author: ODOM, J.

text:
    No. 2117.
    Second Circuit.
    J. P. BROWN v. N. K. PARISH, Appellant.
    (December 3, 1924, Opinion and Decree)
    (January 22, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 344; Landlord and Tenant — Par. 32.
    Where a lease for five years must be renewed from year to year, the uncontradicted testimony of the lessor, the plaintiff, that he did not renew it at the end of the first year must be taken as a fact.
    2. Louisiana Digest — Estoppel—Par. 37, 38, 39.
    The reference of the lessor to a lease as a “five-year lease” does not estop him from showing that it was to be renewed at the end of each year but had not been renewed.
    3. Louisiana Digest — Estoppel—Par. 22; Registry — Par. 7.
    A public record is an available means of information as to questions of title, and one who does not take advantage of it cannot claim an estoppel against one who merely fails to furnish such information. The lease in this case . was recorded.
    4. Louisiana Digest — Courts—Par. 128.
    In a suit involving a lease for $100.00 per month to be renewed every' year for 'five yearsi the amount in dispute is $1200.00 for one year, and consequently the Court of Appeal has appellate . jurisdiction.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This- is a suit to .eject tenant from leased premises.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    W. M. Phillips & T. Overton Brooks of Shreveport, attorneys for plaintiff and appellee.
    Slattery & Slattery of Shreveport, attorneys for defendant and appellant.
   ODOM, J.

Plaintiff is the owner of certain property in the city of Shreveport, known as 2916 Gilbert St. In the month of April, 1922, he leased his property to one C. M. Anthony, under written contract which reads, in so far as it is necessary to quote the same as follows: “For the sum of One Hundred Dollars per month, payable in advance each month, beginning March 6, 1922, and extending one year from then, the said Brown does hereby lease to the said party of the second part (C. M. Antony) that said portion of the building now occupied by said business, and said party of the second part accepts said lease on said terms, it being agreed that he may have said lease renewed at the end of his lease on same terms and at same price per month for another year, and again and again, to cover five years from March 6, 1922 — but it is agreed that said party of the second part shall not sub-lease any part of said property without the written consent of said J. P. Brown.”

On January 10, 1924, the owner of the property, J. P. Brown, filed this suit, setting up the fact that he had leased the property to C. M. Antony, under the above quoted contract and he alleges “that at the end of the year said lease was not renewed for an additional year, as required by the terms of said contract, and that since said date said Antony has been a tenant from month to month.”

And he further alleges that in the latter part of the year 1923, said Antony sold his business to N. K. Parrish, and that since said -date said Parrish has been suffered to remain in said premises and pay rent as a tenant from month to month, and that "on Dec. 15, 1923, he notified said Parrish to vacate said premises at the end of the month beginning Dec. 6 and ending Jan. 6th, 1924, and that notwithstanding said notice to vacate said tenant has refused to do so and still occupies the property.

In paragraphs 6-7-8 & 9 of his petition plaintiff sets up as an alternative plea, in case the court should hold that the lease was renewed at the end of the first year, that Antony, the original lessee, breached the contract by sub-leasing to one H. L. King a portion of the premises without his written consent.

However, his plea has been abandoned and plaintiff rests his case on the sole ground that the lease was not renewed at the end of the first year.

Plaintiff prays that a rule issue to the said N. K. Parrish, ordering him to show cause why he should not be ejected from said premises and ordered to re-deliver the sam'e to him, and that upon trial there be judgment, “ejecting said Parrish from said premises and to pay all costs of this suit and rent on said premises at the rate of One Hundred Dollars per month from -January 6, 1924, to such date as such premises may be re-possessed by the plaintiff herein.”

Defendant filed answer in which he admitted plaintiff’s ownership of the property, admitted that the property was leased to C. M. Antony, as alleged, admitted that in the latter part of the year 1923 he had acquired the interest of said Antony in the business, and admitted that on Dec. 15, 1923, the plaintiff notified him to vacate the premises. But he especially denies paragraph 3 of the plaintiff’s petition in which it is alleged that the lease was not renewed. And further answering, he sets up that prior to the time he purchased the business from Antony, which was in the latter part of the year 1923, several months after the expiration of the one-year lease, “he was told by the said Antony that the property was leased for a period of five years from March 6, 1922, at a monthly rental of One Hundred Dollars, that he then called on said Brown, to have this statement verified,' he not knowing that said lease was in writing or any of its terms otherwise than as disclosed by the said Anthony, and the said Brown told him that the property was leased for a term of five years, that your defendant, acting on the statement of said Brown, lessor, purchased the said business”, add he sets out that the fact that the lease was in a desirable neighborhood and for a term of years was a material consideration of said purchase and that he “would not have otherwise bought it and the fixtures,” and that the said Brown “with full knowledge of the facts above mentioned, and yet leading your defendant to believe that he was taking over the business as it stood and having told him that the property vas under lease for five years from March 6, 1922, is now estopped to claim that st id lease had been forfeited and its terms violated and having further held out to you ■ defendant that said property was under 1 tase for five years, is now estopped to dei y this fact, which estoppel in both instances as above alleged is especially pleaded in for of plaintiff’s rights herein.” And he further pleads in answer that in as much as plaintiff knew that he, defendant, was under the impression that the property was under a five-year lease, that it was plaintiff’s duty, in all fairness, to disclose to him, defendant, that said Antony had not renewed it and that plaintiff should have advised defendant to renew ■ the lease, if indeed.it had not been renewed by Antony.

