text:
    No. 2115.
    Second Circuit Appeal.
    MRS. BEN F. LIVELY v. TAYLOR NASH MOTOR CO.
    (November 13, 1924, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest, Automobiles — Par. 4.
    Where an auto is driven at excessive rate of speed on a highway and therebj frightens horses attached to a buggy the auto .driver and his employer are negligent and responsible for the damages caused by the frightened horses (Civil Code, Art. 2315. Editor’s note.)'
    2. Louisiana Digest — Evidence—Par. 348.
    Testimony received without objection will be considered even though it changes the issues or adds new ones.
    Appeal from the Parish of Caldwell, Hon. Jones, Judge.
    This is a damage suit for personal injuries.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
   PORTER, J.

The plaintiff was being driven by her son in a two-horse buggy along the Columbia-Monroe highway, when two of defendant’s employees, each driving an automobile and in the course of their employment, passed her and frightened the animals hitched to her buggy, causing them to run off of the embankment, or dump, as a result of which the large, or mainbone, in her left (fore) arm was fractured and other injuries were inflicted upon her.

The petition charges that the said automobiles were being operated, at an excessive and illegal rate of speed, and that defendant’s said employees were guilty of gross negligence, carelessness, disregard of law and want of skill.

The defense is a general denial. There was judgment for the plaintiff in the sum of $800.00, and defendant appealed.

The district judge, in a written opinion, found from the evidence substantially the following facts:

That at the time of the accident the plaintiff, with her son, was traveling north on the right side of the road, and that defendant’s employees, Hollis and McLain, came up behind the plaintiff’s buggy, at “great speed”; that the first car passed within about three feet of the buggy, and the second one, which was just behind the first, apparently tried to pass the leading car, which threw the last car so close to the team that it struck the hreast yoke of the buggy, and so frightened the team that they jumped over the embankment and turned the buggy over.

The statement that the buggy was turned over is not borne out by the testimony — it did not turn over, but as the front wheels struck the bottom of the ditch or embankment, the plaintiff was thrown forward against the dashboard and was injured.

The district judge, after discussing at some length the testimony, concludes as follows:

“The preponderance of evidence clearly shows that the defendants’ cars were being driven along this highway at an excessive rate of speed. It was endeavored by the defendant to show that plaintiff’s team was naturally frightened by any automobile, but this failed; the evidence showing that this team had been accustomed to passing automobiles and not being frightened at all. Again, immediately after the two cars passed they stopped and the drivers went back to see what was the trouble. If these two men had not driven their cars very close to plaintiff’s team, when they were driving as fast as they were, they naturally would not have noticed a disturbance. They going at such a high rate of speed and seeing this accident shows that they must have been very close to {he team to, have noticed it, and by preponderance of evidence it is clear that the team became frightened by the cars on account of their close proximity. The speed at which the cars were being driven and the proximity of the same to the team shows negligence on the part of the drivers and therefore the defendant is liable.
“The plaintiff is an elderly lady, about seventy years of age. The thumb on one hand was dislocated, the bone in one arm was broken, she received severe injury to her back and she was unable to do any work for a long time. She had been accustomed, prior to the accident, of doing all her household work and the milking, but since this accident she has not been able to accomplish this. She suffers at this date a great deal from her back. She never had any severe pains in her back until she received these injuries in this accident. Taking into consideration her age and the injuries and suffering the court is of the opinion that she is entitled to compensation in the sum of Eight Hundred Dollars. See decree.”

There is the sharpest conflict in the testimony of the two sets of witnesses. If'those whd testified for the plaintiff are to be believed the case is clearly made out. If we give credit to defendants’ witnesses it is not made out. The trial judge who saw, and heard all of the witnesses, and who probably knew, all or some of them, believed .those for the plaintiff and disbelieved those for the defendant. It is primarily the duty of the trial court to weigh the testimony and, in cases where all of it cannot be reconciled, to reject that which he does not believe.

And appellate courts are never warranted in disturbing his conclusions on the facts except in cases of manifest error.

A careful study of the note of evidence has not convinced us that, such an error exists here.

The most serious point urged by counsel for the defendant is the following;

The latter part of Article 2 of the petition, referring to the automobiles as owned by the defendant, and operated at the time by its employees, acting in the scope of their employment, alleges that they “approached your petitioner at an illegal and excessive rate of speed from the north; that said automobiles seemed to be racing with each other and were driven and operated as if they were going to collide head on with petitioner’s team, but suddenly swerving to the right barely escaped striking the horses of petitioner and so badly frightened them that they became uncontrollable and plunged down the embankment or dump of said road, despite the efforts of petitioner’s son to prevent them.”

This is the only part of the petition which sets out the cause of the accident.

Now, the contention of counsel for the defendant is that the above allegations assign as the cause of the accident the fright of the team because of the passing of the car, and that they do not authorize testimony that the car struck the breast yoke, or any other part of the 'harness or of the buggy, and hence, that the district judge committed error in considering any testimony to that effect.

It is true that "these allegations do not affirmatively show that the fright of the horses resulted from the striking of any part of the harness, and we may concede that no fair inference to that effect follows, and yet the authorities cited in support of the proposition that testimony contrary to the allegations or beyond them ought not to be considered, are not applicable here.

The chief witness for the .plaintiff, her son, testified at length, on direct and cross-examination, that one of the machines struck the breast yoke and the single tree, and the plaintiff herself corroborated him, and later on in her testimony the first objection to such evidence was registered and overruled.

The doctrine is equally as well settled that -such testimony received without objection will be considered even though it changes the issues or adds new ones. See cases cited under Section 348, page 260, La. Digest, Vol. 3.

Besides, if the two cars ran by this team, on a rather high embankment, at a rapid, if not reckless speed, that, in itself, would constitute negligence, even if no part of the vehicle or harness was struck.

And really this appears to have been the ground upon which the learned district judge based his judgment.

The amount awarded plaintiff, while somewhat liberal, does not appear to be ex- ■ cessive and the judgment is affirmed.

ODOM, Judge, takes no part, not having been a member of the court when the case was submitted.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2122.
    Second Circuit Appeal
    T. R. HUGHES, SHERIFF & EX-OFFICIO TAX COLLECTOR, v. S. B. HICKS MOTOR CO., INC.
    (November 13, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Taxation—Par. 258. 259.
    Under Section 31 of Act No. 233 of 1920 a garage which does shop or repair work for outside persons must pay a license tax as such regardless of whether it is run in conjunction with an auto sales department requiring adjustments and “tightening up” of “trade-in” cars.
    2. Louisiana Digest — Taxation—Par. 221.
    Under Section 42 of Act No. 233 of 1920, where the taxes are not paid when due, certain penalties must be paid and attorney’s fees where suit is brought.
    Appeal from the First District Court, Parish of Caddo. J. H. Stephens, Judge.
    This is a suit to collect taxes due.
    Judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    W. M. Phillips of Shreveport, attorney for plaintiff and appellee.

      Dickson & Denny of Shreveport, attorneys for defendant and appellant.
   ODOM, J.

The defendant is a corporation domiciled in the City of Shreveport, and is engaged in the wholesale, and retail' automobile business. It also operates a “shop department” in connection with its other business. It paid its license tax on its wholesale and retail business during the years 1920-21-22, that is, it paid a license tax as a wholesale and retail dealer, but did not pay a license to operate a work or repair shop. The tax collector demanded the payment of a license tax on the repair shop in addition to the wholesale and retail dealer’s license, which payment was refused on the ground that a repair department is a necessary adjunct to an automobile sales business, and in fact is part of such business and that a wholesale and re tail dealer’s license covers and includes the repair department.

It also developed after the license tax for the year 1922 had been paid that defendant had paid $180.00 less than the amount due for that year, which amount is admittedly due by defendant in rule.

The Tax Collector ruled defendant to show cause why it should not pay a license or occupation tax of $30.00 for 1920, $62.50 for the year 1921, and $75.00 for the yeai; 1922, for the privilege of operating its repair shop, as a separate department from its wholesale and retail business, and why it should not pay an additional sum of $180.00*for the year 1922, together with interest and attorneys’ fees.

It is admitted that if defendant owes a license or occupation tax on its repair department separate and apart from its other business, the correct amount to be paid in as above set out, except for the year 1922, which should be $62.50, and it is further admitted that defendant owes $180.00, additional license on its retail business, which amount it is willing and offers to pay, but that the Tax Collector will not accept the amount without the payment of interests and attorneys’ fees and that defendant refuses to pay such interest and attorneys fees.

There are, therefore, two questions presented to the court for decision, to-wit: First, under the facts of this case, should defendant pay an additional license or occupation tax on its repair department, and, second, should defendant be required to pay interest and attorneys’ fees on the $180.00 additional license admitted to be due on its retail business for the year 1922.

We find in the record -an agreed statement of facts which recites among other things “that the shop department of the S. B. Hicks Motor Co., Inc., is necessary to the successful operation of its automobile business and that it is necessary to any automobile sales business to have such a shop or repair plant. That this shop’s main purpose is to supply the wants of the S. B. Hicks Motor Co., Inc., but that it does a small amount of work for the accommodation of the customers of the S. B. Hicks Motor Co., Inc.; that during the year 1919 the garage or repair shop of the defendant performed services for third persons amounting to twelve thousand dollars, for the year 1920, not less than sixteen thousand dollars, and for the year of 1921 not less than sixteen thousand dollars. That these amounts were not considered in estimating the tax as either wholesale or retail dealer and that the amounts included only charges for work done for third persons.” We think this case on this point falls squarely under Sec. 31 of Act 233 of 1920, which is a verbatim copy of Sec. 17 of Act of 1898, which reads as follows:

Sec. 31. “Be it further enacted, etc., that when two or. more kind of business are combined except as herein expressly provided for, there shall be a separate license required for each kind of business.”

