proof claimed to negative that use since the notice was excluded. The sentence without proof and the refusal to hear relator’s witnesses authorizes the relief claimed on the present application. Constitution, Art. 90; Code of Practice, Art. 897.

It is therefore ordered, adjudged and decreed that the sentenec imposing the fines of one hundred and ten dollars, the subject of this litigation, be annulled and set aside, without prejudice to the right of the city to seek their recovery in another prosecution to be conducted in accordance with the views herein expressed, the cost of these proceedings to be paid by. respondents.


author: Blanchard, J.

text:
    No. 12,700.
    The State of Louisiana ex rel. Jackson Heffner et al. vs. Judge of the First Judicial District of Louisiana.
    Two questions are presented: First, will the writ of mandamus lie in the ease as presented — that is to say, if issued would it operate as an invasion of the judicial discretion vested in respondent judge? Second, is this executor, after paying a small fine and serving a sentence of ten days in jail for contempt of the authority of this court and of the lower court, in refusing to deliver up the property of the succession, which he holds as an officer of the court, to be permitted to go free, and is the power of the court as for contempt exhausted?
    Held: First, that the mandamus will lie.
    Second, that the power of the court as for contempt is not exhausted.
    QN APPLICATION for a Writ of Mandamus.

      Harrison & Aston, Leonard & Randolph, and D. T. Land for Relators.
    Respondent judge in propria persona ( Wise & Herndon, and Solomon Wolf, of Counsel).
    Submitted on briefs December 18, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused April 18, 1898.
   The opinion of the court was delivered by

Blanchard, J.

William Heffner died and left an estate. There were no forced heirs. What purported to be an olographic will was admitted to probate. It devised the estate to certain collateral heirs, to-wit: James Heffner and his children. James Heffner, the brother of the dead man, was named as executor without bond. He was not given the seizin. He qualified and in his capacity as executor was put in possession of the property. Other collateral heirs of the same degree of kindred (now relators herein) brought suit to annul the will for non-eompliance with the requirements of the law.

The will was annulled. This left the estate to be inherited according to law. Jackson Heffner and others (relators) became entitled to part of the estate. The annulling of the will vacated the executorship.

Before the final judgment on the will was had, the executor had collected the succession assets and reduced its property to money.

He was cited to account and the amount due the relators definitely fixed at nine thousand eight hundred and ninety-seven dollars and twenty-nine cents.

A rule was then taken on him to compel the delivery of this portion ©f the succession assets.

This rule was dismissed in the court below, but on appeal the judgment was reversed, this court holding it to be the case of an executor who, under judicial authority conferred by his letters, had obtained a large amount of property, which by reason of the avoidance of the will should be turned over to the legal heirs.

The ease was remanded with directions to make the rule absolute 111 so as to order the defendant to deliver to the heirs the succession funds accruing to them ” — naming the amount. Succession of Heffren, 49 An. 1443.

This judgment was the mandate of this court sent back to the lower court for execution.

It was entered up below and the order to deliver duly issued to the executor officially and personally. He refused or failed to obey it, whereupon a rule issued to show cause why he should not be punished for contempt, which, upon trial, was made absolute, the executor, officially and personally, adjudged guilty of contempt and condemned to pay a fine of fifty dollars and to be imprisoned for ten days.

This punishment was inflicted, but without avail. The executor paid the fine and emerged from jail at the end of the ten days still refusing and failing to deliver, and the order of the court remained unexecuted.

Thereupon a second petition for rule was filed by relators setting forth the contumacy of the executor notwithstanding further formal demand made upon him for compliance, and a second order was obtained requiring him to show cause why he should not be punished for contempt in still refusing to obey the judgment of the court.

To this second rule he filed exceptions of res judicata and autrefois convict, and pleaded that the judgment on the first rule for contempt, which had been executed by payment of the fine and undergoing the imprisonment directed, operated as an absolute bar to further proceedings against him for contempt for non-compliance with the judgment of the court commanding delivery of the estate to the heirs.

These exceptions were sustained and the second rule dismissed.

This operated as a refusal on the part of the lower court to try the proceedings on its merits.

Thereupon the application now under consideration was filed here, praying this court for its writ of mandamus to compel the lower judge to reinstate and to try and determine the same according to law.

The allegation is made that it is the ministerial duty of the lower court to enforce the mandate of this court; that relators have the legal right to the enforcement of the same; that, to that end, contempt proceedings may be taken as often as defendant, on due demand, persists in his refusal of compliance; that the action of the lower court in dismissing the second proceedings for contempt is based on a construction of law palpably erroneous; that relators can obtain relief by no other means, and that the refusal to proceed in this way is a denial of justice and deprives relators of the only remedy adequate or available to meet the case.

The respondent judge answers that his judgment dismissing the second rule for contempt was rendered in the exercise of his judicial discretion and the same can not be reviewed by process of mandamus; and that he has complied with the mandate of 'this court in the Succession of Heffner, 49 An. 1443, and sought the execution of the judgment by punishing the executor to the full extent of the powers vested in his court.

He takes the position that the refusal to pay on the second demand does not constitute a second and distinct offence; that as there has been but one order issued by the court, there can be but one disobedience of it; and that as this disobedience has already been punished to the full extent of the sentence authorized by law, the power of his court is exhausted.

Two questions are by these issues presented for our determination: First, will the writ of mandamus lie in the ease as presented — that is to say, if issued, would it operate as an invasion of the judicial discretion vested in respondent judge; second, is this executor, after paying a small fine and serving a sentence of ten days in jail for contempt of the authority of this court and of the lower court in refusing to deliver up the property of the succession, to be permitted to go free, and is the power of the court as for contempt exhausted?

As to the first, a distinction is recognized between cases where it is sought by mandamus to control the decision of an inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action upon an erroneous construction of some question of law or of practice preliminary to the case upon its merits. And while the decision of the court upon the merits of the controversy will not be controlled by mandamus, yet' if it has erroneously decided some question of law or practice presented as a preliminary objection, and upon such erroneous construction, has refused to go into the merits of the case, mandamus will lie to compel it to proceed. High on Ex. Rem. Sec. 151.

It is well settled that mandamus lies in all cases to compel an inferior court to proceed to the trial of a cause, and to set it in motion where its refusal to proceed amounts to a denial of justice. Ib., Sec. 251; 34 An. 74, 1177; C. P. 830.

On what must be held to be an erroneous construction of a question of law and practice, the court a qua, in the instant case, dismissed the proceedings on exception. It was tantamount to a. refusal to try on the merits a matter at issue, upon which depended the execution of a judgment of this court. The machinery of the court necessary to such execution was stopped by the dismissal of the proceedings. The order of mandamus now sought is necessary to set that machinery in motion again. Without it there would be a denial or indefinite postponement of the only mode accessible and available for the execution of the judgment directed by this court to be entered in the succession of Heffner, and necessary for the just settlement thereof.

It is for this court which rendered the judgment to take cognizance of the manner of its execution,, when the proper manner of executing it is to be determined. C. P. 629.

The pending application can not be viewed as an effort to control the decision of the lower court upon the merits of the cause, but a plain case where the inferior court, upon an erroneous construction of law and practice, refuses to take any action at all upon the merits , of the proceedings presented, and where such refusal to act is a denial of justice. In such a case mandamus will lie to compel the court to reinstate the case and to proceed with its determination, and such order is not one that invades the judicial discretion of the lower judge. 34 An. 76, 1177; 41 An. 43; 20 An. 521; 6 R. 92; 11 La. 369.

This view is strengthened by a consideration of the powers.conferred upon this court by Art. 90 of the Oonstitution.