There was judgment in the lower court ordering the defendant ejected from the premises without reference to the amount then due or to become due. The defendant appealed. Plaintiff has not answered the appeal and asked that it be amended. We must assume that he has abandoned the claim for rent due.

Plaintiff sets out in his petition that Antony, the original lessee, had- sub-leased a portion of premises, thereby violating the express provision of the contract “that said party of the second part shall not sub-lease any part of said' property without the written consent of the said J. P. Brown.”

But this plea has been abandoned, as it was not well founded, the proof, indeed, the admission of plaintiff found in the record, showing that plaintiff had given his consent in writing to the transfer of the lease by. Antony, to Parrish, so that plaintiff’s sole ground for recovering now is that the lease was not renewed at the end of the first- year, as the contract provided that it might he.

The court must, therefore, determine whether as a matter of fact the lease was renewed at the .end of one year for an additional year, and if not, then whether plaintiff has estopped himself to deny the existence .of "the lease for the full period of five years, as is contended by defendant.

On the question of renewal of the lease, the plaintiff as a witness in his own behalf, swears positively that there was no renewal. He says he did not discuss the renewal of it with Antony, or any one else, either before or after the expiration of the first year. . He says that in the month of January, 1923,-Mr.-Parrish, defendant, went to him to hire him, hut that the lease was not mentioned.

He was asked on cross-examination if after giving Mr. Parrish notice to va'cate¡ he did not go to the store and have a conversation, with Parrish, about - the lease, in the presence of Mrs. Parrish.

He answered that he did go to -the -store for the purpose of buying them out and ‘Mrs. Parish said they had a four-year lease and I says ‘no, you have not,’ so that was all that was said.”

He says, however, that he did .make a statement to Mr. Antony that there was a five-year lease on the property, that is, that it could be renewed from year to year for five years. This statement to Antony, he says, was made about the time he gave Antony permission to transfer the lease to Parrish, which was, according to the admission in the record, on Jan. 10, 1923. Such a statement could not affect - the contract for two reasons — first, Antony was the lessee and signed the lease contract and of course was familiar with its terms, and, second, the statement was made on or about Jan. 10, 1923, practically two months prior to the expiration of the first year.

Mr. Antony, was not called as a witness by either the plaintiff or defendant.

Defendant called one H. L. King, as a witness, King testified that he had occupied ,a portion of premises, as a tenant since August'1922. He says that Brown, the plaintiff was frequently in his place of business and that about two or three months ago (the case was tried on Jan. 17, 1924, so that the conversation took place in October or November 1923) Brown was in his place and asked on what terms he held the place and “I told him I had leased for five years, . or four years, whatever lease, the other .fellow had, I had the same lease, pontjpued from year to year.”

He says that was about the time Anthony sold to Parrish.- The testimony shows that Anthony sold to Parrish in the latter part of the year 1923, probably in October or November, several months subsequent to the expiration of the first year of the lease. It will be noted that King, does not say that Brown, the plaintiff made any statement to him about the lease being for five years or that it had been renewed.

N. K. Parrish, as a witness in his own behalf said that he had a conversation “out on the Greenwood road”, with Brown with reference to the lease and then “called him aside and said to him, Mr. Brown I am about to buy Mr. Kelly out, what chance is there to get a transfer of the lease to me, and he says ‘all right’, that he' was tickled to death to get Kelly out of there, and I says will you give it to me in writing and he says I will give it in writing to Mr. Anthony, that night, and I says that is perfectly all right, I will buy it. That is the only conversation I had with him,” and he was asked:

Q. “During that conversation did you have any talk with him about the terms of the lease?”
A. “Well I asked him how long it was leased for and he said five years, with four years more.”
Q. “Did he' tell you anything about the lease, that there was an obligation to renew it each year?”
A. “No sir.”
Q. “He just simply made the statement that it was a five-year lease?”
A. “Yes sir, and I would^ have four more years.”