The defendant company is engaged mainly in the sale at wholesale and retail of automobiles both new and second hand, “trade-in” cars. The new cars have to be set up and repaired for the market and after they are sold and used for a while by the purchaser they have to be gone over, adjusted, and “tightened up.” Old trade-in cars have to be rebuilt, repaired and repainted. In order to do all this, the dealer must maintain a repair or shop department. Such a department is a necessary part of the sales business, and when maintained for that exclusive purpose it is a part of that business and no additional license or occupation tax is due thereon.

But when, as in the case at bar, shop or repair work is done for outside' or “third persons”, and charges made for such work, the shop or repair department becomes a separate business and becomes subject to the payment of a separate license tax, as is provided in the section of the statute above cited and quoted.

If this were not the law, how easy it would be for an immense repair establishment to escape the payment of a license tax by selling one or two cars each month and paying a license as a retail dealer. In the case at bar, the repair department looked after both the new and trade-in cars handled by defendant. It did more than that. In the year 1919 it made charges for services performed for outside or third persons amounting to about $12,000, and in the years 1920 and 1921 amounting to not less than $16,000 for each year.

We, therefore, hold that inasmuch as defendant’s shop department performed services not connected with its sales business, it is a separate business to that extent and owes a separate license tax. .

With reference to the second question to be determined by us, that is whether defendant should be required to pay interest on the $180.00, admitted to be due on the retail license .for 1922, we find these admissions.

“The S. B. Hicks Motor Co.', Inc., has filed with the plaintiff each year a statement of its business, which statement, although incorrect, shows that the shop was included,” etc., * * * “and a re-audit of the 1922 statement was made, and after going over the matter several times all parties agreed that the payment of the occupation tax as retail dealer for the year 1922 was $180.00 less than it should have been and that the S. B. Hicks Motor Co., Inc., owes that sum because of the mistake in computing the tax, but the plaintiff refuses to take that sum, without the penalties. and attorneys’ fees.”

Defendant’s counsel sets up its case in the following language, quoted from his brief: “We call the court’s attention to the fact that it was after the suit was filed it was determined that there was only $180.00 due as the unpaid portion of the 1922 taxes, and that defendant had already paid $180.00 as the tax of 1922. It is then clear that defendant was not at fault in not figuring the correct tax, as it paid all that was demanded, which was $180.00, and it could not pay this $180.00 for the reason that a whole lot more was demanded and that it was only by getting together with the tax collector and going over the books that the true amount was finally ascertained,” according to the view which w.e take of the law, it makes no difference what reasons defendant may have for its failure to pay the full amount of license taxes due by it.

The very fact of its failure to pay when due subjects’it to the* obligation of paying interest thereon at two per centum per month from the date on which the license was due until it is paid.

Section 42 of Act 233 of 1920 reads in part as follows:

“Be it further enacted, etc., that all unpaid licenses shall bear interest at the rate of two per centum per month from the first day of March « * * and the tax collector shall collect said license and interest in the manner prescribed by existing laws.”

So far as we know, there are no exceptions to the above quoted law.

It is possible that cases might arise where the court, as a matter of equity, might feel warranted in remitting the penalties prescribed for the failure to pay a license tax when due, but under the agreed statement of facts ip. this case and under counsel’s statement in his brief, this is not one of those cases.

Defendant also objects to the payment of attorneys’ fees. . We see no reason why it should not be required to pay the fee prescribed by law. It failed to pay the licenses when due. Suit was brought. The attorney has rendered his services and is entitled to his fee.

We find the District Judge made a slight error in his judgment by allowing $75.00 for the year 1922, when he could have allowed only $62.50.

For the reasons assigned, it is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to substitute the amount of $62.50 for the amount $75.00 allowed for the year 1922, . thereby reducing the total amount of the judgment from $347.50 to $335.00, and that in all other respects the judgment is affirmed, the appellant to pay costs of both courts.

PORTER, J., concurs in the decree.


text:
    No. 2255.
    Second Circuit Appeal
    JOHN F. JONES v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION ET AL.
    (November 13, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (g).
    Where an employee’s ear is injured and an infection sets in making it necessary to remove a portion of the ear at a later date, prescription, under Section 31 of Act No. 20 of 1914, the Employers’ Liability Act, does not begin until the removal of a portion of the ear.
    2. Louisiana Digest — Master and Servant —Par. 159 (a).
    Where an ear of an employee is injured by a particle of brass and remains in such a condition that part of it has to be amputated, the employee can recover under Section 8, Subsection 1 (e), of Act 20 of 1914, as amended by Act 247 of 1920.
    (Note: The recent amendment is Act 216 of 1924. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hdn. J. H. Stephens, Judge.
    This is a suit to recover compensation under Act 20 of 1914, the Employers’ Liability Act.
    Judgment for plaintiff and derendant appealed.
    Judgment amended and affirmed.
    Herndon & Herndon of Shreveport, attorneys for plaintiff and appellee.
    Harry Sellers, attorney for defendants and appellants. General Accident Fire and Life Assurance Corporation Et Al. & Wheeless Auto Supply Company.
   ODOM, J.

Plaintiff was employed by tbe Wheeless Auto Supply Co., Inc., in the capacity as Manager, and on the 23rd day of February, 1922', while acting in the course of his employment, a small brass chip or sliver flew off of a bushing which was being made by another employee of said company and hit him on the upper lobe of the left ear. He at once removed this small particle of brass which had lodged in his ear, and apparently- thought but little about it until some five or six days, when the ear became sore and he consulted a physician, who administered some treatment. The ear did not heal and after several successive treatments the physician advised him to consult a skin specialist, which he did. The specialist administered radium treatment, which failed to relieve the soreness and inflamation.

He was then advised to "consult a surgeon. As a last resort the surgeon amputated a portion of the upper lobe of the left ear.

Plaintiff was earning at the time of the accident $200.00 per month. He brings this suit under Sec 8, Sub. Sec. (E) of Act 247 of 1920, and asks that he be allowed compensation at $18.00 per week for 100 weeks, and for $75.00 for medical attention.

Before issue joined, defendant filed exceptions of misjoinder, non-joinder, and no cause of action and a plea of prescription, all of which were overruled, and upon trial there was judgment for plaintiff for $75.00 doctor’s bill and for $18.00 per week for 20 weeks, with interest and costs. From this judgment the defendant appealed: Plaintiff answered the appeal, asking that the amount of compensation be increased.

This case was submitted on brief, and as the exceptions of no cause and no right of action and of misjoinder are not mentioned therein, we must assume .that they have been abandoned.

On the plea of prescription:

It was on February 23, 1922, that the chip or sliver of brass from a bushing hit plaintiff’s ear. This suit was not filed until he 15th day of February, 1924, more than one year thereafter, and defendants contend that his claim is barred under that provision of the employer’s liability act which provides that “all claims for payment shall be forever barred unless within one year after the injury proceedings have been begun, as provided in Secs. 17 and 18 of this Act”. See Sec. 31 Act 20 of 1914.

We do not think the plea of prescription is good. It is true that no action was brought and no settlement made within one year from the time his ear was injured originally, but plaintiff is not suing to recover for the injury done his ear by the chip or sliver which hit his ear on Feby. 23, 1922. His suit is to recover under Subsection (e) of Section 8 of Act 247 of 1920, which provides that “where the employee is seriously permanently disfigured about face or head the court may allow such compensation as is reasonable,” etc. He alleges and his testimony shows that a surgeon removed a portion of his left ear on June 17, 1923, “truly seriously, permanently disfiguring petitioner about the face and head”. Petitioner’s cause of action, therefore, arose not on Feby. 23, 1922, when the sliver struck his ear, but on June 17, 1928, when a portion of his ear was removed. This was less than one year previous to the filing of the suit.

The case of Guderion vs. Sterling Sugar and Ry. Co., 151 La., page 59, 91 South. 546, we think, supports our conclusions on this point. There the plaintiff was struck over the eye by a fellow employee. The court found that the blow injured his optic nerve, which resulted in the loss of that eye. The court said:

“Plaintiff’s cause of action did not arise until the loss of the eye. It is self-evident that one can not sue until his cause of action arises.”

See cases cited in that opinion. In the case at bar plaintiff’s ear was injured on Feby. 23, 1922. This injury resulted, finally in the loss of a portion of the ear, which disfigured him. He sued to recover not for the injury to his ear but for the disfigurement caused by the loss of a portion of it. His cause of action arose, therefore, not on the date of the injury, but on the date of the loss of a portion of his ear.

ON THE MERITS.

The testimony satisfies us that the injury to the ear caused by the chip or sliver of brass flying from the bushing and striking plaintiff’s ear caused an injury which finally resulted in the loss of a portion of the ear. The ear soon after the injury became sore and irritated. The physicians could not relieve the soreness and irritation. It was sore continuously from just a few days after the wound until that portion of the ear was amputated. As soon as the part of the ear which was struck by the brass particle was removed, the remaining portion of the . ear healed. That suggests to us that there was a small particle of brass or some other substance, not detected by the physicians, which remained in the cartelege of the ear, which kept it irritated, or that the ear was in some way poisoned, due to the accident. This made the amputation of that part of the ear necessary. If this did not cause the irritation and soreness, what did? It is not shown that plaintiff had any cancerous or syphatic infection, or skin disease of any character. The physicians were of the opinion that the trouble was brought about by the wound.

As to the amount of compensation under Subsec. i (e), Sec. 8, Act 247 of 1920, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in the case of specific disabilities above named, not to exceed 60 per centum of wages during one hundred weeks.”