As to the second question, which involves the powers of the court in proceedings as for contempt, it is well settled that disobedience of orders for the payment over of moneys, or the delivery of property by officers of the court, especially those holding in a fiduciary capacity, are punishable by such proceedings. Rapalje on Contempts, Secs. 15, 17, 130.

And which are commonly resorted to. Ib., Sec. 35.

The refusal or neglect of a guardian, executor, administrator, trustee, or receiver to account or deliver over property when ordered by the court, is a contempt for which he may be committed. C. P. 131; 36 An. 356; 21 An. 297; Rapalje, Sees. 33, 130; Watson vs. Williams, 36 Miss. 331; Brown on Jurisdiction, p. 324 and note; 87 Iowa, 73; 69 N. Y. 536; 23 Blatch. 552; 27 Fed. Rep. 198; 114 Mass. 230; 51 Cal. 442; 55 Cal. 193.

The prevalent statutory and constitutional guarantees against imprisonment for debt are ordinarily held not to be infringed by the .commitment to jail of such parties in contempt by reason of a disobedience of orders regarding the payment of money in their hands, or the delivery over of property. State ex rel. Audibert vs. Sheriff, 47 An. 335; Encyclopedia of Pleadings and Practice, Vol. 4, p. 803, citing 41 Ga. 466; 59 Ga. 523; 88 Ga. 361; 23 Minn. 411; 13 Phila. (Pa.) 430; 44 Pa. St. 247; 59 Wis. 24; 60 Mich. 167; 1 Blackf. (Ind.) 166; 37 Mo. App. 562.

An executor ordered to deliver up succession property is not to be considered a mere debtor, nor do the heirs of a succession claim merely as creditors. Such was the ruling of this court in the succession of Heffner, 49 An. 1443.

The power of the court to punish for contempt is exercised for two purposes:

1. To vindicate its dignity for disrespect shown to it or its orders.

2. To compel the performance of some order or decree of the court* which it is in the power of the party to perform and which he refuses to obey. Am. and Eng. Ency. of Law, Vol. 3, p. 797.

And it can make no difference that the party can not presently perform the act commanded where it appears his incapacity arises through fault of his own, or where it is a case of non-performance, the result of his acts wilfully done, Or where the contempt consists of an antecedent act, by which the accused rendered performance impossible. Ib., p. 784 (note); Wartman vs. Wartman, Taney, C. C. 362; Rapalje on Contempts, Sec. 17; 49 An. 1443.

These general observations lead to the consideration of the case immediately in hand.

That this executor is viewed by our law as an officer of the court can not be denied. 38 An. 861; 49 An. 80.

He held the property and funds of this succession under the mandate of the court, and he was peculiarly subject to its orders with reference to the same. 2 An. 87. Being an officer of the court, and deriving his possession.of the property from the court in bis capacity as executor, he is ip contempt of its authority in refusing or failing to surrender the same to the court, or upon its order. 36 An. 552.

To say that the court had authority to issue an order for the delivery of the property, which being disobeyed and the executor punished for such disobedience, the authority of the court is at an end, and no further proceedings as for contempt can be taken upon further demand made on him to comply with the order and his refusal, would put the court in a sad predicament indeed. It would be to infringe its dignity, lessen the respect it should always command, render its order to its own officers nugatory and impair its usefulness generally. See 31 An. 119.

Nor is it necessary before taking the second proceedings in contempt that the court should issue another, order or render another judgment commanding delivery. It would be useless and futile to continue to issue such orders or judgments. One such judgment and order is sufficient, and the offence of the executor is repeated when, after one punishment for contempt, a demand is made upon him and he still refuses compliance. Separate convictions may be had against the same party for commissions of distinct contempts occurring in the same proceedings. Ency. of P. and P., Vol. 4, p. 803.

Under Code of Practice, Art. 131, the courts of this State are given power to punish all contempts of their authority, limiting the fine to fifty dollars and imprisonment to ten days, “/or each offence of that hind.”

And Art. 308 prescribes that if one against whom an injunction is directed violate the same or refuse to obey, he may be imprisoned for not exceeding ten days which sentence may be repeatedly inflicted until the mandate of the court is obeyed.

There is no conflict between these two expressions of the law. 36 An. 945.

The words in the first article “ for each offence of that kind,” and those of the second article, “ which sentence may be repeatedly inflicted,” etc., are interchangeable terms. Under the provisions of the first article, without the special direction of the second, punishment by imprisonment for violations of injunctions can be repeatedly inflicted until the order is obeyed. So, too, a fine may be imposed for violating an injunction, under the terms of Art. 131, though Art. 308, relating specially to injunctions, is silent on the subject. 36 An. 945. The two articles are laws in pari materia and to be construed together. C. C. 17. There was no intention on the part of the lawmaker to draw a distinction between contempts in violation of injunctions and contempts in violating any other order of court.

This court said in the Schoenhausen case, 47 An. 701: “The penalty of ten days’ imprisonment was fully authorized. The defendant has served his imprisonment of ten days. For any further violation of the preliminary or modified injunction, he may be punished as the occasion arises.”

So, in the instant ease, the law justified the imprisonment of ten days and the fine of fifty dollars inflicted on the executor for refusing to obey the order of the court. He paid the fine and suffered the imprisonment, but still' refused to obey upon further demand made for compliance. Thereupon occasion arose for a second infliction of the sentence for contempt. It was “ another offence of that kind,” as contemplated by C. P. 131. As correctly observed in the Schoenhausen case, “the law means punishment for the offence at the outset, and punishment afterward for the repetition.”

If the first sentence of fine and imprisonment and the undergoing of the punishment thereof is to be the end of the matter, then indeed might it be easy of accomplishment for dishonest representatives of successions, or minor heirs, to appropriate the estates or funds passing into their hands, suffering but small inconvenience for their act of spoliation. The law never contemplated this result.

We are constrained to hold that it was upon an erroneous construction of a question of law and practice that respondent judge declined to go into the merits of the second contempt proceedings presented to him and dismissed the same.

It is therefore ord'ered that the writ of mandamus applied for be made peremptory, that the petition and order for rule to show cause filed by the relators on October 9, 1897, in the Succession of William Heffner, No. 4885 on the docket of the District Court of Caddo parish, be reinstated, and that proceedings in trial and determination thereof on the merits be had according to law.

Mr. Justice Breaux — I dissent.


author: Breaux, J.

text:
    No. 12,774.
    State of Louisiana ex rel. William Henry Stuart vs. Hon. T. C. Ellis, Judge, and Celina M. Burkhardt.
    The wife obtained a judgment of separation from bed and board, but did not apply for alimony prior to the judgment.
    After judgment of separation from bed and board, proceeding by rule for alimony, being an accessory to the principal demand is permissible.
    Pension is due during the marriage. The marriage ties are not dissolved by the decree of separation from bed and board.
    QN APPLICATION for Writs of Prohibition and Certiorari.

      J. Q. Flynn for Relator.

      Simeon Belden for Respondent.
    Submitted on briefs March 21, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Breaux, J.

- This was an application for writs of prohibition and certiorari.

The grounds of the application are :

1. That after judgment of separation from, bed and board proceeding by rule for alimony is not permissible.

2. That alimony can be allowed the wife only prior to such a judgment.

The facts are that a judgment of separation from bed and board was recently pronounced in favor of relator’s wife, to whom in the judgment the court also gave the care and custody of the children of the marriage.

From this judgment the defendant’s husband, relator here, has not taken an appeal.

After the judgment of separation from bed and board had been rendered, the wife of relator filed a rule for alimony, which was allowed, for part of the amount which was asked by her.

