text:
    No. 3109
    Second Circuit
    AARNES v. KAPLAN & SON, ET ALS.
    (December 21, 1927. Opinion and Decree.)
    (February 3, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales — Par. 202; Fraudulent Conveyances — Par. 77.
    One who purchases goods that have been stolen must surrender them to the owner on demand, even though he purchased in good faith.
    C. C. 2452.
    17 R. C. L. 98.
    Weld vs.. Donlin, 13 La. 461.
    2. Louisiana Digest — Fraudulent Conveyances — Par. 74, 97.
    On discovering that property he has purchased was stolen, the purchaser should endeavor to find the owner and restore it to him; and <f he fail to do so the owner coming to the premises where it is in search of it he denies having the property and refuses to permit the search, such purchaser becomes a possessor of the property in had faith and is liable to the owner for its value as having converted it to his own use.
    Seelig vs. Dumas, 48 La. Ann. 1494. Reynolds vs. Riess, 145 La. 155, 81 So. 884.
    Compton vs. Simms, 209 Ala. 287, 96 So. 185.
    Clanton vs. Conway, 63 Fla. 256.
    3. Louisiana Digest — Evidence—Par. 59, 250, 352.
    A claim for money necessarily expended in searching for goods that have been stolen must be established with legal certainty as to each item thereof, showing by direct and positive proof when and how and for what purpose the money was expended.
    Carver vs. Harris, 19 .La. Ann. 121.
    4. Louisiana Digest — Appeal—Par. 568, 571.
    Act No. 273 of 1916 is a police measure and as to whether it has any application in a civil action is not necessary to be decided here, for the reason that as to twenty joints of the pipe claimed by plaintiff defendants converted them to their own use and as to sixteen joints the evidence shows that defendants purchased them in good faith.
    Appeal from the Fourth Judicial District’ Court of Louisiana, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by H. W. Aarnes against M. Kaplan & Son et als.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for defendants, appellants.
    STATEMENT OF THE CASE
    Plaintiff sues defendants, who are dealers in junk, for $1149.96 and legal interest thereon from judicial demand as the value of forty-two joints of 6-inch pipe stolen from him and purchased by defendants in alleged bad faith and for $224.88 alleged to have been necessarily expended by him in searching for his property.
    Defendants admitted purchasing thirty-six joints of pipe but denied getting more and denied knowledge of the theft. They admit refusing to return the pipe to Tullos, Louisiana, whence it was taken, or-to pay plaintiff the $224.88, and alleged that they offered to return the pipe to plaintiff at Monroe, Louisiana, where they got it and that he refus'ed to receive it elsewhere than at Tullos.
    On the'se issues the case was tried and there was judgment in favor of plaintiff and against defendants for $952.64 as and for the value of the pipe and for the $224.88 with legal interest on both amounts from judicial demand. Defendants appealed. In this court defendants moved to remand the case to enable them to introduce newly discovered evidence tending to show good faith on their part in purchasing the pipe.
   REYNOLDS, J.

OPINION

There is no serious dispute between the parties that the pipe defendants admit getting was plaintiff’s property or that it was worth the price alleged. The real con-. troversy is as to whether defendants got forty-two instead of thirty-six joints, whether they bought with knowledge that the pipe was stolen, and whether plaintiff must accept the return of the pipe or may recover its value.

Counsel for defendants say, in brief:

“However, so far as the merits of this controversy are concerned, we think that it may be fairly stated that this record proves that there was stolen from the .plaintiff’s storage place near Tullos, Louisiana, thirty-six joints of six (6") inch pipe, which pipe was sold by the men, King and Greer, to the defendant, Kaplan, at his junk yard in Monroe, Louisiana, the said sale being made at the yard by the said parties who represented themselves to be the owners thereof.”

And they propound the question:

“Was Kaplan an innocent or a guilty purchaser of this stolen property?”

We do not think the evidence sustains plaintiff’s contention that defendants purchased the pipe in bad faith.

And this conclusion renders it unnecessary for us to consider their application to remand the case to enable them to prove good faith.

Nor do we think the evidence shows that defendants received more of plaintiff’s pipe than they admit receiving.

As to the value of the pipe, plaintiff testified that he paid $1149.96 for forty-three joints, which is equivalent to $26.74 a joint; and although the pipe had been used some it was still practically new, and we accept the value put upon it by plaintiff’s evidence.

Plaintiff testified that in March, 1927, he had an interview with David Kaplan, one of defendants, and as to what took place at it he testified:

“Q. Now, at that time, what, if any, admissions or statements • did Mr. David Kaplan .make you regarding the second lot of pipe?
“A. Well, he stated that if I could prove ownership that he would pay for that pipe. I told him that I would not accept it; that they had taken it and I had thought — that is, I felt positive they had taken all of it. I admitted to him that I couldn’t prove it. He fold me that, as a man of his word, M. Kaplan had been in business for twenty-five years, and he said: ‘We have never bought pipe or anything else from the town of Tullos, excepting this one time, and I can take you to my place and show you our books and let you see.’ He told me that I could go out to his place and look at his stock and go over his books. I said: ‘Now, if you want to settle with me and pay me for all of my pipe -’.”

The pipe here referred to as the second lot was the sixteen joints that defendants bought from Greer. Defendants offered to restore it to plaintiff who declined to accept it. As the purchaser in good faith of stolen property is only obliged to surrender it where and as he received it and is only liable for its value when he converts it to his own use, as to the sixteen joints in question plaintiff is only entitled to judgment for possession of it or its value in case possession is not given on demand.

Plaintiff further testified that in response to Mr. David Kaplan’s invitation he went to M. Kaplan & Son’s place of business, and:

“Q. Where did you see him?
“A. In his office.
“Q. Did you go anywhere except in his office ?
“A. I went out in the yard and asked for him.
“Q. Did you make an inspection out there?
“A. No, sir.
“Q. What was the conversation you had at that time?
“A. Well, I said: ‘You told me positively once before that you had not gotten any pipe from Tullos excepting the pipe that we found you with, and I have since found evidence that you have gotten some more and I have proof by truck drivers that you got it.’ I said: ‘I don’t want any litigation and don’t want any trouble; I want either my pipe or money to pay for it.’
“Q. Yes, well what did he say?
“A. Old man Kaplan says: ‘You are a trouble maker. Get out of here. I don’t want to talk with you.’ ”

This, in our opinion, constituted a conversion by the defendants of the twenty joints of pipe and thereby rendered them liable to plaintiff for the value thereof in this action.

As to plaintiff’s claim for damages in the sum of $224.88, alleged to have been sustained by him in searching^ for the stolen pipe, we do not think he has established this demand with that legal certainty the law requires. The items making up this total are as follows:

March 2nd, 1927 ___________________________________$ 7.00

March 2nd, 1927 __________________________________ 20.00

March 5th, 1927 ___________________________________ 15.00

March 5th, 1927 ____________________________________ 3.23

March 7th, 1927 ____________________________________ 10.00

March 10th, 1927 ________________________________ 25.00

March 14th, 1927 __________________________________ 10.00

March 17th, 1927 __________________________________ 14.65

J. E. Erwin, 12 days at $10.00 per day ----------------------------------------------------- 120.00

Asked what the item of $7.00 represented he said:

“I can’t answer that. I have about thirty men working for me and all those records are kept in my office. That is my bookkeepers’ record. I couldn’t tell you who spent it.”

He then said that the money had been expended by himself and one J. E. Erwin, whereupon he was asked:

“Q. Will you swear that you spent seven dollars on March 2nd, 1927?”

And he answered:

“A. No, sir.”

And he was asked:

“Q. Will you swear that J. E. Erwin spent seven dollars on March 2nd, 1927?”

And he answered:

“A. No, sir; I will swear that one or other of us spent it.”

Again:

“Q. Who spent that item of $20.00 on March 2nd, 1927?
“A. The same thing applies on every item.
$ $ $ $
“Q. Now, then, on March 5th, 1927, Virginia Hotel, $15.00.
“A. I paid that in person. I can swear to that item.
“Q. Now what did you do there, Mr. Aarnes; did you cash a check for $15.00 or did you pay that amount in settlement of a bill due them?
“A. I paid that for room rent and expenses while I was here.
“Q. Your item says here Virginia Hotel, $15.00. Now did you or not pay them $15.00?
“A. Oh, I got $15.00 in U. S. currency from the, Virginia Hotel.
“Q. -Then, as a matter of fact, you didn’t pay them $15.00 but got a check cashed for $15.00, didn’t you?
“A. Yes, I did; and paid them in currency.
“Q. How much did you pay them?
“A. I couldn’t tell you, sir; I don’t keep up with all those things; I have something else to do.
“Q. Now, on March 5th, in addition to having cashed the check for $15.00 at the Virginia Hotel, there is an item of cash expended of $3.23. Who spent that?
“A. I couldn’t tell you all those items.
“Q. All right. On March 7th, cash expended, $10.00, even money. Do you know who spent that?
“A. It was either J. E. Erwin or myself. One or the other of us.
“Q. The same testimony applies to that item also?
“A. Yes, sir.
“Q. On March 10th, 1927, you say you paid J. E. Erwin for expenses $25.00?
* * * *
“Q. Was that á check or was it in money?
“A. That was a check I gave him.
“Q. Did he spend that $25.00?
“A. He said he did, and I think he did.
“Q. The next item is one of your own. March 14th, cash expended by H. W. Aarnes, $10.00. What was that for?
“A. The same thing applies there as the first answer.
“Q. All right, what did you spend it for?
“A. I have repeatedly told you I paid hotel hills and bills for eating; I can’t tell you the exact -amount of everything I spent. I can’t keep up with all those little things. I have got other things to do.
“Q. What’s the idea of this item: March 17th, 1927, paid J. E. Erwin, 12 days at $10.00 per day, did you pay him that?
“A. I did.”