The conversation took place before Brown, gave his consent to the transfer, on Jan. 10, 1923, and was therefore, two months or- more prior ' to the expiration of the first-year.

Parrish had another conversation with Brown, about the lease, but it seems that was about the time or possibly after the suit was filed, for he speaks about ,a compromise of the matter.

On page 19 of the testimony, Parrish says he finally purchased the lease in Oct. 1923. (about seven months after the expiration of the first year) that he did not see the lease contract as it was recorded, was at the court house, and he took their word for it.

And on page 20 of the testimony, he says “I went to se him about the- lease, I was fixing to buy Kelly out and would not have bought Kelly out if he was not willing to transfer the lease to me”. And he was asked: “Did you ask Mr. Brown to see a copy of the lease?” “No sir.”

Q. “You knew the lease was in writing, and was recorded?”
A. “Yes sir.”
Q. “You did not examine it?”
A. “No sir I did not.”

Mrs. Parrish, wife of defendant was, called as a witness for him, and was asked-if she had a conversation with Mr. Brown, she said she had, but not until after Mr. Parrish had purchased the store • from Mr. Anthony, and on further examination it was found that his conversation took place after Brown had determined to disposses the lessees.

- We have referred to and quoted all the testimony in the record which we think is pertinent to the question whether the lease was renewed and the question of estopel.

This testimony does not warrant us ,in holding that - the lease was renewed at the end of the first year.- Brown, says'he-did* not renew it, and his testimony on this point stands uncontradicted. He did say to Parrish in January 1923, previous to the expiration of the first year that it was a a five-year lease; and so it was in the ordinary acception of that term.

We usually refer to leases of the tenor of this one as “five-year leases’’.

It was an unconditional lease for one year, with the option in the lessee to renew it from year to year for four additional years. None of the statements attributed to the plaintiff can be construed as an agreement to renew the lease. The only reasonable construction to be placed on his remarks is that the lessee had a five-year lease if he chose to exercise his opinion to make it such.

On the question of estoppel, can the doctrine of estoppel “in pais” or equitable estoppel, be successfully invoked against the plaintiff under the facts of this' case? We do not think so.

“A false representation of concealment of material facts is an essential element of estoppel;” Bryan vs. Bonvillan, 11 La. 462, Equitable estoppel or estoppel by conduct is said by Bishop to have its foundation in fraud. “Representations to constitute an estoppel must be made to induce the other party to act, and must have been inducted to act.”

Rlaintiff made no false representations to defendant. The statement that the lease was a five-year lease was not false. Plaintiff by agreeing that the lease might be renewed from year to year for a full five-year period granted to the lessee a complete option to bind his property for that period, under such conditions it is not a false representation for a landlord to say that he has granted a five-year lease.

Estoppel is not favored in law and should • not be permitted except in clear cases.

See Honor vs. McDonald, 52 La. Ann. 396, 27 South. 91; Harvin vs. Blackman, 108 La. 426, 32 South. 452.

This is by no means a clear case’ and we see no reasons for invoking it.

There is another phase of the case which should not be overlooked. Defendant knew that the lease was in writing, and he' knew it was recorded “at the court house”. He had every facility for familiarzing himself with its terms.

We find the following in 16 CYC. page 738.

“As a corrolary to the proposition that the party setting up an estoppel must have acted in reliance upon the conduct representations of the party sought to be estopped, it is as a general rule essential that the former should not only have been destitute of knowledge of the real facts as to the matter in controversy, but should also have been without convenient or ready means of acquiring such knowledge.”
“A public record is an available means of information as to questions of title, and one who does not take advantage of it can not claim an estoppel against one who merely fails to furnish such information”. This doctrine is supported by decisions from many of the states of the Union 'as well as Federal reports.

In Frantz vs. Fisk, 125 La. 1013-1033, 52 South. 131, the court said:

“With respect to the second pair (earrings) Firk is not in a position to invoke equitable estoppel. For him to be in position to do so it would be necessary that he should not only have been destitute of knowledge of the real facts he should also have been without convenient or ready means of acquiring such knowledge.”

Parrish had every facility for giving first hand knowledge of the contents of the lease in this case. The lease was on record at the recorder’s office in the city where the property and business were located and he knew it. He failed to read it. He is not in position, therefore to plead estoppel.

We find and hold that the lease was not renewed at the end of the year that plaintiff is not estopped to set up that plea.