The judge of the court a qua who is the respondent here, properly held that the judgment of separation is not final and did not have the effect of annulling the marriage; that plaintiff in the ease of the wife against the husband, which resulted as before stated, was still, despite the separation from bed and board, the wife of the defendant. He for these reasons made the rule absolute for ten dollars per month, from October 3, 1898, to March 3, 1898, and at the rate of twenty-five dollars per month from March 3, 1898, until the further order of the court and for costs.

The relator seeks to have this judgment reversed and vacated.

We take it that no one will deny that a rule is the proper action during the progress of a contestation, in matters incidental to the principal demand. The proceeding by rule in such incidental matters is expressly allowed by the rules of practice. It is left for us to determine whether the wife’s rule for alimony was filed as an incident of the main demand, for in that case the process by rule is proper.

In our mind the judgment of separation from bed and board is not a final proceeding. The relation of husband and wife still exist.

A reconciliation may put an end to the judgment. If no reconciliation take place, it may serve as a basis for a divorce at the end of one year. The twelve months’ grace is given by law, as we appreciate, to find out if there will not be a change for the better, and possibly avoid the necessity of forever dissolving marriage ties which should never be dissolved, save when there is ample evidence that the marriage, instead of being.a blessing, is the reverse.

During the twelve months of moral trial, an application by rule to show cause why alimony should not be paid may well be considered as incidental to the suit in which was rendered the judgment for separation from bed and board. The proceeding until the divorce is in character provisional, and may include a rule for alimony as needful to carry out the object of the law in allowing the separation from bed and board.

Our conclusion being that the proceeding by rule was permissible, we pass to a consideration of the next objection raised.

This objection is founded upon the hypothesis that the plaintiff hap no right whatever to alimony; after her demand had been granted and a judgment of separation from bed and board entered, that all of her rights to date had been passed upon. That now the allowance of alimony would in effect amend the judgment which had been rendered without granting alimony. It is clear in our judgment while the relation of husband and wife exist, after the demand of separation from bed and board, and until the matrimonial ties are severed or a reconciliation had taken placie, the right to alimony is a continuing right. It was not terminated, ended or destroyed by the judgment silent upon the subject. Plaintiff was entitled to moderate allowance for support and maintenance during the twelve months.

We have found no decision after some search bearing directly upon the point now before us for determination.

As an original proposition; without the assistance of any decision, by this court, interpreting the articles of the Civil Code upon this subject, we arrived at the conclusion that alimony was allowable to plaintiff.

The particular point not having been previously presented here, we compared the articles of our Code on the subject of alimony and found that they correspond with those of the Code of France upon that subject.

Tbe Court of Cassation interpreting these articles determined correctly as we think that it is not a new demand after judgment; that it is not concluded by the judgment, but an accessory of the principal demand. Fuzier and Hermann, Code Civil Annoté, Vol. 1, p. 361, No. 62.

The commentators are positive in their comments.

In case of the separation from bad and board, says Baudry-Lacantinerie, p. 369, Vol. 1, in his work entitled “ Droit Civil,” a consistent jurisprudence recognizes the right of alimony between the spouses, for the reason that the decree, unlike the decree of divorce, does not absolutely dissolve the marriage ties.

Under-another heading of the same book, this jurist reaffirms that the right, despite the decree of separation, remains to claim the pension.

From Laurent, Vol. 3, p. 302 (Droit Civil) we translate: The spouses separated from bed and board owe aid to each other during the marriage, and consequently until the decree of divorce is pronounced.

. We have not anywhere found different views expressed. Our views accord with the cited cases and the opinion of the illustrious French jurist. In consequence it only remains for us to affirm the judgment of the District Court.

It is therefore ordered, adjudged and decreed that the rule nisi be vacated and discharged and the demand of relator for prohibition and certiorari rejected at relator’s costs.


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    No. 12,746.
    Edward Whaling vs. John Wells.
    Action sounding in damages for malicious prosecution.
    Dismissed by court below on exception of no cause of action, on the ground that the ruling of the committing magistrate, remanding the accused, or placing him under bond, for trial before the District Oourfc instead of discharging him, was evidence of probable causey and this appearing from the petition it precluded recovery.
    Reversed and remanded, tne court holding that the commitment to appear for trial is but prima facie evidence of the existence of probable cause.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. J. Wagicespack for Plaintiff, Appellant.

      E. 8. Whitaker for Defendant, Appellee.
    Submitted on briefs March 25, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This is an action for malicious prosecution. Damages are laid at ten thousand dollars.

The substantial averments of the plaintiff are:

That in March, 1896, defendant caused his prosecution on the charge of breach of trust and embezzlement, with intent to cheat and defraud, under Sec. 905 of the Revised Statutes.

That the affidavit was made before the recorder’s court of the city of New Orleans, from which the writ of arrest issued.

That he was brought before the recorder, sitting as a committing magistrate, and was committed to appear before the Criminal District Oourt of the parish of Orleans under a bond of five hundred dollars, which he was unable, at first, to furnish and was lodged in the parish prison, where he remained five days when he was released, having meanwhile procured a bondsman.

That, subsequently, .the District Attorney filed an information against him on the charge referred to, based upon the affidavit made by the defendant.

That he was tried before a jury on this information; the charge was found to be frivolous, and the prosecuting officer himself requested the jury to return a verdict of not guilty, which they did without leaving their seats.

That the defendant knew the affidavit made against him (plaintiff) was false; that he had no probable cause for making same; and that the prosecution was wantonly wrongful, illegal and malicious, done for the sole purpose of vexing, humiliating and injuring plaintiff.

Defendant appeared and filed an exception of no cause of action, which was sustained and the suit dismissed.

Plaintiff appeals.

It is a familiar rule of practice that for the purpose of the trial of an exception of no cause of action, all the allegations of the petition are taken as true.

We think the allegations of this petition disclose a cause of action.

The trial judge did not state the grounds upon which he sustained the'exception, but we gather, from the briefs of counsel, that it was because of the action of the recorder in committing the accused for trial instead of discharging him, and from this it was held that probable cause was shown, and this appearing from the petition, it precluded recovery.

We do not think the allegation in the petition, that the Recorder committed the accused to appear before the Criminal Court, a sufficient showing of probable cause for the initiation of the prosecution, to justify the ruling that the complaint disclosed no cause of action.

The commitment to appear for trial was prima facie, not conclusive, evidence of probable cause. A. and E. Ency. of Law, Vol. 14, p. 67.

It has frequently been held that the discharge of an accused person by a committing magistrate is prima facie evidence of the want of probable cause and shifts the burden of proof on the defendant sued for malicious prosecution. Brown vs. Vittur, 47 An. 607; Bornholdt vs. Souillard, 36 An. 103; Plasson vs. Lottery Co., 34 An. 246.

The same reasoning justifying the conclusion reached in those cases sustains the converse of it, viz.: that the commitment by the magistrate is but prima facie evidence of the existence of probable cause.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the cause be remanded to the lower court to be proceeded with according to law —costs of appeal to be taxed against defendant and appellee.


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    No. 12,733.
    Succession of Manuel Fernandez and Mrs. Maria Matea de la Rosa, Widow of Manuel Fernandez—Consolidated.
    The administrator of the wife’s separate estate is without authority to have community property sold, particularly as it does not appear that it was for the purpose of paying debts of the community.
    The settlement of the wife’s estate (different from the husband’s) does not involve a settlement of the community; and therefore the executor of her estate is without warrant for assuming control of property held in community.

      The heirs had not been notified, and do not appear to have consented to the sale of the community interest inherited by them from their father’s estate.
    A PPEAL from the Civil District Court for the Parish of Orleans. IX. • Théard, J.