J. E. Erwin was interrogated as to this payment, and testified:

“Q. How much did Mr. Aarnes pay you for helping him to find this stolen pipe?
“A. Mr. Aarnes never fixed any particular salary to pay me for helping him find the pipe. I was already in his employ at a straight salary of ten dollars a day.
* * * *
“Q. Wasn’t it $120.00 he gave you for that?
“A. I will be frank with you, I couldn’t tell you. To tell the truth, I am in debt to Mr. Aarnes at the present time and I haven’t kept any books on the amount of money I received from him, and I couldn’t tell you how we stand.”

The evidence introduced by plaintiff in support of his claim for expenses incurred in searching for the pipe is entirely too indefinite to become the basis of a judgment even if the defendants were liable therefor, as to which it is unnecessary to express an opinion.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, H. W. Aarnes, do have judgment against defendants, M. Kaplan & Son and Max Kaplan and David M. Kaplan, in solido, decreeing him to be the owner and entitled to the immediate possession of the sixteen joints of six-inch pipe purchased by them from Greer and belonging to plaintiff and that upon default on the part of defendants in delivering said pipe to plaintiff on demand at their place of business in the city of Monroe, Louisiana, that plaintiff have judgment against said defendants in solido for the sum of four hundred and twenty-seven and 84-100 dollars with legal interest thereon from judicial demand.

It is further ordered, adjudged and decreed that plaintiff have judgment against said defendants in solido for the further sum of five hundred and thirty-four and 80-100 dollars with legal interest thereon from judicial demand, as damages sustained by him by the conversion by defendants to their own use of the twenty joints of six-inch pipe belonging to plaintiff purchased by them from King.

It is further ordered, adjudged and decreed that plaintiff’s claim for $224.88, damages alleged to have been sustained by him in searching for the stolen pipe be rejected.

All costs of the District Court to be paid by defendants; plaintiff to pay the costs of this court.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    ODOM v. LUTCHER & MOORE LUMBER CO.
    (Jan. 5, 1928. Opinion and Decree.)
    (Feb. 15, 1928. Rehearing Refused.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 156.
    One who cuts ties pointed out to him by his employer and is paid at a rate per tie is an employee and not an independent contractor, under the Workmen’s Compensation Act No. 20 of 1914 as amended.
    2. Louisiana Digest — ¡Master and Servant —Par. 160 (j).
    In order to recover compensation for hernia under Par. 17, Section 8, of Employer’s Liability Act No. 20 of 1914, as amended by Act No. 85 of 1926, injured employee must prove injury, pain, notice to employer and attendance of a physician within forty-eight hours after the occurrence of the hernia.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by R. D. Odom against' Lutcher & Moore Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    S. E. Foster, Leesville, attorney for plaintiff, appellee.
    Hardin, Hardin & Cavanaugh, Lake Charles, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for compensation for injury which he suffered while making cross-ties for the defendant company. One of the defenses is that plaintiff was an independent contractor and not an employee or laborer of defendant. Plaintiff was engaged for the purpose of making cross-ties which defendant used in building its tram roads and his compensation for that work was fixed according to the number of ties which he made. The defendant pointed out and furnished the timber from which the ties were to be made and compensated plaintiff at an agreed rate per tie after the same had been cut and accepted. Under the doctrine established in the cases of Burt vs. Davis Wood Lumber Co., 157 La. 111, 102 South. 87, and Dick vs. Gravel Logging Co., 152 La. 993, 95 South. 99, we hold that plaintiff was not an independent contractor, but he was an employee of the defendant company and therefore in a position to claim the benefit of the Employers’ Liability Act.

The injury of which plaintiff claims is alleged to be traumatic hernia with which he became suddenly afflicted on October 7, 1926, while straining in an attempt to lift a log, which work was necessary and formed part of his duty in the making and sawing of cross-ties.

Compensation for such injury is now restricted to cases arising under paragraph 17 of Section 8 of the Employers’ Liability Act, as amended by Act 85, p. 110, of 1926, and it may only be recovered where the injured employee has complied with the conditions required by that statute.

In his petition plaintiff alleges full compliance with the requirements of the provisions of the cited statute, but proof is lacking to sustain these allegations. There must be conclusive proof that the hernia was immediately caused by the sudden effort or severe strain, that the descent of the hernia immediately followed the cause, that there was severe pain in the hernial region, that there was such pros tration that the employee was compelled to cease work immediately, that the injury was so severe that it was noticed by the claimant and communicated to the employer within forty-eight hours after the occurrence of the hernia, and that there was such physical distress that the attendance of a licensed physician was required within forty-eight hours after the occurrence of the hernia.

The plaintiff has failed to show with any degree of certainty that he called a licensed physician within forty-eight hours of the occurrence of the injury and on the other hand it is shown clearly that he did not notify his employers until October 24, or seventeen days after the time that he claims to have been injured. Nor is the severity of the injury shown by conclusive proof.

We believe that the proof is insufficient to bring plaintiff’s claim within the provisions of the law, and that his demand should be rejected.

For these reasons the judgment of the District Court should be reversed and plaintiff’s demand refused, and

It is so ordered.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    WARD v. KANSAS CITY SOUTHERN RAILWAY CO.
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, namely, negligence of railway company in allowing rain to damage contents of a trunk and amount of damage done, not being manifestly erroneous, is affirmed.
    Appeal from the District Court, Parish' of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by Mrs. Emma • Ward against Kansas City Southern Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellee.
    Pujo, Bell & Hardin, of Leesville, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Emma Ward claims $179.80 of the Kansas City Southern Railway Company on account of the value of clothing and injury to a trunk.

She alleges that a trunk and clothing belonging to her was shipped over defendant’s railroad, and, while in defendant’s possession, was exposed to a rain. That her clothing inside and the trunk itself was badly damaged as a result of the wetting.

Defendant admits receiving and transporting the trunk to Leesville, La., but denies that it was, while in its possession, exposed to rain, and alternatively denies that plaintiff was damaged to the extent claimed.

The evidence shows with reasonable certainty that the trunk was exposed to a rain after it arrived at Leesville and that the clothing and trunk were damaged as a result; but responsibility for the wetting and the extent of the damage is not so easily arrived at. The trunk arrived at Leesville during the evening of October 23rd, 1926. It was one of the make known as a steamer wardrobe. This make is flat and can be stood up on end. It rained heavily during the day, morning and evening, and was raining when the train arrived. Mr. Adams, warehouseman, who received the trunk from defendant’s other agent at the depot, says that it was drizzling at .the time he delivered it to Mr. Kay, the transfer man who received it for the plaintiff, and that it commenced raining hard within four or five minutes afterwards. Mr. Kay, however, was sure that it had cleared up and stopped raining at the time he received the trunk. He says that he delivered the trunk within five or six minutes after he received it, and that it did not rain after he got it, nor while he had it.

The evidence on the subject is conflicting, but the facts and circumstances have led us to the conclusion that the trunk was exposed to the rain while in the possession of the defendant, on the platform, after it arrived at Leesville and before it was placed in the depot.

It was necessary, in order for the rain to have gotten inside the trunk, that it either have been stood up endwise, or laid flat upside down. We think this is what was done, either just before or while it was on the platform.

We are not satisfied that the lower court erred in deciding the case in favor of the plaintiff, nor can we say that the amount allowed should be reduced.


author: LECHE, J. LECHE, J.

text:
    No. -
    First Circuit
    LAROUILLE v. MERIDIAN LUMBER CO., LTD.
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused.)

      (.Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 351; Master and Servant — Par. 160 (j).
    Where the preponderance of evidence shows that the fracture of employee’s leg did not contribute to his death, his widow cannot recover compensation under the Employers’ Liability Act No. 20 of 1914, as amended.
    Appeal from the Parish of Evangeline. Hon. J. C. Fruge, Judge ad Hoc.
    Action by Emelia Larouille against Meridian Lumber Co., Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    A. V. Pavy, of Opelousas, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for compensation alleged to be due as a result of her husband’s death.