The judgment of the lower court allowed plaintiff $18.00 per week for 20 weeks. In allowing compensation for only 20 weeks the judge of the lower court overlooked the above quoted provisions of the act to the effect that there should be compensation “during 100 weeks”. Under that provision of the statute the court has no discretion as to the length of time over or during which compensation shall be allowed, its discretion being limited to the fixing of the per centum of the weekly wages to be allowed, provided the same does not exceed 60 per centum thereof. See Garr vs. Wyatt Lbr. Co., 147 La. 689, 85 South. 640, et seq.

The Judge of the court below saw and, of course, observed the plaintiff, and for that reason was in better position to fix the quantum of damages than we are and, while under the plain provision of the statute and the decisions of the Supreme Court, we must amend the judgment, we are disposed to allow the amount allowed by him to remain substantially as he fixed it, and have allowed plaintiff $4.00 per week during a period of 100 weeks.

For the reasons assigned, it is, therefore, ordered,- adjudged and decreed that the judgment appealed from be amended so as to allow compensation to the plaintiff in the sum of $4.00 per week during a period of 100 weeks, and as this is amended, the judgment is affirmd, all costs to be paid by defendant.


author: CROW, J. ODOM, J.

text:
    No. 1776.
    Second Circuit Appeal.
    MISS E. T. KALMBACH v. P. J. BECKER, ET AL.
    (November 21, 1924, Opinion and Decree.)
    (February 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Brokers—Par. 15, 23.
    Where a verbal agreement was made with a real estate dealer whereby the dealer was to receive a commission in case a building and the stock of goods therein were sold at a certain price and later the stock of goods alone was sold, the real estate dealer is not entitled to a commission on the stock of goods, even though she brought the parties together in the prospective trade for the sale of both the building and the stock of goods. In this case it was agreed that no commission was to be paid in that event.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit to collect a commission on an alleged sale by a real estate agent.
    Judgment for- defendants and plaintiff appealed.
    Judgment affirmed.
    Dickson & Denny of Shreveport, attorneys for plaintiff and appellant.
    Wallace, Lyons & Wallace, of Shreveport, attorneys for P. J. Becker and Wm. T. McElroy, defendants and appellees.
    Wilkinson, Lewis & Wilkinson, attorneys for Chas. Jouett, defendant and appellee.
   CROW, J.

Plaintiff caused the record in this case to be sent up to this Court on an appeal taken by her counsel from a judgment rejecting her demands. On close examination of the record,' we are unable to find in the record any written judgment signed by the Judge or Judges of the District Court. From a certificate of the Clerk of the District Court, we note no minute entry • that any judgment was ever read, signed and- filed in this case. This Court, therefore, cannot entertain the appeal, as we have no jurisdiction thereof unless and until a final judgment has been read, signed and filed, followed by the necessary application, order and bond for appeal in the lower Court.

The appeal is, therefore, dismissed at the cost of appellant.

OPINION

ODOM, J.

Plaintiff is a licensed real estate dealer in the city of Shreveport. She brings this suit against the 'defendant to recover a commission of $800.00 which, she alleges, is due her for making a sale of a stock of groceries in the city of Shreveport for the defendant Jouett to the defendants P. J. Becker and William T. McElroy.

She alleges that the "defendant Jouett, during the latter part of the year 1920, was the owner of a grocery business in the city of Shreveport and that he listed and placed the same in her hands to be sold under the conditions that he was to receive $8,000.00 for said stock of goods and that he would protect her for a commission of 10 per cent thereon; and she alleges that she interested the defendants P. J. Becker and William T. McElroy in said property and that she brought the owner, Jouett, and the prospective purchasers, Becker and McElroy, together and that the sale was finally consummated; and that she is entitled to her commission but that none of the said parties has ever paid her anything.

The defendants P. J. Becker and William T. McElroy filed answers in which they denied the allegations of plaintiff’s petition in so far as any indebtedness by them to her is concerned, but they admit that they had some conference with the plaintiff about the property, and deny that any meeting was arranged between themselves and Jouett, and denied that the plaintiff told them that she was to receive any commission for making the sale.

The defendant Jouett denied any indebtedness whatever to the plaintiff and especially denied that he listed the property with the plaintiff and especially denied that he ever agreed to pay her any commission for making the sale.

The District Court rendered judgment against the plaintiff, rejecting her demands at her cost. •

Miss Kalmbach, the plaintiff, as a witness in her own behalf, stated that she had some conferences with the defendant Jouett with reference to the sale of his building and stock of goods in the city of Shreveport. According to her testimony, Jouett told her that he desired to sell his property, both the store building and the stock of goods, at the price of $50,000.00 for both properties. She says that she had a thorough understanding with Jouett, and we infer that she did because she goes into details with reference to the price and the commission she was to receive in case she sold both the real estate and the stock of goods. She states specifically that Jouett told her that if she sold the building and the stock he would pay her a regular commission of 10 per cent on the stock and 5 per cent on the first $5,000.00 on the building and 2y2 per cent on the balance.

She states specifically that Jouett told her that in case she sold only the stock of goods that she would receive no commission. She reiterates that statement a number of times in her testimony. And in a letter which she wrote to the defendant, P. J. Becker, dated November 6; 1920, she says, among other things: “Price of stock and goods will be $8,000.00 net to owner; with .building, two-story brick, for $50,000.00 net to owner. Purchaser to pay all commission.”

Her testimony on this point is the same as that of Jouett, who says that he did not agree to pay her any commission for making the sale.

With reference to the commission which she claims the defendants, Becker and McElroy, should pay, who states that not only did she write Becker on November .6, 1920, that the purchaser should pay the commission, but that at a conference between herself, Mr. Becker and Judge Wallace in the City of Shreveport she specifically told them that the owner, Jouett, would not pay her a commission but that the purchasers would have to stand for the commission.

She says that Judge Wallace, who seems to have been representing the defendants, Becker and McElroy, told her that she could rest easy, that he would see that she got her commission. She does not state that either Becker or McE,lroy ever promised to pay her a commission, but she says that she gave them to understand that they would have to pay her a commission.

Becker, as a witness in his own behalf, states that he informed plaintiff at the conference, that under no condition would he pay her a commission for making the sale; that it was not customary for the purchaser of property to pay the commission; and that if she received a commission for the sale she would have to look to Jouett for the same.

Judge Wallace, who was present at the conference, went into details as to what took place between them with reference to this sale. He says that he personally informed Miss Kalmbaeh, the plaintiff, that under no conditions would the purchasers of the stock pay her a commission. He says that he told her that they would have-to buy the stock of goods on an. inventory and pay the market price for the same, and that inasmuch as they would have to do so, it was out of the question for them to pay a commission. He further testified that the plaintiff told them that if that were the case they might proceed with the negotiations and that she would look to Mr. Jouett for her commission.

The defendant, McElroy, as a witness in his own behalf, stated that he had never met the plaintiff, was not personally acquainted with her and, of course, did not promise to pay her any commission for making this sale.

Judge 'Wallace states that the negotiations for'the sale of the real estate failed, and that he informed plaintiff that the negotiations had been broken off. The plaintiff says that she dismissed the matter from her mind, thinking that the negotiations were at an end, and that she did not know that the stock of merchandise had been sold until she saw the contract on record at the Clerk’s office.

It seems that at some time shortly after the conference between the plaintiff and parties, Jouett sold his stock of goods to Becker and McElroy for the sum of $8,850.00.

In our opinion the testimony of the plaintiff herself disposes of the case. She specifically states that the defendant Jouett informed her at the very beginning of the negotiations that he would not be responsible for any commission on the sale of the personal property alone. It is her contention, however, as we understand it, that inasmuch g,s she found a purchaser for the property and inasmuch as he profited by her industry in finding these purchasers and received $850.00 more for the stock of goods than he had told her- he would take, that as a matter of equity he should pay her a commission of $800.00.

Her counsel, in brief, cites decisions of the Supreme Court to the effect that in a spirit of justice where the services of an agent are onerous and toilsome and beneficial to a vendor, the court will sometimes allow remuneration even though no agreement was made for the payment of any specific sum.

Beugnot vs. Tremoulet, 52 La. Ann. 460, 27 South. 107.

N. O., Etc., Packet Co. vs. Brown, 36 La. Ann. 144.

Succession of Krokeler, 44 La. Ann. 726, 11 South. 35.

But that line of decisions is not applicable to a case of this kind. In this case it was distinctly understood that the defendant, Jouett, was not to pay any commission.

Plaintiff says that he profited by her industry in finding a buyer for his stock of goods, as appears by the fact that lie sold it for $850.00 more than he had priced it to her originally. However, we are not informed as to whether' the stock of goods had been added to between the time • that he made her the original proposition and the day on which the sale was made in January following. It may well be that he had added to the stock of goods, and we think we are warranted in concluding that he had, because Judge Wallace states that the understanding was that the stock should be sold on an inventory at the market price of the goods. So it may well be that the defendant, Jouett, did «not profit by the activities of the plaintiff.

Insofar as any commission being due by the other two defendants, the purchasers of the stock, the very decided preponderance of the evidence is that they gave her to understand, before they met the owner of the goods, that they would not be responsible for any commission under any condition.

Our conclusion is that the judgment of the lower court is correct and it is, therefore, affirmed.


text:
    No. 1778.
    Second Circuit Appeal.
    R. P. MILES v. RECLAMATION OIL PRODUCING ASSN., ET AL., Appellant.
    (November 21st, 1924, Opinion and Decree)
    (January 12, 1925, Opinion on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Partnership — Par. 83.
    Where an oil refinery is purchased by a group of persons for the sole purpose of refining the oil produced from their own wells and where there is no intention of purchasing oil from other parties to supply this refinery, the partnership is an ordinary partnership under Article 2828 of the Civil Code, and not a commercial partnership under Article 2825.
    ON APPLICATION FOR REHEARING.
    2. Louisiana Digest, Appeal — Par. 759.
    There were clerical errors in the original judgment corrected by amendment of former decree.
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit on a promissory note.
    Judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Cook & Cook, of Shreveport, attorneys for plaintiff and appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant and appellant.
   CROW, J.