      James B. Rosser, Jr., and Mark R. Newhauser for Dative Testamentary Executor, Appellee.

      Frank Zengel for Mrs. Widow Antoinette Janvry, Defendant in Rule, Appellant.
    Argued and submitted March 25, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court wa.s delivered by

Breaux, J.

This was an appeal from a judgment rendered to compel Mrs. Antoinette Janvry to accept title of property adjudicated to her.

The defendant in rule admits that she became the adjudicates of the property, but she refuses to take the title tendered: because it is not a legal title.

The objection to the title is grounded on the fact that the property described in the application for the sale was owned,-as to one-half, by Widow Maria Matea de la Rosa, and the other half by the succession of her predeceased husband, Manuel Fernandez. He (the husband) died in 1876.

His succession was opened the same year, in the late Second District Court. His widow became the executrix of his testament, and had an inventory taken.

She remained in possession of this property; it was community property.

She died in 1896, intestate. Her succession was opened for settlement.

Subsequently, the successions were consolidated under an order of court.

The heirs of the two successions are the same. In the petition to sell the property, the testamentary executor of the estate of Mrs. Maria M. de la Rosa alleged that in order to execute the provisions and bequests of her last will, it was necessary to sell the real estate belonging to the estates of Mrs. Maria Matea de la Rosa, and the property of the late Manuel Fernandez.

The property, was not sold to pay debts. The heirs of the late Manuel Fernandez are not before the court and were not cited.

From a judgment condemning the adjudicatee to accept the title tendered, the defendant in rule prosecutes this appeal. It is clear in our view that the consolidation of the estates did nob have the effect of vesting the executor as relates to tne sale'of the property with greater rights than he would have had without; the consolidation.

The succession of the husband, we have seen, had been opened many years prior to the death of the wife.

It was said -at bar, in argument, that she was the usufructuary of the community. At her. death the usufruct came toan end. For the purpose of the sale of the property and the settlement of the succes - sion, it, the usufruct or possession of the late Widow Fernandez, did not any more vest the executor with seizin than did the order consolidating the two estates. The heirs became the complete owners of one-half of the property. The executor of the succession of the wife was without authority to divest them of their right as owners of the property inherited by them from their father, who had died many years prior to their mother’s death.

The succession of the father was separate from the succession of the mother. The executor of the latter was not by his letters of executorship entrusted with any. other settlement than that of Mrs. Fernandez. The question of representation (ex necessitate rei) does not arise. The succession of the husband can be, and should be, settled as a succession of itself. There is no necessity for a joint settlement through the agency of the executor of the wife’s estate.

It would be different if the executor represented the husband’s estate; the husband is the head and the master of the community.

He has administration of its property, and controls its revenues..

The wife, only has a residuary interest at the dissolution of the community. She owns no particular property of the community until payment of the debts. She may, if she chooses, at its dissolution, renounce it entirely. It is different with the administration, of the husband’s succession. His estate is bound for the debts contracted while he was master of the community.

The community is a part of the mass of his succession. Lawson vs. Ripley, 17 La. 249.

The court said in Succession of McLean, 12 An. 224:

“It is thus evident that the administration of the succession of the deceased husband involves with it the administration of the community.”

It is in our view clear that executors, administrators and the creditors of the community, who may represent creditors, have an interest in looking to the payment of debts of the community. But the succession of the wife is not involved as in case of the succession of the husband with the administration of the community in which she had no interest as an owner until the debts are all paid.

It is manifest that the administration of the husband’s succession involves the administration of the community. Durham vs. William, Tutor, 32 An. 962. This view was affirmed in Berthelot vs. Fitch, 45 An. 391. A similar view was expressed in Succession of Lamm, 40 An. 312, in a carefully prepared opinion.

This rule on the other hand does not recognize that the executors and administrators of the wife’s succession have the same authority.

It has been clearly decided that the settlement of the wife’s succession does rot involve the settlement of the community. The matter received, as relates to the latter only, the most careful consideration of this court in Verrier vs. Sheriff, 48 An. 724. The following is an excerpt from the opinion: “This administration involves the right of the wife’s succession representative to take any and all necessary proceedings against the surviving husband for the collection of any indebtedness of a community to her separate estate; but it does not confer upon him the power to make sale of property of the community for that purpose in her succession.”

The power which this court decided did not exist, in the case •from which we here just quoted, is the power which the plaintiff in rule here seeks to have recognized.

In Hewes vs. Baxter, 46 An. 1284, we held that the community property did not at its dissolution enter into the possession of the executor of the wife’s succession.

Precedents sustain the position that the settlement of the husband’s succession involves the settlement of the community; and that the executor, or the administrator of his estate for the purpose of this settlement represents the community.

Bat precedent does not sustain the position that the settlement of the wife’s succession involves the settlement of the community.

The decisions as relates to the latter case are clear enough and leave no ground for question.

The differences as set forth in the decisions upon the subject is owing to the fact that the interest and responsibility of.the husband, as head of the community, is greater in some respects than the wife’s, and in consequence when it is dissolved by death the authority of the executor to represent the succession of the husband is recognized as greater, and as having broader scope than the authority of the executor of the wife’s estate as relates to the community.

The affirmance of the judgment appealed from would give no title, to the property.

The heirs not being represented, and not being in any respect parties, would remain unaffected by our decree.

It is therefore ordered, adjudged and decreed that the judgment appealed from is reversed, annulled and avoided; that plaintiff’s rule be dismissed.


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    No. 12,664.
    E. K. Clover vs. Joe Gottlieb.
    1. After being put in mora by written demand, followed by the filing of a suit to rescind, the ofter to execute by the obligor of a contract comes too late.
    2'. Charges in defendant’s answer of violation of the terms of the contract by plaintiff, and basing thereon reconventional demand for rescission and for damages, is inconsistent with offer to perform made previously.
    3. One seeking relief through rescission of a contract must first offer to restore his adversary to the situation he was in at the time the contract was entered into.
    APPEAL from the Fifteenth Judicial District Oourt for the Parish of East Baton Rouge. Brunot, J.

      J. A. Addison for Plaintiff, Appellant.

      Thomas J. Kernan and Sami. G. Laycock for Defendant, Appellee.
    Argued and submitted December 28, 1897.

      Opinion handed down January 24, 1898.
    Rehearing refused April 18, 1898.
   The opinion of the court was delivered by

Blanchard, J.

In April, 1896, plaintiff and defendant entered into an agreement, evidenced by an instrument under private signature, by which the latter engaged to sell to the former a tract of land containing two hundred and twenty acres near the city of Baton Rouge, known as the “Howell Place.”

The price stipulated was five thousand seven hundred and twenty dollars. Fourteen horses, to be taken at one thousand dollars, were to be delivered to the seller. On March 1, 1897, there was to be a cash payment of seven hundred and fifty dollars, and another of five hundred dollars on January 1, 1898. The remainder of the price was to be paid in one, two, three, four and five years from January 1, 1897.

The buyer agreed to ship, the horses (which were in Illinois) to the seller at once, and in the event of his failure to meet the cash payment of seven hundred and fifty dollars on March 1, 1897, they (the horses) were to be forfeited to the seller as liquidated damages for breach of contract.

It was stipulated that the buyer was not to interfere with the tenants on the place during the current year 1896, but that he was to have the use of all other lands and timber not rented for the year 1896, and to have full possession by January 1, 1897.

Another stipulation was “ that the rent of the two hundred and twenty acres for the year 1896 shall be paid to the said Gottlieb as part payment on the purchase price.”