Jean Baptiste Toussaint, her husband, died on October 9, 1926. He had been employed as a laborer by plaintiff and, during the course of his employment, on May 28, 1926, his leg was fractured a few inches above his ankle. He immediately received medical attention from defendant’s physicians and the bones were reset in place. -Noticing, after a reasonable delay, that there was suppuration and that the bones failed to unite, defendant’s physicians opened the wound and the broken joints were again set, but this time with a Lane plate. Plaintiff’s husband during this treatment remained in confinement under the care of defendant's physicians. The second operation was a success, suppuration ceased, the wound healed and the union of the bones progressed sufficiently to enable plaintiff to. walk on crutches. During the first days of October following, plaintiff had not yet been able to resume work and was still under the care of defendant’s physicians. On October 6th, he had a stroke of apoplexy, rallied somewhat, and on the 9th he had another stroke from which he died.

The only contested issue in the case is not one of jurisprudential law, hut is one of fact, depending for its proper solution on a knowledge of the science of pathology. It is purely a medical question, viz: was the death of Toussaint attributable in tne remotest degree to the breaking of his leg on May 28th?

Four physicians were sworn as experts, two of them who had operated on Toussaint’s leg, and two of them who testified only as experts answering questions based on hypothetical facts. There is really no serious conflict in the testimony of these four gentlemen.

Dr. Archibald, the regularly employed physician of defendant, says in substance that Toussaint died of apoplexy, that the apoplexy was superinduced by interstitial nephritis, ordinarily known as Bright’s disease, that Toussaint was also affected with syphilis in its third stage, which facts were ascertained in an autopsy held on October 9th, by himself and Dr. Lett; that neither of these diseases were super-induced or activated by the fracture of the leg; that on the contrary the treatment received by Toussaint, while he was in the hospital and confined with the broken leg, had the effect of assuaging them.

Dr. Lett, who conducts a sanitarium at Lecompte, where Toussaint was operated upon and treated, makes the same diagnosis as Dr. Archibald. Both Dr. Archibald and Dr. Lett say there was no shock undergone by Toussaint and they further say that the fracture of Toussaint’s leg had nothing to do in causing his death by apoplexy on October 9th.

Dr. Vidrine, a physician, appointed by the court as an expert, is of the opinion that the breaking of a leg, resetting it twice, is usually attended with a shock sufficient to activate interstatial nephritis and dormant syphilis; that a man could not undergo the breaking of his leg and two resettings without a shock, and this is the only apparent conflict in his testimony with that of Drs. Lett and Archibald.

Dr. Littel, another physician also appointed by the court, is of the opinion that the stroke of apoplexy of which Toussaint died on October 9th, cannot reasonably be attributed to the fracture of his leg on May 29th.

Summing up the opinions of these four experts, two of them, who operated upon Toussaint and treated him, say there was no shock; one of them thinks there was; three of them believe that the fracture of the leg did not contribute to the cause of Toussaint’s death, and the fourth merely thinks that it might have been an indirect cause.

Weighing this testimony in the light of the case of Behan vs. John B. Honor Co., Ltd., 143 La. 348, 78 So. 589, it does not sustain the claim of plaintiff. In that case the court held that an accident which causes an existing dormant disease to become active or virulent and superinduces physical disability, furnishes grounds for compensation. It therefore follows as a corollary that physical disability from an existing dormant disease not actuated nor superinduced by such accident, does not give cause for compensation. In other words, the accident must Save contributed to the physical disability. In this case the preponderance of the evidence is that the accident did not contribute to the death of Toussaint.

We do not believe that plaintiff has shown grounds for the relief which she seeks, and, for that reason, the judgment of the District Court should be reversed and her demand should be rejected at her costs, and it is so ordered.

ON APPLICATION FOR REHEARING

LECHE, J.

Plaintiff, believing that the opinion rendered by this court on January 5, 1928, in the above matter, is erroneous, has filed a very earnest application for a rehearing, in which she complains, among other grounds, that we failed to condemn the defendant to pay to her the sum of sixty-three and 37-100 dollars acknowledged by defendant to have been due to Toussaint as compensation at the time of his death.

The decree of which applicant complains in no way discharges defendant from liability for this amount which it acknowledges to owe to Toussaint’s legal heirs or representatives. It is a credit belonging to Toussaint’s succession and defendant is entitled to retain this amount until it may safely pay the same to Toussaint’s heirs or legal representatives. There is no evidence in the record to show that plaintiff is an heir of Toussaint or a legal representative of his succession, and we therefore see no authority in law to justify this court in recognizing plaintiff as being entitled to collect and receive this amount.

The other grounds urged by plaintiff for a rehearing have been carefully reconsidered and it would be unreasonable, arbitrary and unjust to ignore the testimony of Dr. Archibald and Dr. Lett simply because they had been employed by defendant to operate upon Toussaint and' to treat him. We assume that these gentlemen are reputable physicians and experts in their profession. We see no reason to change or amend our original views.

Rehearing refused.


author: REYNOLDS, J.

text:
    No. 3160
    Second Circuit
    COOPER v. BENNETT
    (December 21, 1927. Opinion and Decree.)
    (February 3, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles — Par. 4 (a).
    An automobile moving at a moderate speed on a public highway and partly past a moving road working machine coming from the opposite direction has the right of way over an automobile moving behind and about to pass the road working machine.
    2. Louisiana Digest — Appeal—Par. 625.
    Where the only question at issue is one of fact, the judgment of the trial court thereon will not be disturbed unless manifestly erroneous.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Mrs. M. C. Cooper against Q. L. Bennett.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. W. Elder, of Ruston, attorney for plaintiff, appellee.
    T. S. Price, E. L. Walker, of Ruston, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    An automobile operated by plaintiff collided with an automobile operated by defendant opposite a road working machine moving on the public highway, and plaintiff sues defendant for $212.35 damages alleged to have been sustained by her by reason of the collision, which, she alleges, was the fault of defendant. She avers that her automobile was moving on the extreme right-hand side of the highway in the direction in which she was going and met a road-working machine coming from the opposite direction and occupying about two-thirds of the width of the road, measuring from the right-hand side of the road in the direction it was going, and that when her automobile was about parallel to the road-working machine defendant’s automobile, which was immediately behind and moving in the same direction as the road-working machine, was sought to be driven between her car and the road-working machine, and thereby brought about the collision. She alleges that defendant’s conduct was negligent.
   REYNOLDS, J.

She further alleges that she suffered scratches and bruises about the limbs and body in the collision and suffered mental and physical pain in consequence for.which she is entitled to $50.00 as compensation, that she lost the use of her automobile for seven days, which use was worth $5.00 a day, and that she paid for necessary repairs to the automobile $127.35. And she prayed for judgment for $212.35 with legal interest thereon from judicial demand.

Defendant denied that the collision was caused by any fault of his and alleged that it was the result solely of plaintiff’s fault. He further alleged that his automobile was moving behind another going in the same direction and that when the automobile ahead of his reached the road-working machine it safely passed the road-working machine on the latter’s left side and that he attempted to pass the road-working machine as the automobile in front of him had done, but that just when the front end of his automobile reached the front end of the tractor that was pulling the road-working machine plaintiff’s automobile, coming from the opposite direction, without any warning, plunged into defendant’s automobile. That the collision occurred at the foot of a long and steep hill which he was ascending and plaintiff descending and that plaintiff could see and did see his automobile coming along toward her behind the road-working machine and. the automobile ahead of him, and that he had the right of way to pass the road-working machine before she did, and that she was negligent in attempting to pass the road-working machine before his automobile had done so. He also alleged that plaintiff had the last clear chance to avoid the collision and should not have judgment even though he should be held negligent.

And he reconvened against plaintiff for the sum of $40.51 alleged necessary cost of repairs to his automobile by reason of the collision.

On these issues the case was tried and there was judgment in favor of the plaintiff and against defendant for $127.35 with legal interest thereon from judicial demand and rejecting defendant’s reconventional demand against plaintiff and the defendant appealed. Plaintiff did not appeal or answer the appeal.

OPINION

Only one contention of fact is presented for our decision, namely, whose car, plaintiff’s or defendant’s, first reached and attempted to pass the road-working machine.

Plaintiff, Mrs. M. C. Cooper, testified:

“Q. As you attempted to pass this road-working machine, what happened, if anything?
“A. Well, there was a car passed us just before we went to pass this machine— Mr. Bennett’s ear was behind it, and we passed nearly by and he came in and struck my car.
“Q. You say that there was one car that passed around the road-working machine before you got to it?
“A. Yes, sir.
% sjs
“Q. In which direction was Mr. Bennett’s car traveling?
“A. North.
“Q. That was the opposite direction from which you were traveling?
“A. Yes, sir.
“Q. Did he or not attempt to come around the road-working machine and to your side of the road?
“A. Yes, sir; he did.”