This is urban property. The reeonduction which took place at the end of the year was from month to month. No citation of authority is necessary on this point as there is no dispute about it. Defendant was therefore occupying the property on Dec. 15, 1923, under a month to month lease. On that date plaintiff served notice on him to vacate the premises at the end of the month ending Jan. 6, 1924.

He refused to do so and still refuses. The lessor’s right to eject his tenant at the expiration of the lease cannot be questioned. C. C. Art. 2713.

Act 46 of 1918, p. 71.

The month to month lease ended on the 6th day of each month. Plaintiff gave more than ten days’ notice.

On the question of jurisdiction. Plaintiff, appellee, filed a motion in this court to dismiss the appeal on the ground that the amount in dispute does not exceed $100.00 He has withdrawn that motion.

Defendant, appellant, also filed a motion to have the case transferred to the Supreme Court on the ground that this court has no jurisdiction. He alleges that the case was appealed to this court through error. We think this court has jurisdiction. The amount in dispute, ^according to plaintiff’.s petition exceeds $100.00 but does not exceed $2000.00. The monthly rental under the contract is $100.00, or $1200.00, for one year. The lease had four more years to run provided the lessee exercised his option to renew it, but it could not be renewed for more than, one year at a time so ■ that the value of the lease could not exceed $1200.00. There was no proof made of the value of the right to renew the lease.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court be affirmed, appellant to pay all costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 8680-8681.
    Orleans Appeal.
    ALEX WOLDERT CO., INC., v. JOS. SAMUEL CO., INC., Appellant; TEXAS & PACIFIC RAILWAY COMPANY, Cited in Warranty, Appellant.
    (December 1, 1924, Opinion and Decree.)
    (December 15, 1924, Rehearing Refused.)
    (February 3, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 42; Carriers of Passengers and Goods, Par. 104.
    The transfer by endorsement of a bill of lading to shipper’s order vests title in the transferee.
    2. Louisiana Digest, Evidence, Par. 342; Appeal, Par. 636.
    Positive and affirmative evidence will outweigh proof of circumstance as suggesting improbability.
    Appeal from Civil District Court for the Parish of Orleans, State of Louisiana, Division “B”, Hon. Fred D. King, Judge.
    This is a suit for the value of the shortage in a shipment of pecans. The T. & P. was cited in warranty.
    There was judgment in plaintiff’s favor and against the defendant and in defendant’s favor and against the railroad company on the call in warranty. Both parties cast have appealed.
    Judgment reversed.
    Merrick & Schwartz, attorneys for plaintiff and appellee.
    Morris B. Redman, Quintero & Quintero; Spencer, Fenner, Gidiere & Phelps, C. E. Dunbar, attorneys- ■ for defendant and appellant.
   WESTERFIELD, J.

The plaintiff, a nonresident corporation; purchased, through Lazare' Levy of New Orleans, a carload of pecans from the defendant, Jos. Samuel Co., Inc. The pecans were loaded at Derry, Louisiana, in a car of the Texas & Pacific Railway Company and a ".bill of lading issued by the said railroad to defendant. The bill of lading called for 305 sacks of pecans of the aggregate weight of 35,559 pounds, consigned to shipper’s order, Chicago, Ill. Defendant, who had sold the pecans to Levy of New Orleans, for 21%f per pound, at once endorsed the bill of lading in blank, delivered same to Levy and received his check in settlement. Levy attached the bill of lading to a sight draft covering the value of the pecans at the rate of 22%^ per pound, drawn upon plaintiff. The .draft was paid upon presentation and plaintiff received the pecans some days thereafter.

Upon arrival of the pecans in Chicago, the freight notice sent plaintiff indicated a shortage of about 4,000 pounds, and when plaintiff weighed the shipment later, this shortage was confirmed.

. Plaintiff sues defendant for the value of the shortage at the rate of 22%^' per pound. Defendant denies liability, alleging that it delivered the full weight called for by the bill of lading to the railroad company and calls the railroad company in warranty.

There was judgment below in plaintiff’s favor and against the defendant and in defendant’s favor and against the railroad company on the call in warranty. • Both parties cast have appleaed.

The first question for our consideration is whether defendant undertook, or must be held to responsibility for, delivery of the pecans in Chicago. The sale was F. O. B. shipping point and the rule of law is under such circumstances that delivery to the carrier is delivery to the buyer who thereby acquires the title to the goods and assumes the risk in transit. Plaintiff, however, contends that this rule is inapplicable where the shipper is the consignee, as in this case, and where shipping instructions as to a designated carrier are disregarded, as was done here, citing the following authorities:

Eldorado Jewelry Co. vs. Werner (1910), 156 Ill. App. 315.