This agreement to sell was to be effective until March 1, 1897, when a formal act of sale was to be executed, provided the buyer-paid the seven hundred and fifty dollars stipulated for on or before that date.

When this contract was made Gottlieb was not the owner of the property he proposed to sell. Whether the buyer was aware of this or not does not appear.

Five days later, on April 20, 1896, Gottlieb secured from- ,the owners, Barrow & Mercier, in .writing, an agreement to sell to him, or to any one he might indicate, the property which had been the object of his previous agreement with plaintiff.

The agreement by Barrow & Mercier stipulated to sell “ at any time before March 1, 1897, for the sum of three thousand three hundred dollars,” of which seven hundred and fifty dollars should be paid in cash when the sale was formally consummated; the balance in one and two years. Should Gottlieb pay the seven hundred and fifty dollars by March 1, 1897, he was to have the rents of the place for 1896. He stipulated for the right of using the lands not rented for 1896 and the timber thereon, and also that he was to have a commission of five per cent, on the agreed price, whether buying for himself or for another.

Neither of these agreements to sell and buy were registered in the conveyance records. It does not appear that plaintiff was ever informed of the existence of the one executed by Barrow & Mercier to the defendant, and up to the time this litigation began there had been no formal transfer of the title to the latter. It still stood in the name of Barrow & Mercier.

Pursuant to the agreement between plaintiff and defendant a lot of horses were shipped to the latter, who received them in May, 1896, took possession and sold them.

On the 1st of January following, the time when full possession of the Howell place was to be given to plaintiff, he was not put in possession, and, so far as the public records showed, defendant himself had at the time neither possession nor title.

Several times prior to the institution of this suit verbal demand for possession was made by the plaintiff and his attorney upon defendant without avail, and then, on the 16th of January, 1897, a formal demand in writing for possession was made.

This was followed two days later by the present suit filed January 18, 1897. The next day defendant called with witnesses on plaintiff and formally tendered possession and full compliance with the terms of the agreement.

Plaintiff replied that it was too late; that the matter would have to take its course in the courts.

While the suit had been filed the day before, it seems that service of citation had not actually been made upon defendant at the time. It wás made later the same day.

When defendant tendered possession to plaintiff on January 19, 1897, he said nothing whatever to him in regard to the horses which had been delivered by plaintiff; no claim was made at that time by defendant that the delivery of horses was short or insufficient, and no demand then or prior thereto was asserted to make good this shortage.

Not until developed in the defence of this action was it insisted that plaintiff’s delivery of horses was not up to contract requirement, and, therefore, was cause for non-compliance by defendant with his obligati on to deliver possession of the place on January 1, 1897,

If plaintiff was deficient in his delivery of horses, he was not put in default by defendant in reference thereto as a condition precedent to the claiming of damages or rescission of the contract.

The shortage of one horse was accounted for by the fact that one Humphreys, claiming to act for defendant, traded in Illinois, before the horses started southward, three of the Olover horses for two of another lot. Defendant admits that he raised no objection to this act of Humphreys when informed of it.

Another horse died in transit. Plaintiff claims to have accounted for its value to defendant in paying the freight on the shipment of horses; that the freight bill was a charge against defendant, but that he only called upon defendant for its amount less the estimated value of the dead horse — he (plaintiff) paying that much of the freight bill himself.

Defendant, on the other hand, insists that under the contract the freight on the horses was to be paid by plaintiff, and we are inclined to construe the agreement that way.

When the horses reached Baton Rouge there was a contention to the effect that one horse was short still, and it was searched for,, but this appears to have been abandoned by defendant, who took possession of the horses (thirteen head in all, counting two colts), used them and sold them, and never thereafter applied to plaintiff to make good any supposed shortage as to number and quality of animals delivered under the contract.

This being so, .it does not lie in the mouth of defendant to assert, as he did in his testimony, that he did not receive this delivery of horses as a discharge of plaintiff’s contract obligation in regard thereto.

Having delivered the horses, and the sanie having been accepted by defendant, plaintiff was not to be considered in default unless he failed to meet the payment of seven hundred and fifty dollars, due March 1, 1897. Should he fail to meet that payment, then, under the terms of the agreement, defendant was to retain the horses as liquidated damages.

The next step under the contract, after delivery of the horses by plaintiff, was to be performed by defendant. He was to deliver plaintiff full possession of the tract of land on January 1, 1897. He failed to do this and was put in default therefor, both, by written demand and by the institution of this suit, seeking rescission of the contract because of non-execution of its stipulations by defendant.

After this demand and after the filing of the suit, the offer to execute by defendant came too late. 24 An. 236; 8 R. 161; 20 An. 292; 38 An. 773; Toullier, Vol. 6, p. 253, No. 246; Ib., No. 255.

Defendant meets the suit with charges'of violation of the terms of the contract by plaintiff, asks its rescission because thereof, and for damages.

This is, in effect, a reconventional demand.

The inconsistency of this pleading with the offer to perform made just after the suit was filed is apparent.

Besides, a party seeking relief through rescission of a contract must first offer to restore his adversary to the situation he was in before .the contract. 1 Hen. Dig., p. 1020, No. 19.

Defendant could not keep the property and the horses also. The latter were to be forfeited to him only in the event plaintiff failed to meet the payment due March 1, 1897, which time had not then come around.

Before it did, defendant, by failure to keep the engagement as to possession of the land, produced a condition justifying this suit for rescission.

We hold that plaintiff’s right to sue for rescission legally existed at the time the suit was filed, and that he, not defendant, is entitled to the judgment of rescission.

This carries with it the right to have an accounting with defendant for the horses delivered to him.

The question arises, does defendant owe plaintiff the price at which he agreed in the contract to take the horses (one thousand dollars), or does he owe him merely the horses themselves, or their value as ascertained by what they were worth on the Baton Rouge market?

We think the ends of justice best subserved by holding the latter.

Both parties ask abrogation of the contráctil toto. We will grant it, both as to the tract of land and as to the stipulated price of the horses.

This will leave defendant holding possession of eleven horses and two colts belonging to plaintiff.

But the horses having been disposed of, defendant must account for their value.

We find from the evidence that nine horses and two colts sold for five hundred and sixty-five dollars. Two horses appeared to be still on hand when this suit was tried below. They may not be on hand now, so we will estimate them at fifty dollars each, the least price for which any of the horses sold.

We thus find six hundred and sixty-five dollars as the value of the horses, from which must be deducted ninety-six dollars paid as freight by defendant on the shipment of horses, held to be a charge against plaintiff and not against defendant.

This will leave a balance of five hundred and sixty-nine dollars due plaintiff. We do not think defendant entitled to credit for expenses claimed on account of the keep of the horses, etc. The use of the horses and interest on the money for which they were sold would set off such claim, even were it a just one.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that there be judgment in favor of plaintiff against defendant, canceling and rescinding the agreement to sell certain lands situated in the parish of East Baton Rouge, entered into by the parties hereto on April 15, 1896.

It is further ordered and decreed that the plaintiff, E. K. Olover, do have and recover from defendant, Joseph Gottlieb, the sum of five hundred and sixty-nine dollars, with five per cent, interest per annum thereon from the date of the filing of this suit in the lower court, together with costs of both courts.