Earl Hendrix testified:

“Q. Did you have any accident as you were passing this road machine?
“A. Me and the preacher ran together.
“Q. You mean you and Mr. Bennett — • they call him ‘preacher’?
“A. Yes, sir.
“Q. At about what point — was it to the front end or back end of the machine or middle of the road machine — that you and Mr. Bennett ran together?
“A. It was about the front wheels of the machine.
“Q. Then you had already passed the tractor and' the connecting part between the tractor and the machine before you collided ?
“A. Yes.
“Q. When did you first discover or see that Mr. Bennett was going to attempt to come around the machine and to your side of the road?
“A. Well, when he got close enough to it to go around it.
“Q. At that time, where were you with your car?
“A. I was in front of the tractor.
“Q. When you discovered that he was going to attempt to come around the road machine and to your side of the road, did you have any possible chance to stop your car or to have avoided the collision between you and Mr. Bennett?
“A. No, sir.
“Q. Who was driving Mr. Bennett’s car?
“A. He, himself.”

Prank Strother testified:

“Q. At what point, approximately, did the two cars come togéther?
“A. Well her car was about even with the front wheels of the road machine.
“Q. Did you see or notice any effort of Mr. Bennett to attempt to come on your side of the road until you all had started to pass the tractor?
“A. No, sir.
“Q. After you noticed .that he was attempting to come around the machine, or tractor, was there any possible chance to have avoided an accident?
“A. No, sir.”

Ervin Creed testified:

“Q. Was the Cooper car starting past the tractor before the Bennett car started to pass the road machine?
“A. Yes, sir.
%
“Q. Now, where do you say the front end of the Cooper car was at the 'time of the accident?
“A. At the front end of the road machine, the front wheel.” . “
* * * *

•Claude Barmore testified:

“Q. With reference to the road machine itself, where did the Cooper and Bennett cars come together?
“A. About the front of the road, machine wheels, behind me.
“Q. Just opposite the front wheels of the road machine?
“A. Yes, sir.
“Q. Then, if I understand you, at the time of the accident, the Cooper car had passed the front of the tractor and had come a distance of about twenty feet; would that be correct?
“A. After it passed the front end of the tractor, yes, sir, something like twenty feet.
“Q. After the Bennett car had passed the rear end of the machine, how far had it gone before the cars came together?
“A. Just about even with the machine.
“Q. And that placed the front end of his car about the front end of the road machine?
“A. Yes, sir.”

Mrs. Frank Strother testified:

“Q. Did you ever leave your right-hand side of the road?
“A. We did not.
“Q. About what place did this collision with Bennett’s car take place?
“A. Back by the machine, we had done passed the tractor.
“Q. If you noticed, how far had you all gotten around this tractor when Mr. Bennett attempted to come by the machine and on which side of the road?
“A. Well, we had just gone beyond the tractor and he started around.”

Jim Anderson testified:

“Q. Had or had not Mr. Cooper’s car started past the tractor before Mr. Bennett made an effort to pass?'
“A. They had done come down -
“Q. Who is ‘they’?
“A. Cooper’s car had done come down on their side of the road before Bennett ever looked even like he was going to start around.
“Q. Then, if I understand you, Bennett left and went to Cooper’s side of the road after Mrs. Cooper’s car had passed the road machine — is that right?
“A. Yes, sir.
“Q. Did Bennett give any signal or warning that he was going to try to go around?
“A. Not any at all.”

The testimony of these witnesses that the collision occurred after plaintiff’s automobile had passed the tractor and was passing the road-working machine is contradicted by that of Mr. and Mrs. Pilgreen and defendant himself, all of whom swear it occurred at the front end of the tractor; but it is our opinion that the testimony of the witnesses from which we have quoted is correct.

Besides this, defendant’s eyesight was defective and he wore eye-glasses and he testified that he had turned to his left and was proceeding to pass the road-working machine without having first looked to see whether he could pass without colliding with the car coming from the opposite direction.

Under all the evidence we are convinced that the judgment of the District Court is correct and accordingly it is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    SUCCESSION OF WILLIAMS On Opposition to Administrator's Account
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Executors and Administrators — Par. 62, 75.
    Money advanced to one who afterwards becomes administrator of an estate, which is used for the preservation of the estate, is not collectible against the estate but against the administrator as his individual debt.
    2. Louisiana Digest — Executors and Administrators — Par. 63, 73.
    Without a,n order of court, the administrator of an estate has no authority to create new debt's against the succession unless it' be under Civil Code Article 1147 for the preservation of the estate.
    3. Louisiana Digest — Privileges—Par. 4.
    Under Civil Code Article 3224, expenses for the preservation of property gives a privilege on movables only but not on immovables.

      4. Louisiana Digest — Privileges—Par. 4.
    Under Civil Code Articles 3249 et seq. there is no privilege granted on immovable property for the preservation of a ¡plantation.
    5. Louisiana Digest — Privileges—Par. 2, 3.
    The law only can confer a privilege and this must be done expressly. Equity cannot confer a privilege.
    Appeal from the Parish of Lafourche. Hon. Robert R. Butler, Judge.
    Succession of William P. Williams. Opposition to Administrator’s account.
    There was judgment for administrator and opponent appealed.
    Judgment reversed.
    Caillouet & Caillouet, Thibodaux; Solo-man S. Goldman, New Orleans; attorneys for opponent, appellant.
    J. A. O. Coignet, Thibodaux, attorney for administrator, appellee. ■
   MOUTON, J.

William E. Williams died in the Parish of Lafourche, October 11, 1923, leaving an insolvent succession. He left at his demise, a sugar ¡plantation agricultural implements, mules and wind-rowed cane. The Pan-American Life Insurance Company, opponent herein, had a first mortgage on the plantation, which exceeded in amount the value of the property.

Charles D. Stanwood was appointed administrator of the estate, obtained an order of court directing the sheriff to sell all the property of the succession for cash, to pay its debts. It was sold under a separate appraisement. The following amounts were realized from the immovables by destination, and from the plantation proper.

Proceeds from the immovables by destination $1,808.76; from the plantation $20,000.00, making a total of $21,808.76.

The proceeds realized by the sale of the movables have been exhausted by privileged claims, leaving in the hands of the administrator the sum of $17,452.44. This sum represents the proceeds from the plantation including immovables by destination, which, at the time of the sale, amounted to $1,808.76.

The property was bought at the sheriff’s sale by the opponent, Pan-American Life Insurance Company for $21,808.76, two-thirds of its appraised value under it's mortgage which amounted to $28,078.95.

The administrator filed his final account which was opposed by the Pan-American Life Insurance Company. Its opposition to claims for servants’ wages, supplies, and laborers’ wages, was sustained. It was, however, denied as to the following items which the court allowed under the head of miscellaneous claims: H. T. Cottam and Company, $69.53; Ber-Clement Sheet Metal Works, $12.88; Standard Motor Co., $37.80; Braud Coal Yard, $15.40. The Court also rejected in part the claim of Warren Williams for $1800.00 allowing him $685.62, holding that the claim of Warren Williams and of those above referred to were • secured by privilege superior in rank to the mortgage rights of the Pan-American Life Insurance Company over the proceeds realized from the sale of the immovables.

A sum advanced by Warren Williams, amounting to $1561.84, the administrator says, was used for the preservation of the estate. The District Judge found that $676.12 of that amount had been used by the administrator prior to his qualifying as such, and eliminated that much from the claim against the estate. He also eliminated therefrom various other small items aggregating a total of $220.50. It appears that the sum of $1561.84 advanced by Warren Williams, was by means of two checks, and smaller cash amounts at different times. It is shown that one of the checks, amounting to $1000.00, was collected by the administrator on November 7, 1923, about sixteen days prior to his appointment, which was, as heretofore stated, effected on November 23, 1923. It is evident that the $1000.00 so advanced might be claimed by Williams against the administrator as an individual .debt, but is not chargeable to the succession. Carroll, Hoy & Co. vs. Davidson, 23 La. Ann. 428. The District Judge should have eliminated that amount for the same reasons that he applied in rejecting a portion of the claim, because the funds had been used for the estate prior to the qualification of the administrator. This amount of $1000.00 with the $220.50 for the other items above noted, reduces the claim of Warren Williams to the sum of $341.31, if allowable at all against the succession.

There was no order of court obtained by the -administrator to get money or advances to operate the plantation. Without such an order, it is well established, that an administrator has no authority to create new debts against a succession. Maxwell-Yerger vs. Rogan, 125 La. 1, 51 South. 48; Succession of Sparrow, 39 La. Ann. 702, 2 South. 501; Florsheim Bros. vs. Holt, 32 La. Ann. 134; Succession of Mansion, 34 La. Ann. 1246; Carroll, Hoy & Co. vs. Davidson, 23 La. Ann. 428.