Plaintiff, as the holder and owner of a certain promissory note executed by the Reclamation Oil Producing Assn, of Louisiana, by its President, J. E. Camatte, brought this action against the Reclamation Oil Producing Assn., J. E. Camatte, W. N. Collins, F. Reynaud, D. W. Breazeale, and G. R. Murrell, for an alleged balance on said note of $820.08, with interest and attorney’s fees, alleging that the Reclamation Oil Producing Assn, is a commercial partnership, composed of the above mentioned persons, and that, as members of such, they are liable in solido on the said note. The trial judge found said Association to be a commercial partnership composed of said named individuals, and • rendered judgment against each and all of the defendants in solido for the full amount prayed for by plaintiff.

The defense is that J. E. Camatte, the President of the Reclamation Oil Producing Assn., had no authority to sign and execute said note for the said Association, and that defendants believed it was executed for Camatte’s own debt. Defendants further claim that they were and are only trustees of said Association, and that they are not bound for said indebtedness as individuals. They show further, in the alternative, that if the court should hold them partners, then they are only ordinary partners, and not commercial partners, and in any event liable only each for his virile portion.

Defendants, except Camatte, who permitted judgment to go against him by default, have appealed to this court. They have filed in this court a motion to remand the case to the District Court, based on the fact that since this appeal was perfected, the Supreme Court of this State, in the case of American National Bank of Shreveport vs. these same defendants, No. 25,791 on the docket of said last named court (decision appearing in the Advance Sheet of date August 30, 1924), had passed on the identical questions involved in this case, and held defendant, Reclamation Oil Producing Assn., an ordinary partnership composed of the other defendants in this case, who, as such, were liable on a similar note of said Association, jointly each for his virile share, and that, there being numerous other members of said Association who were not made parties defendants in this case, it should be remanded to the trial court for the purpose of ascertaining who all the members of said Association are, in order to determine the virile share of each.

OPINION.

Since the case of American National Bank of Shreveport vs. Reclamation Oil Producing Assn, of Louisiana et al., No. 25,791 on the docket of the Supreme Court, the decision of which is reported in the Southern Reporter, Yol. 101, at pages 10 et seq., was against the same defendants as here, and since that action was the same sort of action as this, and since the issues involved herein are identical with those in the above styled and numbered cause, we think all parties here are concluded by the decision in said cause No. 25,791..

In that case, the Supreme Court held that the Reclamation Oil Producing Assn, was and is an ordinary partnership composed of the other defendants in this case, and that, as such, the said Association was liable for the full amount of the note in that 'case, and the other defendants were liable jointly as ordinary partners. We shall, therefore, hold the same in the case at bar.

There would appear at first blush to be a good deal of merit in the motion to remand; but in the case above cited, the .same request was made of the Supreme Court, or the same contention was made there as here, and the Supreme Court said that those were matters of defense which should have been raised in defense in the lower court, and evidence in support thereof introduced by defendants. On the application for a rehearing in the above cited case, the Supreme Court, in overruling, said contention of defendants and denying a rehearing, said; ,

“As to the other defendants, it is claimed that they are only a few out of many members of the defendant co-partnership, each of whom is liable only for his virile .share; but that was a matter of defense, as to which they should have made such proof in the court below as would have enabled this court to fix the virile share of each with some degree of certainty, and for which the evidence herein does not suffice.”

Apparently, the only difference in the situation in the cited case and that in this, is that the said question seems to have probably been raised for the first time in the cited case in defendant’s application for a rehearing, whereas in the case at bar, the question was raised in a motion to remand, before argument. However, the Supreme Court in the cited case, said, and we think correctly, that the question should have been raised in the lower court by way of defense and evidence there introduced in support of said defense.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment herein appealed from be, and it is set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, R. P. Miles, .and against the defendant, Reclamation Oil Producing Assn., in the full sum of $2,750.00, with legal interest thereon from January 6, 1921, until paid, and ten per cent, on the amount of principal and interest as attorney’s fees, less credits of (1) $585.17 paid January 10, 1921; (2) $853.75 paid January 13, 1921, and (3) $500.00 paid January 27, 1921, and that the other defendants, J. E. Camatte, W. H. Collins, P. Renaud, G. A. Murrell and D. W. Breazeale be, and each (is hereby condemned to pay plaintiff jointly the sum herein decreed to be due by the defendant, Reclamation Oil Producing Association, each for his virile share; the defendants to pay all costs of the District Court, and the plaintiff to pay the costs of appeal.

ON APPLICATION POR REHEARING.

ODOM, J.

On appeal to this court the judgment of the lower court was reversed and judgment was rendered in favor of plaintiff, for $2,750.00, the amount of the note sued on, less certain credits. The wording of the judgment leaves the inference that the court intended to allow attorney’s fees on the full amount of the note, whereas such could not have been intended, the amounts sued for being only $820.00, the balance due on the note after allowing the credits due. .

We also note that said judgment awards interest at 5%, whereas the note .sued on bears interest at 8%. ,

We find in the record an agreement by counsel for both plaintiff and defendant that these errors be corrected.

It is therefore ordered, adjudged and decreed that our former judgment in this case be amended and corrected so as to allow attorney’s fees of 10% on the amount sued for, plus accrued interest at 8% instead of legal interest.


author: CROW, J.

text:
    No. 1884.
    Second Circuit Appeal.
    MRS. GRAYSON UNRUH v. J. A. BONHAM.
    (November 21, 1924, Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest, Sales — Par. 124.
    Where delivery has been made cf a stock of merchandise and store fixtures, vendor can recover the balance of the purchase price according to contract made.
    2. • Louisiana Digest, Appeal — Par. 625.
    Unless clearly erroneous, the decision of the trial judge on matters of facts will not be disturbed.
    3. Louisiana Digest, Appeal — Par. 568, 577.
    The court of appeal cannot consider matters not in the record.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit for the balance of the purchase price of a stock of merchandise with store fixtures.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   CROW, J.

Plaintiff sold and delivered to defendant in September, 1921, a stock of merchandise with store fixtures situated in the town of Mooringsport, for a consideration of $3,100.00. At the time of the sale and delivery of the property to defendant, he paid plaintiff by check the sum of $1,325.00, which was applied on the purchase price. According to the agreement of the parties plaintiff was to have executed his promissorry notes for the balance, payable monthly after the date of the transaction.

The fixtures were valued by the parties at $1,800.00, and the goods at approximately $1,300.00, after a deduction of a little over $300.00 had been made for a truck which defendant did not want, and also after certain items for freight, etc., had been added to the price of the stock of goods. The goods and fixtures were in a building leased by defendant from a Mr. Parrott.

Mr. Morehead, a notary public, drew up the notes for defendant to sign and, as agent for plaintiff, presented them to defendant for' his signature, but defendant declined, because of some fancied objection, to sign the notes. Later on, Mr. Morehead lost or misplaced the notes he had filled out for defendant’s signature, fixed up another series of notes and asked defendant to sign them. This the latter also declined to do. During all this time defendant was running the business and disposing of the stock of goods purchased of plaintiff and replenishing his stock with new goods bought from other parties, presumably wholesalers,

After having thus kept the property and run the business for a period of approximately six months without executing any notes in favor of plaintiff as he had agreed to do and without paying her $125.00 monthly on said balance, as he had also contracted to do, plaintiff instituted this suit and, as ancillary thereto, sequestered all the fixtures she had sold defendant, as well as the entire stock of goods of defendant. In the stock were many articles that plaintiff had not sold defendant and on which she, of course, had no vendor’s lien that would entitle her to seize that part of the stock under a writ of sequestration. She did not point out or attempt to identify and segregate the part of the stock she had sold defendant from the rest of the stock.

Defendant filed a lengthy motion to dissolve the writ of sequestration and demanded an exorbitant amount of damages for the alleged wrongful issuance and use of the writ of sequestration. Nothing appears in the record to show that any disposition whatever was ever made of the motion to dissolve. Three days later an answer was filed by defendant.

The case was tried in the District Court, and there was judgment in favor of plaintiff for the full amount prayed for. The writ of sequestration was maintained as against the fixtures seized thereunder and dissolved as to the stock of groceries and other merchandise seized under the same writ. The judgment is silent as to defendant’s claim for damages.

From the judgment of the District Court defendant has appealed.

OPINION.

There is no doubt that the judgment of the lower court is in accord with the preponderance of the testimony. It would serve no useful purpose to review in detail or otherwise the testimony. We have gone over it carefully and we agree with the District Judge, that plaintiff is entitled to the judgment which was rendered by our learned brother of the lower court.

About the only matter which seems to be anywise seriously urged here is that the District Judge should have awarded damages to defendant for the wrongful seizure of his stock of goods.