Woodbine Children’s Clothing Co. vs. Goldnamer (1909), 134 Ky. 538, 121 S. W. 444.

Wheelhouse vs. Parr, 141 Mass. 593.

St. John Brothers Co. vs. Falkner (1921), 237 Mass. 399; 130 N. E. 51.

Hills vs. Lynch, 3 Robt. (N. T.) 42.

Oneida Knitting Co. vs. Popular Dry Goods Co. (1918), 202 S. W. (Tex.) 811.

Sohn vs. Jervis, 101 Ind. 578.

Libby vs. Ingalls, 124 Mass. 503.

McCormick vs. Joseph, 77 Ala. 236.

Ala. G. S. E. Co. vs. Mt. Vernon Co., 84 Ala. 173.

The position of plaintiff is well taken as far as it goes, but it is overcome by the fact that Lazare Levy Co., whom we hold was the agent of plaintiff, accepted the bill of lading as drawn and paid for the pecans immediately, without protest or complaint as to the routing of the shipment. That Levy was plaintiff's agent'cannot be disputed. Defendant dealt only with him and was paid by him promptly upon presentation of the bill of lading, Levy being reimbursed by means of the sight draft, heretofore referred to, on a basis of one cent per pound more than he paid defendant, the one cent evidently representing his commission. The endorsement of the bill of lading to Levy vested title in him as plaintiff’s agent. Scheurman vs. Monarch Fruit Co., 123 La. 55. Uniform Bills of Lading Act (Act. 94 of 1912), Section 32.

■ The next question to he determined is whether the defendant delivered the weight of pecans called for by the bill of lading.

The pecans were weighed at Derry, Louisiana,’the shipping point, on a railway scale, by two employees of the railway and an agent of defendant. The actual weighing was done by the employees of the railway, one of whom called out the weights and the. other wrote them down, defendant’s agent likewise taking the weights. The additions were made by mental calculation and verified on an adding machine. As the sacks were weighed they were loaded on the car and when all pecans had been weighed and loaded the car was sealed and the bill of lading issued. The seals, according. to the evidence, were undisturbed when the car reached Chicago, but at one point en route an agent of the railway company put an extra seal on the car because he states the seals placed on the car at the shipping point were what is known as “slip seals”. However, when the seals were removed in Chicago, the contents gave every evidence of having been tampered with. Several sacks were “slack”, indicating that part of their contents had been removed and one sack was empty. Plaintiff has calculated the overage weight of the sacks as shipped and as weighed at destination and counted the sacks. He has convinced us of the difficulty of reconciling the shortage in weight with the condition of the sacks as delivered, but as against the positive evidence, to which we have alluded, concerning the careful weighing and checking at the shipping point, the circumstances suggesting improbability cannot prevail.

The views we have expressed make it necessary for us to consider the able and elaborate argument of counsel for the railway company called' in warranty herein.

For the reasons assigned, the judgment appealed from is reversed and it is n'ow ordered that there be judgment for defendant dismissing plaintiff’s claim without prejudice to plaintiff’s right of action against the Texas and Pacific Railroad Company called in warranty herein. It is further ordered that defendant’s call in warranty be dismissed and that plaintiff bear all costs.


author: BELL, J.

text:
    No. 8704.
    Orleans Appeal.
    ROZELL McWILLIAMS v. H. STACKHOUSE.
    (December 1, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Brokers, Par. 19.
    Where a written offer and acceptance for a sale of real estate contains a conditional obligation on the part of the offerer in favor of the broker who negotiates the sale, to protect the broker against any loss resulting from the failure of the offerer to purchase the property, damages for loss of commission, may be recovered by the broker, when the obligation to purchase is repudiated without lawful cause.
    (Civil Code, Art. 1930. Editor’s note.)
    Appeal from Civil District Court for the Parish of Orleans, Div. “C”, Hon. E. 'K. Skinner, Judge.
    This is a suit for damages ex contractu.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    F. Rivers Richardson, attorney for plaintiff and appellant.
    W. B. Hamlin, attorney for defendant and appellee.
   BELL, J.

Plaintiff claims damages ex contractu from defendant under an agreement forming part of a certain written offer, made by defendant, for the purchase of real estate from a third party. The pertinent clause in the agreement reads as follows:

“In case I fail to comply with'above offer, if accepted, I agree to pay all the loss and damage the said R. McWilliams may sustain by my failure to comply with my agreement and also attorney’s fees which the said R. McWilliams may incur in suit to recover said loss and damage.”