The District Judge says that the money so advanced was for the preservation of the estate, which the administrator under his oath, had to faithfully administer or conserve. C. C. 1147. In reality, he reasons, such a liability is not created by the administrator, but arises from the necessities of the situation in which he is placed under the responsibilities of his office, and creates itself. It is difficult to conceive how the obtaining of a loan by the administrator, to be expended on an estate for its preservation or conservation, could be affected otherwise than by a conventional arrangement' or by his authority, implying an agreement or obligation. The debt could not be otherwise created. It would be a, new debt created under his management of the estate, and unless properly authorized, is not binding on the succession. Let us concede, however, that the debt was legal because contracted for the preservation of the property. Although this may be true, the question arises as to whether the validity of the obligation carried with it 'a lien or privilege on the proceeds of the immovables priming the mortgage rights of the Pan-American Life Insurance Company.

Under Civil Code, Article 3224, expenses for the preservation of the property gives a privilege to one in possession of it by virtue of a loan or deposit. This article relates to and is restricted to privileges on movables., This is clearly demonstrated by its verbiage and the heading of the Code under which it is found. The claim of Williams is not directed against the proceeds of the movables which have been exhausted by the payment of the preferred claims. His recourse is demanded against the proceeds of the immovables. Privileges on immovable property are conferred under Chapter 4, Civil Code, beginning with Article 3249. This article and those following, give no privilege for the preservation of a plantation or immovable property, nor have we been referred to any law or statute conferring such a privilege.

The claims of H. T. Cottam & Company, Ber-Clement Company, Standard Motor Company, and Braud Coal Yard, herein-above enumerated, were also placed by tbe administrator on his tableau as superior •in rank to the mortgage of the Insurance ■Company, because they were grounded on feed and repairs for the preservation of ■the immovables of the succession. These claims being asserted as privileged, because applied to the preservation of the estate, have, under the law, no such status. It would only be under the application of the doctrine of equity, that .such claims could be given the character of preferred or privileged debts. The law only can confer a privilege and this must be done expressly. Equity does not, and can not, confer a privilege. We must, therefore, deny the right of these claimants to be paid by preference on the proceeds in the hands of the administrator, resulting from the sale of the immovables of the estate.

It is, therefore, ordered, adjudged and decreed that the privileges accorded by the tableau of the administrator as approved by the judgment of the District Court, to the claims of H. T. Cot'tam & Company, to Ber-Clement Company, to the Standard Motor Company, and to the Braud Coal Yard, and to the claim of Warren Williams, in the respective amounts therein recognized, be and is hereby denied and refused, and in that respect the judgment below is avoided and reversed; and it is further ordered, adjudged and decreed that the Pan-American Life Insurance Company be paid, under its mortgage, by preference and priority over said claimants, from the proceeds of sale of the succession now in the hands of the administrator, and that said claimants pay the cost of the opposition of said Pan-American Life Insurance Company.


text:
    No. -
    First Circuit
    DICKINSON & CO. v. ATCHAFALAYA FISH CO.
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, being clearly correct, is affirmed.
    Appeal from the District Court, Parish of St. Martin. Hon. J. D. Simon, Judge.
    Action by J. Q. Dickinson & Company against Atchafalaya Fish Company.
    ■There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. Xavier Mouton, Lafayette, attorney for .plaintiff, appellee.
    John B. Fournet, of Jennings, attorney for defendant, appellant.
   ELLIOTT, J.

J. Q. Dickinson & Company made a shipment of calcium chloride from Madden, ’ West Virginia, to Atchafalaya Fish Co., at Atchafalaya, La., prepaying the freight which amounted to $253.36, and sues to recover the amount.

The defendant, after presenting various exceptions which were overruled, filed an answer. In this answer they deny ordering calcium chloride, and allege that they never received any, freight prepaid. That if plaintiff did ship, freight prepaid, which they deny was done, that plaintiff was negligent and careless in not promptly notifying them to that effect. That defendant received the shipment, freight to he collected, and paid same. That if plaintiff shipped any goods to defendant the same was not received. That they have paid freight on all the goods they received.

We take the answer to mean that they received the calcium chloride shipped to them by the plaintiff; that it erroneously came “Freight collect,” and that they in consequence paid the freight and therefore do not owe plaintiff the amount on that account.

The record shows that plaintiff shipped the goods as alleged, prepaying the freight thereon.

A letter in the record dated August 28th, 1921, written by defendant to the plaintiff, shows that the shipment was ordered by defendant, and that they requested the plaintiff to prepay the freight, stating why it was necessary to do so.

Another letter in the record dated November 9th, 1921, shows that defendants received the bill of lading from plaintiff, and that it showed that plaintiff had prepaid the freight; it further shows that defendants returned the bill of lading to plaintiff for correction, on the ground that it was in error in saying that the freight had been prepaid.

In a postscript dated June 30th, 1922, written at the bottom óf a letter from plaintiff to defendant, the defendants promised to mail a check to plaintiff for the freight, as soon as they got their money from the railroad company at their end of the line. They say in the postscript that if they were having trouble, it was plaintiff’s fault in not having sent the bill of lading with the invoice; yet, their previous letter shows that they did get the bill of lading from plaintiff on November 9th, 1921, and returned it, as above stated.

It will serve no purpose to further comment on the evidence. The evidence shows that defendants justly owe the plaintiff the amount claimed. The judgment in favor of the plaintjff is therefore correct,

Judgment affirmed, defendant and appellant to pay the cost in both courts.


text:
    No. -
    First Circuit
    CRYER v. GREAT AMERICAN CASUALTY COMPANY
    (January 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Indemnity—Par. 2.
    An indemnity insurance policy containing the clause that liability for sickness occasioned by an attack of appendicitis shall be in force only after thirty days from date of policy making indemnitor liable where policy issued April 19, and sickness contracted May 15 thereafter.
    2. Louisiana Digest — Indemnity—Par. 2.
    The provisions of Act 310 of 1910 providing double indemnity as a penalty for delay in payment by indemnitor to the assured for more than thirty days from due notice and proof of disability without reasonable grounds does not apply where, although defense in' suit was not sufficient to defeat demands, nevertheless it was not unreasonable gnd unjust.
    Appeal from the Parish' of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by James W. Cryer against Great American Casualty Company.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff’s demand is for indemnity alleged to be due under an insurance policy providing for weekly sick benefit payments. The policy was issued April 13, 1926, and - contains the following stipulation:

“Part 8. If the insured shall be continuously confined within the house, not leaving it at any time or for any purpose whatsoever, and be regularly visited therein by a licensed physician and wholly prevented from transacting any and every kind of business solely by * * * appendicitis, initial attack and only when operation for removal of appendix is performed, * * * provided that this insurance shall have been in continuous force for thirty days from its date prior to the contraction of the disease, the company will pay for the period of such confinement after the first seven days, but not exceeding twenty weeks, a weekly indemnity of fifteen dollars ($15.00).”

Plaintiff alleges that he contracted acute appendicitis on May 15, 1926, was operated upon and his appendix removed on May 17, 1926, that he was brought to his home ten days later, and was thereafter confined to his home for an additional sixty days. He further alleges that he accordingly notified the defendant but that defendant refused to admit its liability. He then prays for judgment for 10 weeks’ indemnity at $15.00 per week, for $150.00 statutory penalty by reason of defendant’s failure to pay his claim as provided by Act 310, p. 528, of 1910, for interest, costs and reasonable attorney’s fees.

The defense is, in substance, that the disease for .which plaintiff was operated upon, and which he alleges caused his confinement at home for sixty days, viz: appendicitis, was contracted before the policy had been in force for thirty days.

The District Court rendered judgment in favor of plaintiff for the full amount prayed for, and defendant has appealed.

It is not disputed that plaintiff had an attack of appendicitis, that he was operated upon, and his appendix removed on May 17th, one month and four days after the policy had matured or had become in full force and effect. Nor is it seriously contested that plaintiff, as a result of this disease and the surgical operation, was confined and disabled for at least ten weeks thereafter, excluding the seven days of grace under the contract. The disputed question is whether the appendicitis had been contracted before the 13th of May, the day on which the right to indemnity went into effect.

In construing the language of the contract, it appears to us that the insured must have known that he had contracted the disease before the expiration of the thirty days, in order that such defense might exclude him from the benefit of the indemnity. The evident purpose of this stipulation is to prevent the commission of fraud against the insurer, otherwise no person insured would ever be certain of the protection guaranteed to him under the contract. It is human experience, of which we take judicial cognizance, that a great many persons have, in their physical systems, dormant and lurking diseases of which they know nothing, and that they may live long lives without suspecting and without ever being aware of the existence of such disease. The only evidence in the record which seems to cast some doubt upon the truth of plaintiff’s statement that lie was suddenly attacked with acute appendicitis on May 15th. is found in the testimony of Dr. Smith, plaintiff’s family physician, who says that, at some indefinite time in the past, he told Mrs. Cryer, wife of plaintiff, it would be well for plaintiff to be examined and have an operation. It does not appear whether Mrs. Cryer ever told her husband of this advisory remark of the doctor. There is also some evidence that plaintiff’s appendix, when removed, showed adhesions which would indicate prior attacks of appendicitis, but such indication is not always absolute or certain, according to the testimony of physicians. Again Dr. Tuten of the Lake Charles sanitarium says that plaintiff told him that he had his initial attack of appendicitis about a week previously. Dr. Tuten does not say when plaintiff made such statement, nor when he had such attack; he say's about a week previously. We do not think that this is sufficient to discredit plaintiff. Plaintiff’s testimony is that he did not know that he had appendicitis previous to the 15th of May when he was suddenly stricken with violent pains, that the next day he went to a sanitarium in Lake Charles and was operated upon on the 17th of May. We do not think that the remark of Dr. Smith to Mrs. Cryer, the indefinite statement testified to by Dr. Tuten, nor the appearance of the appendix when removed, furnish sufficient proof to show the falsity of plaintiff’s testimony.