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    No. 12,809.
    W. T. Pegues, Tax Collector, vs. O. P. Ray.
    1. A commercial drummer, or canvasser, who goes out on the road soliciting orders for his house, whether it be located in or out of the State, and who takes with him samples of the goods or wares his house deals in, is not a “ traveling vendor ” with in the meaning of Sec. 13 of Act No. 150 of 1890.
    2. A business house, located in one of the towus or cities of the State, taking out the necessary licenses there, may send its drummers or canvassers out, with samples, to take orders in other towns and parishes without becoming subject to the payment oE a State, parish or municipal license in such other towns and parishes.
    3. The negotiation here of sales of goods which are in another State for the purpose of their introduction in this State is interstate commerce.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      J. W. Parsons (Charles Wheaton Elam of Counsel) for Plaintiff, Appellee. ■

      Wise & Herndon for Defendant, Appellant.
    Argued and submitted May 17, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The Wrought Iron Range Company, a corporation domiciled in the city of St. Louis, Missouri, is engaged in the business of the manufacture and sale of cooking stoves and ranges.

It sent agents to Shreveport, Louisiana, engaged a warehouse or place of'business there, and shipped hither in carload lots its wares.

The ranges thus consigned to the Shreveport house were shipped in original packages, remained in such packages, and as sales were effected or orders received for goods they were delivered in the original packages to the purchasers.

A State license for the occupation of retail dealer in stoves and ranges was taken out at Shreveport.

The company sold goods at retail in the house at Shreveport and put drummers in the field to canvass the parishes of that section of the State.

Defendant herein, O. P. Ray, was sent to De Soto parish and under him were several canvassers, who were dispatched through the parish to solicit orders. As orders were taken they were sent in to Ray at Mansfield, the county seat of the parish, who forwarded the same to R. F. Dixon, the general manager of the company 'at Shreveport, and he would fill the orders by shipping the goods in the original packages to Ray at Mansfield, and on their receipt Ray would load the stoves, without breaking the packages, on his delivery wagons and deliver the same to the parties giving the orders.

Ray and the drummers under him were in the parish temporarily only.

The drummers, or soliciting agents, each used a wiagon with a stove and its attachments therein as an exhibit or sample of the kind and quality of goods they were drumming for. No stoves were sold from the wagons of the canvassers.

They took orders only for subsequent delivery by other parties in the employ of the company.

No large stock of the ranges was kept in the warehouse at Shreveport, but new supplies were ordered by Dixon from the manufactory at St. Louis as needed.

The business was started at Shreveport in 1897. Ray and the canvassers under him began soliciting orders in De Soto parish in February, 1898, and by the twentieth of the month thirty-four orders had been taken.

The tax collector of De Soto parish demanded of Ray the payment of a license tax and took the present proceeding to enforce its payment.

The proceeding is summary in character under the provisions of Sec. 18 of Act No. 150 of 1890, which authorizes action by rule to show cause within five days why the license claimed should not be paid, etc.

The petition of the tax collector, mover in rule, sets forth that the defendant is a traveling vendor of stoves and ranges, selling and delivering his wares throughout the parish as agent for the Wrought Iron Range Company of St. Louis, Missouri, and that as such he owes a license of two hundred dollars to the State and parish, which has been demanded and refused. He asks judgment making the rule absolute and condemning defendant to pay the license, with penalties, etc.

The statute under which the tax collector proceeds is Sec. 13 of Act No. 150 of 1890, and is as follows:

“ That all traveling vendors of stoves, lightning rods and clocks shall pay a license annually of two hundred dollars in each parish of the State.”

Defendant resists the.payment of this license on the ground (1) that he is the agent and representative of the Wrought Iron Range Company, which is authorized to conduct a mercantile business at the city of Shreveport; and, if this defence be not good, (2) that the attempt to impose this tax upon him is an interference with interstate commerce and repugnant to the third paragraph of the eighth Section of Art. 1 of the Constitution of the United States.

The trial judge held that defendant and the canvassers under him are peddlers, and not merchants in the ordinary sense of the word; that they are “ traveling vendors,” within the meaning of the statute, notwithstanding the warehouse, or place of business, or depot of supplies at Shreveport; and that having such establishment in the State, their goods, when shipped here, become liable to the tax laws of the Stated

Prom a judgment against him defendant prosecutes this appeal.

A commercial drummer, or canvasser, who goes out on the road soliciting orders for his house, whether it be located in or out of the the State, and who takes with him samples of the goods or wares his house deals in, is not a “ traveling vendor ” within the meaning of the statute quoted.

“ Traveling vendor ” is synonymous with “peddler.” A traveling vendor is a peddler on an enlarged scale. The term seems to convey that idea. Nevertheless he is a peddler because he carries wares which he sells and delivers at the same time, going from place to place for the purpose.

Webster’s dictionary defines a peddler as “a traveling trader; one who carries about small commodities on his back or in a cart or wagon and sells them.”

Bouvier’s Law Dictionary says :

“A peddler is a person who travels about the country with merchandise for the purpose of selling-it.”

And Anderson’s Dictionary of Law declares him to be “a person wlio travels from place to place and carries about with him on horseback or in a vehicle articles of merchandise for sale.”

A traveling vendor, then, is one who carries about with him the articles of merchandise which he sells. That is to say, the identical merchandise he sells he has with him- and delivers at the time of sale.

His vocation is quite different from that of the drummer, who carries only samples of his wares as exhibits, and takes orders for the future delivery of merchandise of their kind and quality, or of similar kind and quality.

The statute under consideration imposes no license on the drummer with his samples taking orders, w'hile it does on the traveling vendor of certain kinds of goods.

Tax laws are to be construed strictly. Defendant) and the canvassers under his orders were all employees of the Wrought Iron Range Company. This company was the vendor, the parties referred to its salesmen. They took the orders and transmitted the same to the company, who shipped the goods to fill the orders. In soliciting orders they did not carry about with the.m the goods actually sold. The evidence is the reverse. It is true, in two instances orders were taken for ranges where delivery was made on the same day. But this is explained by defendant’s statement, that his men had previously taken several orders for ranges, which he (defendant) had ordered from the Shreveport house to fill, but two of the parties were, on inquiry, found to be irresponsible, and, in consequence, delivery to them was refused, and having the two ranges on hand at Mansfield, they were delivered immediately to two other parties, whose orders were substituted for those declined. Besides, even in these instances, the drummers who took the orders did not have the ranges with them, and the delivery was made by other parties. In all the other cases of orders taken, a period of sixty days for delivery was stipulated for, though, as a matter of fact, the delivery was made much sooner, for the distance is not great to Shreveport, where the stoves were in stock, and the trains passed to and fro each day.

Nor does the fact that because defendant, as agent of the selling company, undertook to deliver the stoves in his wagons at the homes of the purchasers necessarily bring him within the definition of “ traveling vendor.” The facts, as disclosed by the evidence, do not make out that kind of a case.

The crucial facts are, the orders were taken by the drummers who merely had samples of the goods sold, these orders were filled from the Shreveport house, and the goods were shipped to the depot at Mansfield. From there they were, pursuant to agreement, transported by defendant’s or the company’s wagons to the place designated.

It can not be said, under these circumstances, that the ranges were incorporated into the general mass of property in the parish of De Soto prior to their delivery, so as to make them subject to taxation there in the hands of the company’s agents.

They only became so incorporated after delivery to the parties purchasing. See McClellan, Tax Collector, vs. Pettigrew, 44 La. An. 357.

It may be that the stock of these goods kept at Shreveport became incorporated in the general mass of property of that parish, and became subject to taxation there. But that can not avail plaintiff, who is tax collector of another parish. A tax was imposed at Shreveport, a State license to do business was taken out there, and the presumption is that the company’s stock of goods went on the assessment rolls there for ordinary ad valorem taxation.