The facts in this case conclusively establish that defendant did refuse to comply with the offer of purchase without just or legal cause, and after being put in default. It follows, therefore, however reluctant the Court may be to allow damages in a case of "this sort, that the contract must be enforced, same not being on its face contra bonos mores, and not appearing to have been entered into under any error of law or fact.

Upon proof of damages plaintiff must recover. We conclude from the evidence that the plaintiff is bound to have lost the particular commission or fee which he would have realized had the proposed sale been consummated. That it was not consummated is solely due to defendant’s subsequent refusal to purchase.

There is evidence in the record, which under issues established by the pleadings, was erroneously admitted, though properly objected to by plaintiff’s counsel. This evidence is to the effect that a subsequent sale of- the same property was made to a party other than defendant; that this second sale occurred eight months after the agreement now before us, and that plaintiff was the real estate agent in both instances. Defendant’s liability to plaintiff can in no manner be affected by this latter transaction, in which plaintiff appears to have received a commission of three per cent, on $3,250.00, the price for which the property was finally sold. It is argued for defendant, though not pleaded as a defense, that no loss of commission was, therefore, incurred.

The measure of damages' claimed in the petition are $150.00 as commissions for the sale and $25.00 as attorney’s fees for instituting this suit. While the written document filed in evidence goes to show defendant’s offer to purchase and also shows the owner’s acceptance of that offer, and while the whole transaction appears to have been executed on October 21, 1919, the testimony of plaintiff’s agent who handled the transaction, clearly establishes that defendant could not have known at the time of the offer that any such unusual commission as $150.00 was to be paid plaintiff. This agent testifies that she secured defendant’s signature to the document on the above date and brought the signed offer to purchase to plaintiff’s office, and that he in turn subsequently secured the owner’s signed acceptance-thereto. Plaintiff’s ■ letter of October 22, 1919, advising defendant that his offer had been accepted is additional proof that defendant could not have known, when offering to purchase, that he would have to assume any such unusual commission in the event of his repudiating the contract. We think, therefore, that he should not be made to pay any more than the customary commission of 3 per cent, or what amounts in this case to the sum of $94.50. There is no evidence whatever in the record showing any agreement between defendant or his attorney as to fees to be paid the latter for instituting this suit. Non constat, that the employment, if made, was upon a contingent fee or one based on commission. Absence of proof on this item of damages causes us to conclude that no such damages have been incurred, and none should be allowed.

It is, therefore, ordered that the judgment appealed from be reversed and set aside, and that there now be judgment in favor of Rozell McWilliams, plaintiff, and against Horace Stackhouse, defendant, in the sum of Ninety-four and 50/100 Dollars ($94.50), with legal interest ’ thereon from November 1, 1919, until paid, and for costs in both courts.


author: CLAIBORNE, J.

text:
    No. 8707.
    Orleans Appeal.
    MRS. ANNIE WILLIAMS, WIFE, AND CHILD AND HER HUSBAND, v. HERMAN PERLOFF.
    (December 1, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Marriage, Par. 73, 74, 283.
    Though the husband may sue alone for a community asset, the suit in the name of the wife as plaintiff will satisfy the law when the husband authorizes his wife.
    (Code of Practice, Art. 106, 107 — Editor’s Note.)
    Appeal from Civil District Court, Hon. Fred D. King, Judge.
    Plaintiff and her husband sue for the recovery of furniture.
    • Judgment in favor of the plaintiff wife decreeing her to be the sole owner of all the furniture claimed and ordering the defendant to deliver it to her; and dismissing defendant’s demand in reconvention. Defendant appealed.
    Judgment amended and affirmed.
    George Montgomery, attorney for plaintiff and appellee.
    Benj. Y. Wolf, attorney for defendant and appellant.
   CLAIBORNE, J.

The Plaintiff wife avers that she purchased from the defendant the following furniture on the installment plan, viz.:

1921
March 21 — 1 Kitchen Safe____________________$ 22.50
April 16 — Bed, Spring and Mattress.. 75.00
April 30 — 1 Art Square and 4 Win- . dow Shades ______________________________________ 10.50
April 30 — 1 Chifforobe____________________________ 60.00
May 25 — 1 Ice Box__________________________________ 15.00
June 27 — 1 Washstand and Dresser____ 75.00
.$258.00 Making a total of.

That at the time of said purchase she resided with her husband at No. 1623 Tulane Avenue over defendant’s store and the furniture was delivered to her there and was actually in her possession until August 1, 1921, when she stored the same with the defendant until such time as she called for it; that she has made payments on said furniture in accordance with her agreement, amounting to $134, but that the defendant now refuses to deliver said furniture to her.

Both plaintiffs pray for judgment decreeing them to be the owners of said furniture and ordering the defendant to deliver the same to them.