Defendant’s suspicion as to the merit ol plaintiff’s claim was aroused by the fact that he had made claim for ■ indemnity for attacks of malarial fever which had occurred prior to the 13th of May. We see nothing unusual in this, except that plaintiff was not familiar with the provision of the contract imposing liability only 30 days after the issuance of the policy.

We believe that plaintiff has proved his demand for indemnity under the contract by sufficient evidence and with certainty.

Plaintiff also claims double the amount of the indemnity as penalty under the provisions of Act 310, p. 528, of 1910. The pertinent provisions of that statute are that payment to the assured must not be delayed for more than thirty days from due notice and proof of disability without just and reasonable grounds such as to put a reasonable and prudent business man on his guard, and that an insurance company guilty of such delay in payment, unless upon just and reasonable grounds, shall pay to the assured, as penalty, double the amount due under the contract.

To hold that defendant is liable for the penalty is to hold that the defense which caused the delay in this case was unreasonable and unjust. While the defense is not, in our opinion, shown by proof sufficient to discredit plaintiff’s testimony, it by no means follows that it is unjust and unreasonable. Defendant should, therefore, not be held liable for the penalty.

For these reasons the judgment of the District Court' should be amended by striking therefrom the allowance of the penalty of one hundred and fifty dollars and the attorney’s fees of seventy-five dollars, and, as thus amended, it should be affirmed, plaintiff to pay costs of appeal, and it is so ordered.


text:
    No. -
    First Circuit
    ADVANCE RUMLEY THRESHER CO., INC., v. SHOVE
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Executory Process— Par. 40.
    A certificate of the clerk, “A true copy of the original” refers to the original act and is sufficient in law to authorize the issuance of executory process.
    2. Louisiana Digest — Executory Process— Par. 40; Pleading — Par. 18.
    The Pleading and Practice Act No. 27 of 1926, amending previous acts, does not apply to executory process issued under Articles 732 and 734 of the Code of Practice. Therefore, verification is not necessary.
    3.' Louisiana Digest — Executory Process— Par. 45.
    Where authentic mortgage and notes pro- . vide for maturity of both notes where first is due and unpaid, executory process can properly be issued on both ■ notes where the first note is due and unpaid.
    4. Louisiana Digest — Executory Process— Par. 39; Bills and Notes — Par. 207.
    In a suit by executory process on a ¡promissory note payable at a certain place, it is not necessary to allege that payment was demanded at that place.
    Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis. Hon. -, Judge.
    Action by Advance Rumley Thresher Co., Inc., against G. H. Shove.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. J. Carmouche, of Crowley, attorney for plaintiff, appellee.
    Miller & Miller, of Jennings, and Chappuis & Chappuis, of Crowley, attorneys for defendant, appellant.
   ELLIOTT, J.

Advance Rumley Thresher Co., Inc., holder of two promissory notes, executed and signed by G. H. Shove in payment of certain machinery, in authentic form, proceeded by executory process, to have the mortgaged property seized and' sold to pay the. amount due.

The petition was filed July 5th, 1927. The petition alleges that the note for $700.00 sued on, was payable on November 15th, 1926, and that the other one for $1000.00 was payable on November 16th, 1927, but that the notes and the chattel mortgage contained an agreement, whereby the maker’s failure to pay the first note at maturity, authorized the holder of the other one, to declare it' due, and to issue executory process thereon, and have the property mortgaged, sold for the purpose of ¡paying both notes.

■ That the defendant had failed to pay the first note at maturity and that it was the holder of both notes.

The petition further alleges that said notes and a certified copy of the act of mortgage was thereto annexed for reference.

The order granting the executory process was signed by the Chief Deputy Clerk of Court.

The defendant appealed from the order granting the process, on the ground that it had been granted contrary to the law and the. evidence.

Defendant urges in his petition for appeal and in his brief, that it appears on the face of the alleged copy of the act of mortgage, that it is not a certified copy. There is no certificate to that effect on the bottom of the act on the inside, where certificates of that kind are usually found but there appears written across the folded paper on the outside and underneath the certificate of registry, and as part of same, the following: “A true copy of the original,” signed by Deputy Clerk. The certificate of registry and the certificate “A true copy of the original,” appear as one certificate.

The defendant contends that this certificate does not refer to the original act of mortgage, which is said to have secured the notes sued, on, but to the registry which was made of the act, and that therefore the process issued without authentic evidence.

We conclude that the certificate, “A true copy of the original” refers to the original act and that it is sufficient in law to authorize the process.

The defendant contends that it appears on the face of the petition that it is not properly verified as required by law, Act 27 of 1926, known as the Pleading Act. The Pleading Act has reference to and provides for the ordinary proceedings comprised in Part 11, Title 1, of the Code of Practice. See Arts. 98, 12'4 and 146. The Pleading Act contemplates petitions on which citations must issue, in which exceptions and interventions may be filed, in which an answer is required, witnesses may be summoned, and parties may be called in warranty, etc. It does not contemplate nor provide for Executory Process, Code of Practice Arts. 732 and 734, which is summary in character, in which judgment is confessed, and in which no exception, answer, intervention nor call in warranty may be filed.

The Code of Practice does not require that petitions in executory process be sworn to. The question of verification, therefore, does not require a ruling, because it was not necessary to. verify the petition. Defendant contends that the suit as to the note for $1000.00 is premature, because it was not payable until November 15th, 1927.

The notes sued on and the authentic contract whereby they were secured, provides that failure to pay the first note at maturity should mature the other note, authorize executory process thereon, and the seizure and sale of the mortgaged property to pay both„ notes. The process can not, therefore, be set'- aside on that account.

Defendant further contends that the notes are payable at “Jennings National Bank,” and that the petition does not aver that payment was demanded there and that this failure renders the process invalid.

It has been decided that in a suit on a promissory note payable at a certain place, it is not necessary to allege that payment was demanded at that' place. La. Digest, Vol. 1, Subject, Bills and Notes, p. 986, Section 207, and Mitchell vs. D’Armond, 30 La. Ann. 396.

The order is legal. The executory process was properly issued thereon.

The plaintiff contends that the appeal is frivolous. It is not frivolous.

Judgment affirmed.


text:
    No. -
    First Circuit
    DAIGLE v. PLAISANCE
    (January 5, 1928. Opinion and Decree.)
    (See Daigle vs. Plaisance, page — .)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 9.
    One hundred and ninety-five dollars is sufficient quantum of damages for damage to automobile, wages of nurse, board of nurse and medical fees.
    Appeal from tbe Parish of Lafourche. Hon. R. B. Butler, Judge.
    Action by Dominique Daigle against Eugene Plaisance.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Howell, Wortham -& Howell, of Thibodaux, attorneys for plaintiff, appellee.
    J. A. O. Coignet, of Thibodaux, attorney for defendant, appellant.
   LECHE, J.

This case was tried at the same time as that of Mrs. Dominique Daigle against the same defendant, this day decided, and on the same note of evidence.

It was found in the latter case that the collision between defendant’s automobile and that of plaintiff arose through the fault of defendant, so that the only new matter here involved is the amount of damage to which plaintiff is entitled.

The district judge was of the opinion that an award of $110.75 for damage to the automobile, $30.00 for wages of nurse to Mrs. Daigle, $15.00 for board of nurse and $40.00 for medical fees, paid by plaintiff, as proved, was fair and adequate.

The facts shown in the record sustain this finding and, for that reason, the judgment of the District Court should be affirmed, and it is so ordered.


text:
    No. 3199
    Second Circuit
    STATE EX REL. GRUNER AND WIFE v. JUDGE ET AL.
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 191.
    • Under an order granting both a suspensive and a devolutive appeal, the appellant does not waive his right to perfect the suspensive appeal within the legal delays by perfecting first and separately the devolutive appeal.
    On petition for Writs of Prohibition, Oertiorari and Mandamus by State ex rel. L. A. Gruner and Wife against H. C. Drew as Judge, etc., and others.
    STATEMENT OF THE CASE
    On the petition of L. A. Gruner and his wife, Mrs. Gladys Gruner, alternative writs of prohibition, certiorari and mandamus were issued by this court directed to the Honorable H. C. Drew as judge of the Twenty-Sixth Judicial District Court of Louisiana, in and for the Parish of Webster, and A. H. Phillips, as sheriff of said parish, and C. D. Lites and J. A. Lites, as plaintiffs in a suit on the docket of said court numbered 6124, wherein relators are defendants, prohibiting them, until the further orders of this court, from proceeding with the execution of the judgment in said cause, ordering the record therein sent up to this court for inspection, and then to show cause why the judgment of the District Court therein, on rule, ordering said sheriff to proceed with the execution of said judgment, should not be annulled.
   REYNOLDS, J.