A business house located at the city of Shreveport, taking out the necessary licenses there, may send its drummers and canvassers ouc with samples to take orders in other towns and parishes without becoming subject to the payment of a State, parish or municipal license in such other towns and parishes. If it were otherwise, the enterprising practice of sending drummers out from the large cities would be broken up, thousands of persons thrown out of employment and trade, and commerce greatly impeded.

If it be true, as intimated by our learned brother of the court a qua, this house at Shreveport was only a warehouse for the storage of goods, and its existence and maintenance there did not make the company, and defendant, its employee, merchants in the ordinary sense of the word, then must these goods, kept in the original packages, be held objects of interstate commerce in the strictest sense of that term, stopping merely at Shreveport on their way to a delivery destination contracted for by persons engaged in introducing in this State articles of goods manufactured in another State.

The negotiation here of sales of goods which are in another State for the purpose of their introduction in this State is interstate commerce. And this court said, through Mr. Justice Watkins, in Simmons Hardware Company vs. Sheriff, 39 La. An. 853: “Tf the person sought to be taxed, or of whom a State license is required, be one who is merely passing through the State, or one coming into it for the temporary purpose of selling by sample goods to be imported from another State, or if the goods, the sale of which is thus negotiated, are imported into the State from another State and not yet become a part of the mass of property therein, neither the person nor property have become subjected to the taxing power of the State, and any State law imposing such a license tax is repugnant to the Federal Constitution and void.”

The principle thus announced is sustained in a long line of decisions by the Supreme Court of the United States, beginning with the early and leading case of Brown vs. Maryland, 12 Wheat. 419, where it was luminously stated by Chief Justice Marshall himself, and extending down to Brennan vs. Titusville, 153 U. S. 289, among which decisions should be especially noted that of Robbins vs. Shelby County Taxing District, 120 U. S. 489.

Our conclusion is defendant is not subject to thelicense tax sought to be imposed, and, accordingly, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and plaintiff’s demand be rejected at his costs in both courts.


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    No. 12,777.
    William Drews et als. vs. Frank B. Williams.

      Enjoining a Member of a Partnership. — The injunction against a partner of a commercial firm had the effect of enjoining the partnership.
    The partnership, though not made a party defendant, save to the extent that the partner enjoined may have represented the firm, had a right of action to recover damages occasioned by the injunction.

      Prescription. — The date the injunction was sued out is not the date from, which prescription of claims for damages caused by continuing acts begins to run. The prescription begins to run from the time the damage was committed by the continuing acts, and not from the date of the injunction.

      On the Merits — Costs of “Float” of Saw-logs and Cost of “Pull-boating.” — The difference in the costs of floating “ saw-logs” in the swamp in shallow water and “pull-boating” them was inconsiderable. The amount was not shown with any degree of certainty.

      Trees Deadened — Damages therefor. — The sap-wood of a tree circled and deadened loses value after a time. The injunction prevented their removal after they had been deadened, and in consequence, after years, caused loss in value. The sap rot is deducted in commerce.

      After having considered the items of damages, the court reduced by one-half the amount allowed by the judgment of the District Court.
    APPEAL from the Twenty-fourth Judicial District Oourt for the Parish of St. Mary. Allen, J.

      Edward Simon and Branch K. Miller for Plaintiffs, Appellants.

      D. Gaffery & Son for Defendant, Appellee.
    Argued and submitted May 3, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sued the defendant to recover damages growing out of an injunction which was dissolved on the ground that it had been illegally granted on defendant’s application.

The defendant Williams, in March, 1893, brought suit against the plaintiff, Gus Drews, in the District Oourt for the parish of St. Mary, claiming swamp lands described in his petition. Drews reconvened and obtained a recognition of his title as owner of the land.

About the time that Williams brought suit in St. Mary parish for these lands, he obtained an injunction from the District Oourt of Assumption, enjoining Gus Drews and his employees from trespassing upon the lands of which he claimed ownership. These lands were situated in Assumption. Gus Drews was a resident of the parish of St. Mary, where he was sued. Williams allowed the injunction to remain in force some time after it had been decided that he was not the owner of the lands.

Drews, in May, 1896, some time after he had obtained a judgment in the parish of St. Mary, recognizing his title, proceeded contradictorily with defendant Williams, and obtained a judgment dissolving the. injunction and dismissing the suit brought in the parish of Assumption.

The suit now before us for decision was brought by the commercial firm of Drews & Son, of which William Drews and Gus Drews are the members, against Williams, by whom Gus Drews, the owner of the lands, had been enjoined as before stated. It appears that William Drews owned a saw-mill, and that Gus Drews supplied the mill with saw-logs. The operations in the swamps (of which Gus Drews was the owner) and at the mill was carried on for the common benefit of the partners. They were under an ' agreement between father and son; partners in so far as related to the trees on the land.

For the purpose of supplying the mill (in accordance with their contract of partnership) with saw-logs, Gus Drews had made provision to cut down and remove a number of trees from the swamps to the mill of one of the partners (William Drews), operated as before stated.

He was enjoined, we have just stated, from cutting down and removing the tiees, and to that extent the partnership was deprived of whatever profit might have- been made if Gus Drews, one of the partners, had not been enjoined.

In his defence to the demand for damges growing out of the injunction suit the defendant, Williams, pleaded the exception of no cause of action, and in the alternative he pleaded a general denial.

The defendant also pleaded the prescription of one year.

In support of his exception of no cause of action counsel urged that the defendant in the injunction suit was Gus Drews, and that plaintiff, William Drews & Son, a partnership, is a body distinct from the members of the firm; that Gus Drews alone had been enjoined, and that it was incumbent upon him, and not the partnership of William Drews & Son, of which Gus Drews was a member, to comply with the injunction.

In support of the second ground of defence (the plea of prescription) he contended that the prescription began to run from the time that the defendant was prevented from cutting and removing his logs, or, if not from that time, from December'2, 1895, the date the injunction was dissolved by the effect of the judgment rendered in favor of Drews against Williams, recognizing the former as the owner of the land from which he had sought to remove trees when enjoined as before stated.

Passing to a statement of the facts on the merits of the ease it appears that a number of cypress trees that Drews & Son intended to cut and float on the land of Gus Drews had been deadened.

The plaintiff alleges, substantially, that there was a float in 1893; and that they would, had they not been prevented by the injunction, have that year floated a large number of trees; that the cost of floating is one dollar and twenty-five cents a thousand, and even less, while the cost of “ pull-boating,” a means of getting saw-logs, when there is no float, is four dollars a thousand. The evidence is •conflicting; the witnesses disagree in their statements — to float -timber in four and five feet of water costs, all say, about one dollar And twenty-five cents. In shallow water it costs much more. Some testify -that it costs even as much as three dollars a thousand. On the other hand the “ pull-boating ” work may vary materially. ■•Some witnesses say it costs as much as four dollars and fifty cents a ¡thousand, and others less than three dollars a thousand.

Jt appears that during the time that the injunction was being litigated, these trees, because of the rotting of the sap, caused by the “deadening,” had lost value, which plaintiff claimed amounted •to six hundred dollars. The evidence disclosed that about four hundred trees were “deadened” in January, February and. March of the year 1893. That timber “ deadened ” when the sap is up in winter will resist sap rotting better than when the sap is down in the spring and summer, that is, when it is below the circular incision made to kill the tree.

In the former case the evidence is conflicting; one and two year* was the time fixed within which the tree will not begin to sap rot; in the latter case three and four years. The amount deducted for sap rot varies; the largest deducted being, it is said, one quarter, And even a third of the value of the trees. In addition plaintiffs aver that before the injunction was issued plaintiffs made “ trails,” pathways and other preparations for the expected removal of the timber. That the injunction had caused this work to be useless, constituting, plaintiff contends, a six hundred dollar item of damages. Another item claimed, in amount five hundred dollars, was for camps established in the swamps where it was proposed to work, and a “ pull-boat ” taken to the place, the use of which was prevented by the injunction. Other items of damages were claimed, amounting in all to six thousand six hundred and seventy-five dollars.