This suit waá filed November 16, 1921.

The defendant excepted that the claim was a community asset which could be asserted only by the husband. The husband was a party plaintiff and if he chose to pray for judgment in his' wife’s favor, it was no concern of the defendant. The judgment would be res judicata as to him. Shaw vs. Thompson, 3 Mart. (N. S.) 392; Peyroux vs. Davis, 17 La. 480; Johnson vs. Weld, 8 La. Ann. 126; Barton vs. Kavanaugh, 12 La. Ann. 333; Cade vs. Redditt, 15 La. Ann. 492; Lapice vs. Lapice, 21 La. Ann. 226; George Stewart vs. Jane C. Boyle, 23 La. Ann. 83; Holzab vs. New Orleans & Carrollton R. Co., 38 La. Ann. 188; Lewis vs. Holmes, 109 La. 1035, 34 So. 66; Schoppel vs. Daly, 112 La. 211, 36 So. 322; Malmore vs. Martinez, 144 La. 95, 80 So. 212. But see Mitchell vs. Dixie Ice Co., 157 La. 383, 102 South. 497.

If not, the wife’s joinder was surplusage. Holmes vs. Holmes, 9 La. 350; Barton vs. Kavanaugh, 12 La. Ann. 332.

For answer the defendant admitted the sale of the furniture as alleged in plaintiffs’ petition; he admitted that at the time of the sale the plaintiffs lived at 1623 Tulane Avenue over defendant’s store, and that the furniture Was actually in plaintiffs’ possession until August 1, 1921; but he denies that'the same was sold on the installment plan, but that it was sold to be paid for immediately and on the condition that the same would not be removed from 1623 Tulane Street; he denies that the same was stored with him until such time as plaintiffs should oall for the same, but on the contrary, the same was left with him under the condition of the sale that the same would not be removed from 1623 Tulane Avenue until the same was paid in full; he admitted that $134 had been paid, on account and admitted that he had refused to deliver the furniture as the condition of the sale was that the furniture was not to be removed until it was fully paid for. Defendant prayed that plaintiffs’ demand be rejected, and in reconvention asked for judgment against plaintiffs for $124.

On April 10, 1922, there was judgment in favor of the plaintiff wife decreeing her to be the sole owner of all the furniture claimed and ordering the defendant to deliver it to her; and dismissing defendant’s demand in reconvention.

The defendant has appealed.

The judgment is clearly wrong as to the mattress, the art- square, and the four window shades which plaintiff admits are in her and in her husband’s possession.

The price of the mattress does not appear, but the art square and the Windbw shades were sold for $10.50. Plaintiff has paid in all $134.00. These payments entitle her to

the kitchen safe..............................:______$ 22.50
the bed, spring and mattress..............j 75.00
and the art square and shades............ 10.50
$108.00
with a credit of...................................... 26.00 on the chifforobe.
$134.00

But Mrs. Perloff testifies as follows:

“Q. I notice’ on the book here one or two pieces ¡marked ‘Paid -in full’.
A. Yes,'.I • told her she.-could have these:. things that was paid for, sure: She is welcome to it.
Q. Did you tell her that she could have the things that were paid for, when she came there?
A. Yes.
Q. What did she say to that?
A. She wanted all.” '

This testimony is not contradicted.

The plaintiff testifies that it was understood that she could pay “as soon as possible”, p. 4, or “as she was able to pay”, p. 6.

The defendant’s wife says: “She was working for me during that time and said she would pay me every week as much as she could”.

She is corroborated by the receipt booklet given by her to the plaintiff, by which it appears- that the defendant made payments practically every seven days on the different articles purchased by her.

The booklet itself has the following inscription in the title page: “Goods sold for cash and on w'eekly and monthly payments”.

The plaintiff herself testifies as to the payments:

• “I never missed two weeks, I paid so much on one and so much on the' other.” P. 7.

The plaintiff was asked:

“Q. Was not the agreement that you were to leave the furniture in these premises until paid for?
A. No sir, no sir; there was no such agreement.”

On the other hand the defendant’s wife, who negotiated the first sale with the plaintiff, testifies, p. 9:

“Q. What was the understanding iij regard to the sale of this furniture?
A-. The understanding was she was to pay for that furniture before she moves it. She would move it when it was all paid fór. P. 9.
Q. You are positive that the agreement was that the goods should remain in -1633 Tulane- Avenue until paid for?
A: • .Sure.”

The defendant himself testifies, p. 13:

“I told her, as she had no credit standing and could not furnish any references, and as she lived in my premises, she should pay for it before she removed it, and it was perfectly all right to take her time in paying for it. The furniture was to remain on the place until paid for.”