Ordinarily, that claim would avail; but here there is no adequate proof of the amount of damages sustained by defendant by reason of the wrongful seizure of his goods. He could have bonded the property immediately on its being seized, but he admits that he made no attempt to secure its release on a forthcoming bond. Too, at the time of the seizure, defendant had closed his doors and was making an inventory of this stock preparatory to selling the entire stock to Smith Brothers. There was ground for an attachment of the property by plaintiff, but she did not resort to that remedy. Anyway there is no way by which we are to determine what amount, if. any, defendant is entitled to recover of plaintiff. He has had his day in court and has been afforded an ample opportunity to make proof of whatever actual damage he sustained, but he has not done so. This court cannot supply the proof requisite to sustain his contention for damages for him. The judge of the lower court was correct in his judgment in all respects and said judgment is, accordingly, affirmed.


author: BY THE COURT:

text:
    No. 2147.
    Second Circuit Appeal.
    MRS. MAUD WOODARE, ET AL., v. J. THOMAS HUNT.
    (November 21, 1924, Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest, Appeal — Par. 747.
    Where evidence of confirmation of- default has been lost or mislaid, case will be remanded for evidence to be retaken under the same conditions as those existing at the time of the confirmation unless the misplaced evidence is found in the meantime.
    Appeal from the Parish of DeSoto, Hon. Boone, Judge.
   ON MOTION TO REMAND.

BY THE COURT:

This is a possessory action in which the plaintiffs allege disturbances by the defendant of their possession of the land described, that defendant has trespassed upon the same, and damaged them in the sum of $150.00 by said trespass, and $350.00 for attorneys’ fees,' necessarily expended in the protection of their rights. They pray that defendant be enjoined from further trespassing upon their property; that they be quieted in their possession, and for damages as above stated.

The defendant was duly cited, hut made no appearance in the lower court. A preliminary default was duly granted, and the same was confirmed upon evidence satisfactory to the trial court which rendered judgment for the plaintiff, perpetuating the injunction, quieting plaintiffs in their possession, and awarding them judgment in the sum of $100.00.

The defendant, at a different term of the court from that at which the judgment was rendered and signed, made a verbal motion for a devolutive appeal, which was granted, and a bond, in the amount fixed by the court, was duly filed.

After the record was lodged in this court, the appellant’s counsel appeared by motion and alleged, substantially, that: Through no fault of appellant, the record as filed is fatally defective and incomplete, for the reason that a material part thereof has been lost or misplaced, namely, the testimony taken by the court stenographer on the confirmation of the default, as shown by the affidavit of said stenographer, and by the affidavit of the Clerk of Court, certifying that he has been unable to include in the record as made up, said evidence because the same has been lost or misplaced; that this court will be unable to review the cause without said evidence, and that the case should be remanded to the trial court to be. dealt with as provided by law.

The prayer is that the judgment appealed from be reversed and set aside; that the case be remanded to the lower court for anew trial, “and there he tried ele novo”, and for costs and general relief.

Upon this motion, we signed the following order:

“On the above application, it is ordered:
“That plaintiff and appellee show cause within ten days from the service of said application upon her counsel why the same should not be granted, and upon their failure to show legal cause within the above delay, the application is to stand as granted, and the cause is remanded to the court a quo for the completion of the record, as prayed for, and according to law.”

The appellee, through counsel, then filed an answer to the application, as follows:

“Now comes the plaintiffs and appellees and for answer to the rule to show cause why this case should not be remanded to the. court a quo for the completion of the record, shows the court:
1.
“That as . shown by certificate of the Clerk of the Twelfth Judicial District Court for DeSoto Parish, La., annexed hereto and made part hereof, there are three civil terms of court held in the Parish of DeSoto, the last beginning on the fourth Monday in November of each year.
2.
“That as shown by certified copy of the minutes of said court, the last regular civil term for the year 1923, convened in DeSoto Parish on Monday, November 26, 1923, and that on Tuesday, the 27th day of November, a default was entered in the above numbered and entitled cause.
3.
“That court hereupon adjourned until Wednesday, November 28th, and upon Wednesday, November 28th, adjourned until December 3rd, 1923. That on December 3rd, 1923, default was confirmed in the above numbered and entitled cause, and the judgment in confirmation of said default was signed on Tuesday, December 4, 1923.
4.
“That court continued in session through Wednesday, December 5th; Thursday, December 6th, and on said date, viz.: December 6th, adjourned sine die.
5.
“That the next term of court held in DeSoto, as shown by the Clerk’s certificate, was a criminal term, fixed for the second Monday in February, 1924.
6.
“That on Monday, February 11, 1924, the District Court for DeSoto Parish convened in Mansfield, and on Tuesday, the following day, counsel for the defendant, by verbal motion, in open court, asked for a devolutive appeal, returnable to this Honorable Court on or before March 10, 1924.
7.
“That under the plain provisions of the Code of Practice, Article 573, verbal motions for appeal can only be made at the same term at which the judgment was rendered. That a verbal motion for an appeal, therefore, in this case, in open court, could have been made only in the December term of court, and that, therefore, the verbal motion for appeal, as made in the February term of court, was illegal, null and void, and without legal effect.
'8.
“That as shown by affidavit forming part of the transcript in said cause, on page 9 hereof, the defendant herein had full knowledge of the fact prior to lodging the transcript in this court that the evidence taken in said cause had been lost.
9.
“That under Articles 601, 602 and 603 of the Code of Practice, a method is provided for furnishing the facts, where the testimony is not taken down by the Clerk and found in the record.
10.
“That under Article 602 of the Code of Practice, it was the duty of appellant to have requested counsel for appellees 'to draw jointly, with him, a statement of the facts proven in the case and to have filed the same in the record and transmitted the same as a part of the transcript of this court.
11.
“In the event of the refusal of counsel for appellees to join with counsel for appellant in the preparation of a statement of facts, then the remedy of the appellant, under Article 603 of the Code of Practice, was to apply to the trial court for a statement of the facts. This counsel for appellant has not done, and until this is done, the appellant is without right, to remand the case for a new trial.
“Wherefore, plaintiffs and appellees pray that the rule herein he dismissed and appearers discharged from hence, for necessary orders, general and equitable relief.”
The allegations of this answer might be good grounds for the dismissal of the appeal, if filed in time, but there is no such motion before us.

It appears from affidavits by the stenographer and the Cleric that certain evidence was taken in the lower court on the confirmation of the default which has been lost or mislaid, and it does not appear that sai'd loss is due to any fault of the appellant. The appellant undoubtedly has the right to have this evidence considered by this court, so that we may determine whether the judgment was rendered on legal and sufficient evidence. Of course, we are not authorized to reverse the judgment, or even to order a trial de novo, as prayed for in the motion. But we are authorized, and it is our duty, to remand the case for the purpose of having the said evidence placed in the record, if possible for it to be done.

It is therefore ordered and decreed that this cause be remanded to the trial court, with instructions to have the evidence on the confirmation of the default retaken under the same conditions as those which existed at the time of said confirmation, unless, of course, the notes of evidence referred to in the affidavit by the stenographer shall have been discovered in the meantime, or can be found by proper search, in which latter case, the said evidence is to be properly placed and included in the record, which is to be returned to this court.


author: PORTER, J. CARVER, J.

text:
    No. 2257.
    Second Circuit Appeal.
    W. R. CAUTHORN ET AL. v. CYPRESS TANK COMPANY.
    (November 21, 1924, Opinion and Decree)
    (March 17, 1925, Opinion and Decree on Rehearing)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant Par. 160.
    Under the Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 2 (g), a father, dependent to any extent on his son’s support, may recover for his son’s death.
    2. Louisiana Digest — Master and Servant Par. 160.
    Where a son agreed to help his father buy a 126-acre tract and actually sent him $100.00 for that purpose, besides sending him money and presents at various times, held, that this constitutes sufficient ' dependency to enable the father to recover for the death of his son, under Employers’ Liability Act 20 of 1914, Section 8, Subsection 2 (g) and Section 39.
    (Note: The recent amendments are: Section 8 amended by Act 216 of 1924 and Section 39 amended by Act 38 of 1918. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit under the Employers’ Liability Act No. 20 of 1914, brought by the father for the death of a son.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Joe B. Hamiter of Shreveport, attorney for plaintiffs and appellees.
    Barnette & Roberts of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

In June, 1923, Raymond M. Cauthorn, who was a few months less than 21 years old, was working for the defendant company, and while engaged, with other workmen, in constructing a tank, came in contact with a live electric wire, and was instantly killed.

His parents, the plaintiffs herein, instituted this suit under the Employer’s Liability Law of this State, and claimed compensation in the sum of $5400.00, payable in 300 weekly installments of $18.00 each, from July 3rd, 1923, with legal interest on said installments from 'their respective maturities.

At the time of his death, the young man was receiving wages of $6.00 per day.

In the District Court, there was judgment for the plaintiffs as prayed for, and the defendant has appealed.

It is conceded by counsel for both parties that the sole issue presented is the question of dependency of the plaintiffs upon their son for support at the time of his death.

The plaintiffs live in the village or town of Doddridge, Arkansas, and own, unencumbered, 30 acres of land in Doddridge, on which their home is situated. Of this land, six acres are in cultivation as a truck and dairy farm, on which they raise vegetables for their own use, and feed for their stock. They own two mules, one horse, and ten head of cattle, two of which are milk cows. Their chief source of income is from milk, butter, eggs and chickens, which are produced on this land.

In January, 1922, the plaintiff, Mr. Cauthorn, purchased 126 acres of land, lying across the river from Doddridge, for $2530.00, of which $874.00 was paid in cash, and for the balance of the purchase price he executed five notes, payable in five annual installments of $331.20 each, with interest at 7% from date. Of this tract, there are some 16 or 20 acres cultivated in corn and other crops, and about 30 acres in hay or medow land. The balance is wild, or timbered land. The plaintiff rents the cultivable land on this tract and has, since he purchased it, received but a small amount from it — about $30.00 in 1923.

The plaintiff was at the time of the trial 58 years old, and his wife was 47. His health is fairly good, and he is 'fairly vigorous for a man of his age. He cannot do much more than half a day’s plowing at one time. He says his general health is good, but “I just haven’t got the power; it is worn out just like any other old piece of machinery.” His wife has kidney trouble, but in other respects, her health is reasonably good.