Relators allege that on November 4, 1927, an order for executory process to issue in said cause was signed by said judge and that notice to pay was served on them on November 5, 1927. That on November 8, 1927, orders of appeal, both suspensive and devolutive were granted them, the bond for the devolutive appeal being fixed at $50.00 and that for the suspensive appeal according to law; that within the legal delays they executed and the clerk of the court approved and filed a bond for the devolutive appeal and thereafter and also within the legal delays they executed and the clerk approved and filed a bond for the suspensive appeal; that thereupon they were ruled to show cause why it should not he adjudged that their suspensive appeal had not been perfected and the sheriff ordered to proceed with the execution of the judgment and on hearing of the rule it was made absolute.

And they prayed for alternative writs of prohibition, certiorari and mandamus prohibiting respondents from proceeding with the execution of the judgment, annulling the judgment making the rule to show cause absolute, and ordering the record sent up for the inspection of the court, and that after hearing the writ of prohibition be made peremptory and the judgment on the rule to show cause annulled.

Respondents answered admitting these allegations of the petition and alleged:

1. That the filing of the devolutive appeal bond as required by law divested the District Court of jurisdiction as to the granting of further orders' or receiving further bonds and the case was then and there transferred to this court.

2. That the filing of the devolutive appeal bond waived the right to file a suspensive appeal bond, and as the property was under seizure and advertised for sale the filing of the suspensive appeal bond could not affect the proceedings in execution' of the judgment.

3.That there was only one order of appeal issued, that it called for a devolutive or suspensive appeal, that only one appeal could be taken thereunder, and that when the devolutive appeal was perfected the right to a suspensive appeal was lost and could only be regained by a new order therefor.

OPINION

We find in the record on appeal in the suit of C. D. Lites and J. A. Lites versus L. A. Gruner and Mrs. Gladys Gruner, No. 6124 on the docket of the Twenty-Sixth Judicial District Court of Louisiana in and for the Parish of Webster, and No. 3190 on the docket of this court, the following order:

“In this cause, by reason of the law and the above petition and affidavit being in favor thereof, the appeals prayed for, both devolutive and suspensive, are granted, and bond for suspensive appeal according to law and devolutive in the sum of fifty ($50.00) dollars; appeal to be "made returnable to the Honorable Court of Appeal holding sessions in Shreveport, Caddo Parish, Louisiana, returnable Thursday, December 1st, 1927.
“Signed officially this November 8th, 1927.
(Signed) “H. C. DREW.
“Twenty-Sixth District Court, Webster Parish, Louisiana.”
(Italics ours.)

It appears, then, that relators were granted orders of appeal both suspensive and devolutive, and therefore the only question presented for our decision is whether relators by perfecting their devolutive appeal within the legal delays thereby waived the right to perfect their suspensive appeal.

This is an interesting question and one which we do not find has been directly adjudicated by our Supreme Court.

In the ease of Legget & Brothers vs. Potter, 9 Ann. 309, it was said:

“The question presented is, whether (the case being appealable) plaintiffs were warranted in issuing execution until after the expiration of ten days from the notification of judgment? The act was manifestly irregular, unless by taking a devolutive appeal, defendant is to be regarded as having waived the delay. The object of the delay is that the party against whom judgment has been rendered may have time to consider whether or not he will take a suspensive appeal, and, in case he shall do so, to allow him a reasonable time to procure his security, and do such other acts as may be necessary. This reasonable time is ten days. It is for the benefit of the judgment debtor; but like any other privilege, may be waived; and this waiver, together with the waiver of a suspensive appeal, we think was virtually made, when defendant obtained his devolutive appeal.”

This language, taken literally, might well be construed to mean that the perfecting of a devolutive appeal under an order granting both a devolutive and a suspensive appeal waives the right to perfect the suspensive appeal; but that question was not at issue in that case and we regard the language of the court quoted as obiter dicta in so far as it affects the question at issue here. The question before the court there was whether an execution issued upon a judgment within ten days after the judgment was rendered was prematurely issued.

The same is true of the case of Hatch vs. English, 12 Rob. 135, the syllabus in which reads as follows:

“Where a fi. fa. has been issued against a defendant before notice of judgment served on him as required by law, he may require that the fi. fa. be quashed, and a suspensive appeal allowed. But where he contents himself with taking a devolutive appeal only, he cannot afterwards complain.”

We are of the opinion that relators were entitled to perfect their suspensive appeal within the legal delays, notwithstanding they had already perfected their devolutive appeal, and they having done so the judgment making absolute the rule to show cause why the sheriff should not be ordered to proceed with the execution of the judgment was erroneous.

It is therefore ordered, adjudged and decreed that the alternative writs of prohibition, certiorari and mandamus heretofore issued here be made peremptory.


text:
    No. -
    First Circuit
    NAVAL STORES EQUIPMENT COMPANY, LTD., v. ILLINOIS CENTRAL R. R. CO.
    (February 15, 1928. Opinion and Decree)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Automobiles—Par. 5, 7.
    One who attempts to rush across a railroad in an automobile without first looking for trains approaching is guilty of contributory negligence which defeats his recovery for damages done by the resulting collision with a box-car slowly backing over the crossing.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.

      Action by Naval Stores Equipment Company, Ltd., against Illinois Central Railroad Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. S. Burns, of Ponchatoula, attorney for plaintiff, appellant.
    Carrol Buck, of Amite, attorney for defendant, appellee.
   MOUTON, J.

An automobile belonging to plaintiff company, driven by H. A. Forbes, collided with a car of defendant company at a crossing on Thomas Street in the city of Hammond. The auto was wrecked. This suit is for its value. The demand was rejected. Plaintiff appeals.

Thomas Street runs through Hammond, east and west, across the tracks of defendant company, which run north and south through the city. Forbes was coming from the west side of the tracks and, as he was about clearing the crossing going east, his auto was struck by a box car of defendant company, and was demolished. Lights were burning on both sides of the tracks along Thomas Street at the time, 12:30 at night, and on top of the box car with which the auto collided there was a lantern in the hands of a flagman. Smythe, a witness in the case, says he was also coming from the west side to make the crossing, but that he saw this railroad car or train about' one hundred feet down the track moving towards the crossing. As he was standing there, Forbes passed north of him, and as he was about negotiating the crossing, his auto was struck by the railroad car, and smashed. He says Forbes was traveling at a speed of about fifteen miles an hour when he passed him. Meyers, a police officer of Hammond, was, at the time, on Thomas Street, but on the east side of the crossing. He also saw Forbes coming from the west towards the crossing, and says he was traveling at twenty-five or thirty miles an hour. He saw when the crash occurred, and says Forbes did not stop at the crossing. These are disinterested witnesses, and no doubt have given a correct narrative of what occurred. If Forbes had been exercising ordinary prudence or caution, it is evident that he could have seen the box car moving towards that crossing as it had been seen by Smythe who stopped in time on the west side of the tracks. He could certainly have seen that car in the lights that were shining in Thomas Street on each side of the tracks, or the lantern that was in the hands of the flagman on top of that boxcar, and fully in time to have avoided the collision. A good deal of evidence was introduced to show that shooting of guns, skyrockets and other fireworks was going on when this accident happened on January 1st, 1926. The purpose of that character of evidence was to establish the fact that the atmosphere had become smoky as the result of these gunpowder explosions, and had, in consequence, obscured the vision of Forbes, who was driving the car, and also that of the engineer who was backing this railroad car over the crossing; that because of this smoky condition of the atmosphere, the danger to travelers over the crossing had correspondingly increased, and, under the circumstances, called for increased and unusual attention on the part of the engineer. It is shown that his train was moving at about five miles an hour, that the engineer had a flagman on the box car with a lantern, constantly on the lookout; that this flagman, upon seeing Forbes’ car dashing over the crossing, immediately gave the engineer the proper signals, and that the engineer immediately applied his brakes which were in good condition, but that it was then too late, and the accident was then simply unavoidable. The defendant company met all the requirements of the situation, and no more could be asked of it. If the air was murky from the effects of smoke caused by the celebration of the New Year which it is claimed was going on in Hammond, and that this condition affected or obscured Forbes’ sight, it is reasonable to say that he was required, on account of this increased danger, to exercise all the care demanded by the occasion before venturing over the crossing. Instead of being circumspect, he attempted to rush across, and met with the disaster of which plaintiff, owner of the wrecked auto, complains. The accident was the result of Forbes’ own fault, and plaintiff is' not entitled to recover.


author: ODOM, J.

text:
    No. 2985
    Second Circuit
    THE CONTINENTAL SUPPLY COMPANY v. KAPLAN & SON
    (Dec. 21, 1927. Opinion and Decree.)
    (Feb. 3, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact, namely: the amount of pipe which plaintiff received, being clearly correct, is affirmed.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by The Continental Supply Company against M. Kaplan & Son.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Stubbs & Thompson, Monroe, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, Monroe, attorneys for defendant, appellant.
   ODOM, J.