The judgment of the District Court overruled the exceptions; rejected all of plaintiff’s demands, save the items constituting damage* to the amount of six hundred dollars.

From this judgment the defendant appealed

PLEA OP NO CAUSE OP ACTION.

The exception of no cause of action covers the position set forth by the defendant that plaintiff here is a different person in law from Gus Drews, defendant in the injunction, and that the partnership had no right of action for damages, if any grew out of the suit enjoining Gus Drews, and which did not enjoin the partnership.

It is true as asserted by the defendant that in his suit, in which he in Assumption parish enjoined Gus Drews from removing trees, he did not in name enjoin the. partnership. None the less, in our judgment, his injunction must have been depended upon to prevent the defendant in the injunction suit and his firm from cutting down and removing the timber from the lands he claimed as his, and upon which he asserted, in his suits against Gus Drews, that he Drews was trespassing.

It can not be denied, if the defendant Drews in the injunction had attempted to violate the injunction, plaintiff Williams would have had the right to have him brought up before the court for contempt, and had he urged in his defence that he was not a trespasser and was not in contempt because there was a partnership growing out of an agreement between him and his son, we do not think that the court would have sustained the plea. We think he would have been considered in contempt personally and as a partner.

The plaintiff in injunction and the defendant here is not in a better position. To the end of minimizing the damages he can not sustain a position which the defendant in the injunction suit would not have been able to sustain. The defence here has not more grounds than would have had Drews in answer to proceedings for contempt had he violated the injunction.

In our view the rights and liabilities of the members of the plaintiff commercial partnership were the same as the rights and liabilities of the partnership in matter of the trespass alleged. The injunction addressed to one of the partners had the effect of enjoining the partnership. If it had the effect of enjoining one of th* members of the commercial partnership it necessarily enjoined both. The decisions to which our attention was invited do not establish a rule applying in every case involving partnership .rights and liabilities. We are not of opinion that always and in every case the firm «is legal entity, separate and distinct from its members as contended J»y the defendant.

From Lindley on Partnerships, American Edition, p. 6, we quote: “ With partnerships the case is otherwise; the members of these do not form a collective whole, distinct from the individuals composing it; nor are they collectively endowed with any capacity of acquiring rights or incurring obligations. The rights and liabilities of a paronership are the rights and liabilities of the partners, and are enforceable by and against them individually. Si quid sooietati debetur singulis debetur et quod debet soeietas singuli debent.”

In cases such as the one before us, we think that the right and liabilities of the partner enjoined involved the right and liabilities of the firm. It follows, if the firm be damaged by the injunction, the firm had a right of action. The violation of the spirit, though the strict letter of the injunction may not have been disobeyed, is a disregard of the injunction.” High on Injunction, Sec. 1444.

This brings us to the

PLEA OE PRESCRIPTION.

The action is direct for the alleged injury, and is not an action on the injunction bond. The question relates to the prescription of one year. The action was brought for an alleged quasi-offence resulting in injury. The time when the prescription commenced to run is the controverted question here. We have seen that the writ was issued in March, 1893.

The .defendant in injunction was continually prevented from removing the trees from the time it was issued until it was dissolved. In our opinión he is entitled to damages for deterioration of the value of the trees circled and deadened. This damage to the trees has no date during the injunction from which to determine prescription should run.

If there was injury to the trees it increased as time elapsed. There were other losses incurred of a continuing nature. The plaintiff had established lumbermen’s camps, which he lost because prohibited from removing them. It is not shown when the loss became known. As we take it, they were on the grounds when the injunction was issued, and were not on the grounds when the injunction was dissolved. It devolved on the defendant, by whom the plea of prescription was interposed, to show when the camp was destroyed or lost in order to sustain his plea. Prescription runs from the day*the damage was sustained (O. O. 3502), but the pleader must prove that the damages were incurred the year preceding the institution of the suit. De Lizardi vs. The New Orleans Canal and Banking Company, 25 An. 416

The writ was dissolved only in May, 1896. Prior to that time plaintiff in injunction took no steps to have it dissolved. The fact that the petitory action had been decided in favor of the defendant on his reeonventional demand did not render it less imperative on the part of plaintiff in injunction to discontinue his injunction suit and to have the injunction dismissed. He had invoked the machinery of justice to maintain a right and possession; it was for him to actively abandon the proceeding and not for the defendant in injunction to assume that he was no longer commanded not to cut and remove the trees.

We take up the merits for determination.

The advantages of a “ float ” is made apparent, it is true, but it is not made evident that during the high water season of 1893, the “ float ” was ample enough to have been much less expensive than “ pull-boating ” the saw-logs. The difference in costs between the two is not established with certainty. Moreover, the loss incurred by plaintiff was not shown. It may be that the delay resulted in a benefit instead of an injury, but be that as it may, the injury, if there was injury, we infer from the record, was not considerable. It only resulted in delay without injury.

The second item of damages claimed was caused, it was alleged, by the “sap-rotting” of the trees which had been deadened or circled in expectation of a “ float.”

The evidence discloses that trees circled in winter resist the decay longer than those circled in summer. The former resist the decay three or four years, the latter only a year or two, it appears.

The trees of plaintiff were deadened in January, February and March. In the latter month the sap (sewe) is already active in its movements. If the sap-wood ([aubier in French) be severed at that time (March) it stands to reason that the sap-wood will decay at an earlier date than in winter when the tree is not elaborating its sap and nature is at rest. We are Dot informed of the probable number of trees deadened in any particular month. The evidence discloses that usually one-fourth and sometimes one-third of the value of the tree is deducted after the sap has rotted or decayed.

The prescription pleaded does not apply to the whole claim. Trees. that resisted the sap-rot four years were not injured more than one year prior to the institution of defendant’s suit.

The next item was for cutting roads and trailing. They, the roads and trails, it appears, were not completely destroyed and can be restored at no great cost. We have also considered the other items of damages. Plaintiffs have met with some damage, nothing as compared with the amount claimed and not as much as allowed by our learned brother of the District Court.

We think the sum of three hundred dollars is compensation enough for all damages.

It is therefore ordered, adjudged and decreed that the amount of the judgment appealed from be amended by reducing the amount of the judgment from six hundred dollars to three hundred dollars. A# amended the judgment appealed from is affirmed at appellee’s costs.

On Application por a Rehearing.

Appellants in their application for a rehearing aver that there i« absence of any appeal by the defendant and of a prayer here for the amendment of the judgment.

Our decision having reduced the amount of the judgment of the District Court, we sought (after the application for a rehearing had been filed) for an answer by appellee praying for an amendment of the judgment. We found no answer.

We, as relates to an appeal by defendant, found a bond of appeal duly signed, but it is not supported by an order of appeal.

A bond of appeal without an order of appeal can not be of any affect.

This being the case, we are constrained to change to some extent the conclusion at which we arrived in our original opinion.

The law in this particular is controlling. No amendment reducing the amount of the judgment is permissible.

This is so clear that the amendment can be made without granting more than a pro forma rehearing.

The amount involved is small and the question plain.

It is therefore ordered, adjudged and decreed that our original decree be amended, and that the amount now allowed is six hundred dollars with interest, and that the judgment of the District Court is in every respect affirmed. And that all costs of appeal be paid by appellants; in every other particular the rehearing applied for by appellants is refused.