Since the death of the son referred to above, his family consists of one son, 33 years old, and three daughters, one married and living in her own home, and two unmarried, one 20 and the other 9 years old, living with their parents. Until some eighteen months before his death, the young man lived with his father and assisted him with the work on the little farm, but being convinced that he could make more by working in the oil fields, he went there. When he left home, however, he promised his father that he would assist him in paying for the 126-acre tract, and a few months before his death he sent his father $100.00 to help him pay the first note due on the property. The letter in which the money was sent is in evidence in the record. His father, however, having some other pressing debts to pay, used this $100.00, with the consent of the holder of the note, to discharge them. The young man was killed a few months after the first note became due, and the proof shows that now two of the notes are due and unpaid, and the plaintiff testifies that he has no means of paying them, or the three remaining notes, or the interest or taxes. He says he relied upon his deceased son to assist him in paying for the place, and was dependent upon him to that extent.

The contention of defendant’s counsel is that the understanding between the plaintiff and his deceased son was that the plaintiff, the son, a nephew — whom it appears the plaintiff had raised — and a married daughter, were to assist in paying for the 126-acre tract, .and were then to own it together. And they argue that the amount contributed by the deceased was not a contribution to the father, but a simple investment for his own benefit. The testimony does not bear out this contention. The plaintiff was asked if he intended to deed this place to his son after it was paid out, and replied: “No, sir, no more than the balance of them.” * * * “The understanding was that it was to be paid out by all of us and then divided.” “That was the only chance for me to save it;” He promised to help me pay for it; after he was killed, I had no help.” Q. “Tt wps intended to be divided among the various children?” A. “It would 'have stayed in the family as long as we lived.”

Whatever understanding there was about the matter was a verbal one. The deed to the land is a straight out sale to the father.

The testimony further shows that after the young man left home, he sent his father $50.00 at one time, and gave $10.00 and $5.00 at other times; that he gave his father the shoes and hat which he wore at the time of the trial, and had given him other articles of clothing — a nice jumper, and, in the words of plaintiff, “just such things as a boy would send home to his parents.” He also gave his sister — then a minor at school in El Dorado, $20.00, and bought her books and some clothes.

A point is sought to be made of the fact that when the plaintiff was asked if he was dependent upon his son for this money and clothing, he answered that he was not. He appears to- think that because he did not ask for them, because the son, under the promptings of filial duty, voluntarily gave them, he, the father, was not dependent upon the son for them.

Mr. Carter, a representative of the Indemnity Company- — the real defendant in the case — went to Doddridge to investigate the plaintiffs’ condition with reference to his dependency and was a guest in plaintiffs’ home while there. He describes conditions as he found them — the home, the truck farm, the fat mules, the several cows, which he says were fine ones. We do not understand that there was any display of lavishness or luxury, but that plaintiff and his family lived well and comfortably, but frugally; that the plaintiff and his family, by their thrift and industry, were able to secure from the small farm the ordinary necessities and comforts of modern rural life.

Mr. Carter testifies that plaintiff stated to him that he was not dependent upon his son for support. Plaintiff admits this, but says he qualified the statement by saying that he was dependent upon his son for assistance in paying off the debt on the 126-acre tract.

It appears that there. was in the possession of the defendant a written statement by the plaintiff, presumably to one of its representatives, with reference to the condition of the plaintiff. It was not introduced in evidence, and there is no explanation of the failure to introduce it. The presumption is that it would have corroborated the testimony of plaintiff.

The effort of defendant Company appears to be to show that the plaintiff has not been reduced to a condition of actual present poverty and want by the death of , his son, and it has done this. The language of the law is that the beneficiary is entitled to compensation if he is actually dependent “to any extent,” and the Supreme Court and this Court have repeatedly repudiated the suggestion that actual, absolute, present dependency was a necessary condition to the right of recovery.

In the case of Gregory vs. Standard Oil Co., 151 La. Reports, page 227, 91 South. 717, the court, after citing a number of eases from other states construing statutes on the question of dependency, said:

“The statutes which the Courts had under consideration, in the cases cited, are not dissimilar to ours in any substantial respect. Indeed, we are persuaded to believe that our statute is much more liberal than the Federal statute. The words of the latter statute (Federal statute) are': ‘The next of kin dependent upon such employee.’ Whereas the language employed in our statute is: ‘Actual dependence to any extent.’ Under the Federal statute, it might well be said that dependent means that the beneficiary could not maintain himself without the aid of the deceased relative ; that he was dependent on him for support and • maintenance; and yet the Courts have consistently refused to apply such a literal interpretation. Our statute does not require that the father and mother should be shown to be absolutely dependent on their son for support before they can recover compensation on account of his death. The only requirement is that they should be actually dependent to any extent, that is to say, to some extent. The phrase ‘at the time of the injury and death’ cannot be so construed as to mean at the very moment of the death of the employee. It is broad enough to cover a reasonable period prior to the death, as well as a reasonable expectation of pecuniary assistance during the continuance of the son’s life.”

And in Heinzelman vs. Board of Commissoners, 149 La. 215, 88 South. 798, it was said:

“Dependent to any extent” is a very broad term, and seems to us to include necessary aid furnished for the discharge of any legal obligation, as well as aid required merely in supplying the personal wants of the recipients.”

In Hamilton et al. vs. Texas Co., 151 La, 692, 92 South. 301, the plaintiffs were the parents of six sons, aged 20; 17, 15, 12, 10 and 9 years, respectively. Two of the sons and the father were working for the defendant company in the oil fields. They pooled their wages, which were spent in maintaining the family. The total monthly wages earned by them amounted to something over $400.00. They were laboring people, lived in the country. The Court said it did not appear that they lived extravagantly or be-' yond what was reasonably appropriate and necessary to their station in life, and it was said:

“Of course a family of eight- could have existed on less than that which was earned, but we do not believe that it was intended under the compensation statute that dependents should be denied its benefits, except in cases of actual want and suffering.”

To the same effect, see decisions of this Court in Davenport vs. Standard Oil Co., decided in February of this year, and Hand vs. Gulf Refining Co., No. 1534 on our d5cket, decided in 1921.

We are satisfied that the plaintiffs here are clearly within the statute as interpreted by the Supreme Court and by this Court, and the judgment appealed from is accordingly affirmed.

OPINION ON REHEARING.

CARVER, J.

The facts of this case are fully stated in the original opinion handed down by Judge Porter. Counsel for defendant does not dispute the facts as found by the court, but earnestly contends that the decision reads out of the workmen’s compensation law the words “for support” and the words “at the time of the death”. He admits that plaintiffs were dependent, on their deceased son for assistance in paying for the 126-acre tract on which was owing at the time of the trial $1650.00 besides interest, much of Which was due, but he draws a distinction between such a dependency and a dependency “for support”, insisting it is only the latter kind of dependency that entitles plaintiffs to recover. He also insists that such a dependency must exist at the time of the death, and argues that such is not the case here.

He virtually admits that the decision is within the doctrine of previous cases decided by this court, (the Davenport and Hand cases cited in the opinion) but earnestly argues that those decisions are unsound’because of the same reasons urged against the decision herein, namely: That in them no effect was given to the words “for support” and the words “at .the time of the injury and death”, which words are found in the statute. He also intimates, if he does not clearly claim, that the decisions of the Supreme Court in Gregory vs. Standard Oil Company, 151 La. 227, 91 South. 717, Hamilton vs. Texas Company, 151 La. 692, 92 South. 301, and Heinzelman vs. Board of Commissioners, 149 La. 215, 88 South. 798, are open to the same criticism.

Of course, we are bound by the decisions of the Supreme Court, and would feel obliged to follow them whether we . agreed with them or not.

Of course, too, we should have due regard to the doctrine of stare decisis, and should not overturn the jurisprudence established by our predecessors unless we were clearly convinced that they had erroneously construed the statutes.

We have carefully examined all those decisions in the light of counsel’s criticism of them and our conclusion is that they correctly interpret the law. We also think that the present ease falls within the principles announced in those cases.

There may be cases in which a clear distinction might be drawn between the parents’ need “for support” and their, needs for meeting obligations incurred in speculative enterprises; but we think the facts in this case present no such situation. The father being 58 years old and failing, the mother 47 and sickly, there being two girls, one wholly and one partially dependent on their parents for support, there being’ debt on the property amounting to over $1700.00, a considerable part of which was due, there being other debts amounting to $150.00, besides taxes, and this after paying in on debts $300.00 received one third each from the son, a nephew and a son-in-law, there being no money on hand to meet those obligations, and the revenues from both properties not exceeding the current needs of the family, the productive powers of the parents being on the decline and those of the son on the increase, the son an industrious and trustworthy boy having promised assistance on the new purchase and having actually made contributions not only for that special purpose but also of items of money, clothes, books, etc., coming strictly under the head of support, we think the affairs of the father had been so merged that they must he treated as a whole and ■ that no clear distinction can be drawn between his needs for meeting the balance due on the land purchase and his needs for the support of himself and family, notwithstanding the admission to the contrary made by himself and wife and his daughter.

Certainly the $300.00 above mentioned, obtained from the son, nephew and son-in-law to pay on the new purchase had to be diverted and used to pay on other debts, leaving some of those as well as all of that on the land purchase unpaid.

The situation at the time of the death being as above outlined, we think there was dependency “for support at the time of the injury or death” and that the case falls strictly within the terms of the statute. It is much stronger, we think, than the Hand case, No. 1534 on the docket of this court.