On April 19, 1926, plaintiff and defendant entered into a contract under which defendant, M. Kaplan & Son, were to sell and deliver to plaintiff, The Continental Supply Company, 21,120 feet of 4-inch iron piping at an agréed price of 37 cents per foot, less a discount of 2% for cash.

Anticipating that all the pipe would be delivered and that the price would be paid in cash, M. Kaplan & Son drew on the Supply Company for $7,658.11, the full amount due under the contract.

The draft was .promptly honored and paid.

The Supply Company now contends and alleges that only 13,581 feet of the piping was delivered to it, leaving a shortage of 7,538 feet which, at the contract price, was worth $2,733.49, and that therefore it had overpaid Kaplan & Son that amount, which it sues to recover back.

It is further alleged that on July 16th Of the same year, the Supply Company purchased from M. Kaplan & Son 420 (should be 480) feet of 12-inch piping at $2.00 per foot, amounting to $960.00, for which it has not ipaid, and it credits Kaplan & Son with that amount, leaving due it an alleged balance of the difference between $2,733.49 and $960.00, or $1,773.49, for which this suit is brought.

M. Kaplan & Son, in answer, denied any shortage in the delivery of the pipe and alleged that they had complied with their contract and delivered all that was ordered and that they were not overpaid, and reconvened for $960.00, the value of the 12-inch pipe.

Admittedly, if Kaplan & Son delivered all of the 4-inch pipe ordered, the reconventional demand should be allowed.

On the contrary, if the Supply Company’s contentions are correct, it had a right to deduct the $960.00 from the amount it overpaid Kaplan & Son on the 4-inch pipe, and the reconventional demand should be rejected.

The sole issue tq be determined is, whether Karplan & Sen delivered all the pipe erdered and, if not, what amount was delivered, and that involves a question of fact only.

According to the survey and plat in evidence, the 4-inch pipe line laid by the Supply Company is 21,140 feet long. It ordered from Kaplan & Son 21,120 feet of piping, or approximately enough for the line. Its contention is and its witnesses swear that not all of the pipe which went into the line was delivered by Kaplan & Son but that Kaplan & Son delivered what 4-inch ipipe they had on hand and stopped delivery and that in order to avoid delays it caused to be shipped to it from Norphlet, Arkansas, a car load, or 7,617 feet of piping, which it used to complete the line. It arrives at the amount of piping delivered by Kaplan & Son by deducting the 7,617 feet shipped from Norphlet and used from the total length of the line.

In addition to the testimony of plaintiff’s witnesses that not all the piping used in the line came from M. Kaplan & Son, we observe that M. S. McGuire, who hauled and placed the greater portion of the piping along the line, testified that he hauled from the supply of M. Kaplan & Son as long as it lasted and then hauled and distributed that which the Supply Company had shipped in the car from Norphlet. McGuire is positive that not all the pipe in the line was supplied by M. Kaplan & Son.

We think plaintiff has conclusively made out its case on that point'.

In support of their contention that they delivered all of the pipe in the line, or 21,120 feet, Kaplan & Son offered and filed in evidence written memoranda or delivery tickets made out by either one or the other members of the firm or by Mr. Outman, their salesman. These tickets or delivery slips purport to show each load hauled and the number of joints and feet in each load. We closely scrutinized and checked these slips, and our conclusion is that they hurt, rather than help, defendants’ case.

Defendants offered in evidence three ipads containing carbon copies of these checks or slips and identified them as “D2”, “D3” and “D4”. In the pad marked “D3”, there are 28 sheets, each sheet showing a load of pipe and the number of feet. Of these 28 sheets, six of them show that the delivery was made to the hauler, Eason, the total number of feet being 2,405. The other sheets show 22 loads delivered to the hauler McGuire, the total number of feet delivered to him being 13,306, or a total of 15,711 feet delivered to Eason, and McGuire.

Twenty-four of these sheets are signed with the initials of either David Kaplan, M. Kaplan or Outman. The other four are signed “Fred”. David Kaplan, M. Kaplan and Mr. Outman each testified that each and every load that went out to plaintiff was delivered and checked by either one or the other of them, and they identified the sheets showing loads delivered by them, and we note that the court excluded all sheets not so identified.

The testimony, does not show who “Fred” was or what he had to do with the deliveries. His name was never mentioned by any of the witnesses. Hence, there is no proof that “Fred” delivered any pipe to the haulers for plaintiff.

Deducting the number of feet shown on the slips signed “Fred”, or 2,287, from the total number of feet shown by all the 28 sheets, we have left 13,424 feet, which lacks exactly 187 feet o.f being what plaintiff contends it received from defendants.

These totals may not be absolutely accurate, but they are substantially so.

Thus far we have not considered all the sheets produced by defendants.

The pad marked “D2” has in it six sheets ¡purporting to show delivery to the plaintiff of six loads or 2301 feet of 4-inch piping. But, unlike the sheets in pad “D3”, they do not show to whom or to what hauler this pipe was delivered, whereas, each and every one of the sheets in pad “D3” show to what hauler delivery was made. It is strange that defendants did not think to show on these particular sheets who received this pipe as they did on the others.

Again, three of these sheet's are dated April 19th, 1926, the very day on which the order for the pipe was placed, two on April 20th, one day later, and one April 23rd, three days later, and more than thirty days previous to the date on which plaintiff began to lay its line, according to the testimony of ¡plaintiff’s employees and of Eason and McGuire.

Not only that, but the sheets in pad “D3” are dated May 29th, 30th, 31st and June 1st and 16th. According to the undisputed testimony, plaintiff began to lay its line on May 29th. Eason’s books show and he testified that he hauled one day, May 29th, and McGuire said he began to haul the next day.

Now, taking up the sheets in pad “D4”, we find therein six sheets purporting to represent or show the delivery of six loads or 3,197 feet of 4-inch piping. These sheets, like those in pad “D2”, do not show to whom these deliveries were made, as do all those in pad “D3”.

And adding the number of feet shown by “D2”, or 2,405, and the number of feet shown by “D4”, or 3,197, or a total of 5,602, to the total number of feet shown in “D3”, or 15,711, we have a grand total of 21,112 feet shown by all these sheets, which is the total amount that Kaplan & Son say they delivered; so that they must get credit for the pipe shown on all of these sheets if they prevail.

Further noticing the sheets in pad “D4”, we observe that two of them are dated May 29th and the other four May 30th. These are the dates shown by two of the slips in pad “D3”. This shows that the purported deliveries as shown by “D4” and “D3” were being made at the same time. The Messrs. Kaplan and Mr. Outman say that these sheets were all made out when and as the deliveries were made. If that be true, the question arises, Why are not these slips in pad “D3”? Why did they use two different pads to show simultaneous deliveries?

That would be easily accounted for if they had used all the sheets in pad “D3”, for then they would have needed another pad; but by actual count there are fifteen blank original and that many blank duplicate sheets left in pad “D3” unused. It might be surmised, of course, that the blank sheets in “D3” were overlooked; but that theory falls when it is noted that the used sheets in “D3” come in consecutive order and are dated May 29th, 30th, 31st and June 1st, 10th, 11th, 12th,' and 16th. (Among these are four sheets made out to Arthur Smith.) Then follow the blank sheets in the back of the pad.

So it seems clear that defendants were using two pads at the same time. Why? It seems to us that an explanation was due. And none was made.

We do not overlook the fact that David Kaplan testified that some of the pipe was hauled on trucks belonging to plaintiff, and it might be suggested that the purported deliveries shown in pads “D2” and “D4”, none of which show to whom deliveries were made, as do all of those in “D3”, were made to plaintiff’s drivers on its trucks.

That argument, however, we think, would be rather weak, because it would seem that there was as much reason to show to whom deliveries were made in the one case as in the other.

Not only that, but each of plaintiff’s employees who testified on their part said that none 'of its trucks were used to handle the pipe and that it was all hauled by McGuire and Eason. McGuire says that Eason hauled one day and strung the pipe through the Green property to the Stubbs property and that he took it up there, and “I strung every foot of it from there on”. (Evidence, page 47.)

The testimony shows that Eason used a truck and hauled only one day, and he says he rented the truck. McGuire used teams only. Therefore, the only truck used was the one which Eason rented.

There is no testimony that any 4-inch pipe was delivered by Kaiplan & Son to plaintiff and used elsewhere than on this particular line.

Our conclusion is, that the lower Court correctly held that defendants delivered to plaintiffs only the amount of pipe which plaintiff says it received, and the judgment is therefore affirmed with costs.