Eor these reasons it is decreed that the judgment of the court heretofore rendered be, and the same is hereby reinstated, and made the judgment of this court.


author: WESTERFIELD, J.

text:
    No. 8635.
    Orleans Appeal.
    DAVID M. DAVIS & COMPANY v. H. SHERMAN, Appellant.
    (November 3, 1924, Opinion and Decree.)
    (December 1, 1924, Rehearing Refused [Dissent]).

      (Syllabus by the Gourt.)

    1.Louisiana Digest, Sales, Par. 123, 124.
    A vendor who refuses to permit his vendee to return goods sold and delivered may sue for the price without having caused the goods returned to his place of business and allowed to remain there under the representation that they will be called for in a short while, to be resold in an effort to minimize the - damages.
    2. Louisiana Digest, Sales, Par. 123, 124; Damages, 92.
    The rule establishing the duty of the vendor to cause goods, the . delivery of which has been refused by the' vendee, to be resold to fix his damages, has no application to a sale perfected by de- - livery.
    (Civil Code, Art. 2555 — Editor’s Note.)
    Appeal from Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit on an open account. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed and amended.
    Sol. Weiss, J. ' B. Cocke, attorneys for plaintiff and appellee.
    J.D. Dressner, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit on an open account. The plaintiff, a wholesale, and the defendant, a retail dealer in women’s clothing, sold and bought respectively, a number of women’s dresses. Several days after the sale and after delivery of the dresses to the defendant’s place of business, defendant called at plaintiff’s store with the dresses and endeavored to have plaintiff take them back. This the plaintiff refused to do, whereupon defendant asked permission to leave the clothing in plaintiff’s store a short while as a convenience, while on an errand in the neighborhood. The dresses were left with plaintiff in this manner and are still in his possession, notwithstanding numerous letters insisting upon defendant calling for them and warning defendant that they would be compelled to pay the price.

There is a faint hearted effort to prove that the dresses were not of the sizes bought, but the evidence is not at all convincing. The principal reliance of the défendant is an insistence upon the necessity of plaintiff’s selling the dresses before recovery can be had of defendant. In other words, defendant claims that admitting his default it was plaintiff’s duty to minimize his damages by causing the dresses to be sold at once and thus fix his loss as the difference between the contract price and the' sum received at the sale.

The principle invoked by defendant is well established. R. C. C. 2555 reads as follows:

“The purchaser, who neglects to obtain delivery of the thing sold, after, having been put in default, is answerable to the vendor for the damage which he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing.
“Note. The vendor, on buyer’s refusal to accept delivery, may sell at private sale, for market value, and recover from buyer the difference between the price so obtained and the contract price.” 30 La Ann. 264, Barthy vs. N. O.

See also Cottam & Company vs. Moises, 149 La. 305.

But in the case before us, we are considering an executed contract of sale. There is here no question of failure to accept delivery. The goods were sold and delivered and the sale consummated.

In Farmer’s Rice Company vs. Koerner, No. 8568 Orl. App., we said:

“A distinction must be drawn between a ease where the sale is inchoate and the goods have not been delivered to the purchaser, an'd one where the sale has been consummated by delivery to the purchaser of the goods sold. In the latter case, the vendor has a right to sue for the price.”

See also 76 So. 568 (Mississippi) and 91 N. W. 330 (S. Dakota).

“Where the performance by the seller is complete so as to pass title to the goods to the buyer the measure of damages .is the contract price.” Cyc. Vol. 35, p. 579.

It is insisted that ladies’ dresses are perishable in the sense that they are subject to frequent changes of style and we are asked to take cognizance of that fact in the absence of proof in the record to that effect. We do not think it material whether the merchandise sold in this case is or may be regarded as perishable, for, as we see it, a vendor is under no obligation to accept return of perishable merchandise delivered to a purchaser or when such merchandise is returned by strategy, he is not obliged to resell it before he can recover the price.

The trial court gave judgment for plaintiff as prayed for without recognizing defendant’s right to the dresses. This inadvertence must be corrected and accordingly, the judgment appealed from is amended by acknowledging defendant’s ownership of the dresses in plaintiff’s possession and in all other respects it is affirmed, plaintiff to pay cost of appeal and defendant all other costs.


author: BELL, J.

text:
    No. 8676.
    Orleans Appeal.
    OTIS C. SNELL, Appellant, v. J. WATTS KEARNY & SONS.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Evidence, Par. 272.
    In a suit for the value of movables alleged to have been sold but not delivered by defendant, evidence as to verbal conversations between the parties had previous to correspondence which consummated the sale, is admissible, together with this correspondence, to make certain that which is uncertain regarding the exact property intended to he conveyed.
    (See Civil Code, Art. 2277 — Editor’s Note.)
    2. Louisiana Digest, Appeal, Par. 625.
    Where issues of fact' are alone involved, the judgment appealed from will he affirmed, unless obviously erroneous.
    Appeal from the Civil District Court for the Parish of Orleans, Division “E”, Hon. Percy Saint, Judge.
    This is a suit to enforce delivery of movable property. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Prowell & Prowell, H. G. Hungate, attorneys for plaintiff and appellant.
    Hall, Monroe & Lemann, attorneys for defendant and appellee.
   BELL, J.

Plaintiff sues defendants for the value of property which he claims defendants failed to deliver to him as part of a sale of certain movables. Appeal is taken from a judgment rejecting his demand.

Only issues of fact are involved in this case, and from the preponderance of evidence offered by defendants without plaintiff’s objection thereto, it appears to be a positive fact that before any correspondence passed between the parties regarding the sale, there was a verbal conversation leading up to the transaction. In this conversation it appears that plaintiff offered to buy all metal scrap material contained in the brick yard of defendants, then under lease to one Campbell. Both defendants corroborate each other as to this conversation, and it is not denied by plaintiff that same occurred. On the contrary, the first letter of plaintiff, dated June 11, 1917,-shows that such previous verbal negotiations were had between him and defendants. It is further shown by the evidence that the brick yard was operated by a former lessee 'under a method requiring the use of metal material and machinery, all of which was discarded when Campbell, the subsequent lessee, took charge and adopted another and different method of manufacturing brick. There is extensive correspondence in the record, some of which, in the absence of the verbal testimony of defendants, and in the absence of their letter of JUne 20, 1917, might justify the contention that some material other than the metal material was included in the sale. However, the verbal, uncontradicted testimony referred to, as well as the subsequent conduct of the plaintiff, and the contents of the above letter, remove all doubt as to the exact property intended to be conveyed. The letter is as follows:

“June 20, 1917.
“Mr. S. J. Campbell,
“Ponchatoula, La.
“Dear Sir:
“We have sold to Mr. O. C. Snell all of the metal material on hand at our yard except such material as is required in the manufacture of brick under the requirements which you are now manufacturing.
“Will you kindly, therefore, deliver to Mr. O. C. Snell all such metal material as you are not using and are not required in your present method of manufacturing brick.
“Yours very truly,
“ENK-E.”

The conduct of the plaintiff, made plain by his own testimony, shows that he intended to buy from defendants only the metal material mentioned in the above letter, and only such metal material as was not being required in lessee Campbell’s then method of manufacturing brick. This intention on the part of plaintiff is made certain from the fact that defendants did not send this letter directly to Campbell but enclosed same in another letter addressed by defendants to plaintiff and reading as follows:

“June 20, 1917.
“Mr. O. C. Snell,
“Hammond, La.
“Dear Sir:
“We have your check, received today, No. 337, on the Hammond State Bank, Hammond, La., and we are attaching hereto order on Mr. S. J. Campbell, Ponchatoula, for delivery of material.
“Yours very truly,
“ENK-E.”

Plaintiff admits the receipt of the above letter, containing the enclosed order-letter to Campbell and admits that he delivered the latter himself to Campbell, before attempting to remove any material of any sort from the yards. He also admits that when he attempted to remove any material other than metal material — such as lumber and brick — Campbell at once protested, even threatening him with a gun, for persisting in such an attempt.

It is impossible to conceive that plaintiff, knowing, as he was bound to know, the contents of the order-letter, could have presented same to Campbell without immediately protesting to defendants that he had bought other material than that mentioned in the order-letter. The evidence, however, shows that he at no time questioned the contents of the order-letter to either Campbell or the defendants until several months afterwards and then only through his attorneys. Meanwhile, plaintiff was attempting, as best he could, to remove other material than that mentioned .in the order-letter. These are all the salient facts which we find in the record, and they are such as in our opinion thoroughly justify the judgment rendered by the trial court.

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


author: CLAIBORNE, J. WESTERFIELD, J.

text:
    No. 8695.
    Orleans Appeal.
    HAMMOND STATE BANK v. PERRIN AND PIERREPONT, Appellants.
    (November 3, 1924, Opinion and Decree.)
    (December 1, 1924. Rehearing Refused. [Dissent]).
    (January 7, 1925. Decree of Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Bills and Notes, Par. 116.
    Holders of checks in due course, whether as owners, pledgees, or otherwise, who have acquired possession of the same • within a reasonable time after their issuance for a valuable consideration, are not bound by equities between the drawers and the payees.
    2. Louisiana Digest, Bills and Notes, Par. 116.
    A check dated New Orleans, August' 4th, mailed to a payee in Hammond and by him transferred on August 10th is within a reasonable time.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit upon a check. Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. W. Spillar (Hammond, La.), attorney for plaintiff and appellee.
    W. Catesby Jones, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit upon a check of One Hundred and Fifty Dollars drawn by the defendants upon the Hibernia Bank to the order of Walter A. Hurst, dated August 4, 1920, and endorsed: “For deposit”; signed “Walter A. Hurst”.

The plaintiff alleged that on August 10, 1920, Hurst presented said check to plaintiff and requested payment of same, when plaintiff paid the same; that plaintiff then demanded payment of said check from the Hibernia Bank, which refused to pay the same for the reason that the drawers of said check, defendants herein, had stopped payment of the same. Plaintiff alleges that it is “a holder in due course” and as such entitled to judgment in solido against the defendants and they pray for judgment against them accordingly.

The defendants denied all the substantial allegations of the petition and averred: That on August 6, 1920, Walter A Hurst stated to them that their check to him dated August 4, 1920, had been lost; that thereupon they delivered to him their check dated August 6 on the Hibernia Bank for $150 in.full payment of all indebtedness to him, which was endorsed by Hurst and cashed by the Western Union Telegraph Company; that they at once notified the Hibernia Bank to stop payment of their check of August 4, 1920, payable to Hui-st, as he had been paid in full; that it was only on August 10th that' plaintiff cashed the defendant’s check dated August 4th, which was an unreasonable time after the-issuance of the check.

There was judgment for 'plaintiff and defendants have appealed.

Of course, if the plaintiff is a “holder in due course” the judgment in its favor must be affirmed.

- See. 52 of Act 64 of 1904, p. 155, reads as follows:

“A holder in due course, is a holder who has taken the instrument under the following conditions:
“1st. That it is complete and regular upon its face;
“2nd. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3rd. That he took it in good faith and for value;
“4th. That at the time it was negotiated to liim he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” 8 C. J. 464, S. 684.
See. -57 of the Negotiable Instrument Act, p. 156, provides that:
“Sec. 57: A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.”

The plaintiff satisfies all the requirements of the law.

It is not necessary in order to be a holder in due course, that one should have acquired the instrument “as owner”. Any holder having advanced money on the faith of the instrument as purchaser, pledgee or creditor, or who has otherwise acquired rights to or upon the instrument, is “a holder in due course.”

A pledgee is as much a holder in due course as a purchaser and owner.

In King vs. Gayoso, 8 N. S. 373, decided in 1830, the court said:

“It is a general principle of commercial. law that the maker of a note, payable to order, engages to pay its amount to the innocent endorsee, who took it in the usual course of business, for a valuable consideration, whatever claim the maker may have against the payee, and we are ignorant of any exception to the rule, in favor of a pledgee.
“The only difference in the commercial law, between the absolute holder for value and the party who takes the note as collateral security for money advanced, so far as the right of recourse against the maker is concerned, seems to be this: That the former may recover in full, and the latter, if there be equities, is restricted to the extent of his advances. In other words, he is considered as a bonafide purchaser pro tanto”. Matthews, Finley & Co. vs. Rutherford, 7 La. Ann. 227, C. C. 3170; President, Etc., of Louisiana State Bank vs. Gaiennie, 21 La. Ann. 556; Mallard vs. Aillet, 6 La. Ann. 93; R. A. Nott vs. Watson, 11 La. Ann. 664; Succession of Kugler, 23 La. Ann. 456; W. C. Broadwell vs. P. M. Kelly, 14 La. Florat vs. Marchand, 26 La. Ann. 741; Mechanics’ Building Assn. vs. Ferguson, 29 La. Ann. 549; Saloy vs. Hibernia Nat. Bank, Ann. 456; Jones vs. Byrne, 16 La. Ann. 202; 39 La. Ann. 91, 1 South. 657.

The facts of this case are extremely simple.

The defendants owed Hurst money, and upon August 4th, at his request, they mailed him the check sued on for $150; on August 6th Hurst represented to the defendants that he had not received their check, that he was in urgent need of money, and requested them to send him $150 without delay. This the defendants did by another check to Hurst for $150, dated August 6th. They thereupon stopped the payment of the first check for $150, dated August 4th, which is the check sued on. But on August 10th Hurst was in possession of the check of August 4th and proceeded to plaintiff bank, and there requested them to cash the check. The cashier of the bank thus states what occurred :

“I would like to state that the credit of W. A. Hurst was not good, and there were instructions given that W. A. Hurst’s account was not to be overdrawn under any circumstances.
“He presented this check for payment to the teller, and it was handed to me to pass on. I knew Mr. Perrin, this firm that drew the check; I had reason to believe that they were responsible, and I told the teller to pay the check. It was paid.”

The whole transaction is thus explained to be an advance of money by the bank to Hurst on the credit of this check.

The Cashier used the expression “paid”, but he did not use the word in its legal sense. He did not intend to pay the check which was not drawn on his bank, nor to extinguish the check in its legal aspect. All he meant and all he did, was to pay to Hurst the amount of the check on the faith and credit of the check, and to keep the check “for deposit” to the credit of Hurst’s account and for collection as security to reimburse itself the amount advanced to Hurst.

The test of the question whether the plaintiff took the check merely as a deposit or also as security for cashing it, is: Would the bank have advanced the amount of the check if it had not held it for collection? With the knowledge that the bank had that Hurst’s credit 'was not good and that he could not overdraw it is evident that it would not have done so.

,“,In the case of Rosanq'uet vs. Dudmans, Lord Ellenborough held, that á banker might resort to bills deposited with him by a customer who had overdrawn and that the right of the former, on such bills, could be extinguished by payment only.” King vs. Gayoso, 8 N. S. 374.
“The reports .and commentators abound in authorities to the effect that the bona fide holder will be protected against such equities where - he has taken the note as security for advances made upon its credit.” Matthews, Finley & Co. vs. Rutherford, 7 La. Ann. 226.
“Where a check is deposited in a bank by a customer indorsed for deposit the bank is a bona fide holder of a negotiable instrument for value without notice of any fact which would invalidate the title of the indorsers from whom they obtained it and all commercial principles' and usages require that such a title should be protected.” 3 Words and Phrases, 2864.
“A bank taking a note before maturity as collateral security for money loaned becomes the holder in good faith for a valuable consideration.” President, Etc., of Louisiana State Bank vs. Gaiennie, 21 La. Ann. 555.
“A bank which credited the amount of a cheek of the payees and permitted them to draw against it, before it received notice through the clearing house that the check had been dishonored is a holder for value.” 47 N. E 196.
“A check received fropi a person who obtained it unfairly will entitle the party to recover on it if he took it without any knowledge.” Allard, et al., vs. Lobau, 2 M. 319; Cross vs. Richardson, 2 M. 326.

The defendants objected to any testimony showing the details of the transaction on the ground that it tended to contradict the endorsement on the check which stated that it was left with the bank “for deposit”. The testimony did not contradict the endorsement. It established that the plaintiff had advanced or paid to Hurst the amount of the check which had then been left with it for deposit and collection. Far from being inconsistent, one was a corailary of the other in transactions of that kind.

But the rule appealed to applies only to the parties to the contract. The defendants were not parties to the agreement between Hurst and the bank. No. 7971 Ct. App.

Defendant also contends that plaintiff was not a holder in due course for the reason that the time that elapsed between the date of the check, August 4th, and the date it was cashed by the plaintiff, August 10th, was so long that it should have aroused the suspicions of the plaintiff and put it on guard, and that consequently it was not a holder in good faith without notice.

No authorities whatever are quoted by the defendants in support of their proposition.

The check was dated New Orleans; it was mailed to Hurst at Hammond; Hurst was running a sawmill eight miles out of Hammond; he could not have received it prior to August 5th. There is no evidence to show when he received it. Five days, therefore, intervened between the time he received the check and the date upon which he procured the money from the plaintiffs.

In Saloy vs. Bank, 39 La. Ann. 93, the court adopting the language in Fairex vs. Beer, 37 La. Ann. 821, said: “The transferee for value of negotiable securities not due, from the possessor and apparent owner, gets a title which cannot be defeated without proof of actual or constructive motive of the imperfect title of the transferor amounting to mala tides.”

The delay, therefore, between the date of the check and the date of its transfer must be such as to amount to “constructive notice” against which it would be “mala tides”, or bad faith for the transferee to close his eyes.

The Negotiable Instruments Act makes the provisions of the Act applicable to a Bill of Exchange payable on demand apply to a check. Sec. 185, p. 173.

Sec. 53 says: “Where an instrument ' payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.”

What is an unreasonable time is answered in Sec. 193:

“In determining what is a ‘reasonable time’ or an ‘unreasonable time’ regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.” 8 C. J. 408.
“A check, is not overdue for the purposes of transfer, unless there has been unreasonable delay in presenting it. One who takes it without notice of equities or defenses within a reasonable time after its date or delivery is a bonafide holder. Ordinarily, one day, or even several days, is not an unreasonable time, but a delay of several weeks or months is unreasonable.” 8 C. J. 413.

The holder of a cheek though taken some days after its date, takes it free from all equities. 8 Bush (Ky.) 357.

A check drawn on Christmas' eve does not become stale in six days so as to put the bank on inquiry. 56 S. C. 320.

A check dated New York, June 1st, transmitted to Kansas and arriving there on June 8th is not overdue to such an extent as to put a purchaser on inquiry. 180 N. Y. 346.

“The rule is, that the fact that the holder has taken a check from the payee four days, or even more, after its date, unconnected with other suspicious circumstances, does not subject him to equitable defenses in an action by him against the drawer.” 177 Ind. 240-252; 5 R. C. L. 536.

There is not the least suspicious circumstance connnected with the transfer of this check by Hurst to the plaintiff bank. The only fault attributed to Hurst was a tendency to overdraw his account; otherwise his reputation at the time was good..

But his overdrawing did not impugn his honesty and was not calculated to make the plaintiff believe that the amount of the check was not justly due to Hurst.

We see no merit in the defense, in law or in fact, and the judgment is therefore affirmed.

WESTERFIELD, J.

I agree with my colleague in this conclusion of law, but differ in my appreciation of the facts. The bank' advanced nothing on the check of defendant but on the personal check of Hurst. It was therefore .not a holder in due course. For these reasons I respectfully dissent.