W. B. Sweeney is “Meter man for the N. O. Railway and Light Co.”; at the time of. the sale to plaintiff he was renting from Mr. Perloff, and the plaintiff was renting from him; at the time of the trial he had moved away and was living at No. 520 S. Hennessey Street.

He testifies, p. 16:

“Mr. and Mrs. Perloff asked my wife if she would stand for the bill, and she said no.' Mrs. Doherty (plaintiff) was renting from us, and Mrs. Perloff was th.ere and said she would sell the furniture with the understanding that before it was moved out of the premises it was to be paid for. It was to be paid for before moving it from the premises.”

This witness did not hear the testimony' of the other witnesses as it appears that the witnesses were separated.

The plaintiff was working for the defendant at seven dollars a week, and boarded a gentleman at $10 a week; she was paying $20 a month rent; when her husband left her in August she could no longer pay the $20 and she had to move.

It was at that time that she stored her furniture with the defendant.

She was asked, p. 6:

“Q. Did you make any payments after that?
A. Yes sir.
Q. When?
A. Somewhere about the 1st of September.
Q. Whom did you see?
A. Mrs. Perloff.
Q. What did she say?
A. She told me I could not get it until it was all paid for.
Q. Did you ever attempt to make any payments after that time?
A. Yes sir.
Q. Did she refuse them after she told you that?
A. No, I went to pay her after that and she told me that she was not going to take any more payments on the furniture.”

This testimony is contradicted by the receipt book, which shows that several payments of small amounts were made by the plaintiff and accepted by the defendants in September, October and November.

It is also contradicted by Mrs. Perloff:

Q. “Is it not a fact that you refused to receive any more payments after the 15th of October, 1921?
A. No sir.
Q. Didn’t Mrs. Doherty go to your store and offer to pay you after she made a demand for the furniture?
A. No.”

The defense admitted owing the $124.00. The judgment o‘f the District Court in favor of plaintiff for the mattress, art square, and shades, and dismissing defendant’s demand in reconvention, is therefore clearly erroneous.

The judgment appealed from is therefore affirmed in so far as it decrees the plaintiff Annie Williams, wife of Drew Doherty, to be the sole owner of the kitchen safe, the bed and spring, the chifforobe, the ice box, and the Washstand and dresser claimed by her and that the defendant be condemned to deliver to her the kitchen safe and the bed and spring; but that in other respects it be reversed and annulled; and it is now ordered that the defendant be condemned to deliver as soon as each one is paid each of the chifforobe, the ice box, and the washstand and dresser to the plaintiff as soon as she shall pay to him the balance due upon each, say $34 upon the chifforobe, $15 upon the ice box, and $75 upon the washstand and dresser. The defendants to pay the costs of the District Court and the plaintiff to pay the costs of this court.


text:
    No. 8732.
    Orleans Appeal.
    SUCCESSION OF EUGENIE ARMANT.
    (December 1, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 625.
    Where an intestate estate is claimed by heirs of the brothers of the deceased as against heirs of an alleged maternal sister, and the sole question for determination involves issues of fact as to whether the deceased was an acknowledged illegitimate child of one or the other of two concubines of the deceased’s father, the judgment of the trial court will not be set aside unless clearly erroneous.
    2. Louisiana Digest, Appeal, Par. 626, 636.
    Where recognition by the father- and mother of their natural child is made in a notarial act prior to marriage, as well as in the marriage act, and where in the succession of both the father and mother, as well as in the nuncupative ' will of the mother, the parentage of the child is established by a preponderance of evidence, such proof will prevail' over testimony of witnesses, most of whom were born many years after ■ the child, and over letters of doubtful origin, all offered in rebuttal.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “B”, Hon. Fred D. King, Judge.
    This is an opposition to the account of the administratrix of a succession. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Paul A. Sompayrac, J. V. Chenet, attorneys for plaintiff and appellant.
    Chas. Louque, Baldwin & Haspel, attorneys for defendant and appellee.
   BELL, J.

The administratrix of the Succession of E,ugenie Armant has placed on her account, herself and others, whom she prays to have recognized, after payment of debts, as entitled equally to the residue of the succession, amounting to a balance of $963.55. The several parties named on the account are alleged to be respective heirs of two brothers of the deceased.

Other parties, claiming to be heirs through a maternal sister of the deceased, oppose the account on the ground that they only are the legal heirs of the deceased, and, as such, they are entitled to the whole of the estate. This opposition has its origin in the following facts:

Victor Armant, a white man, resided, before the Civil War, in the Parish of St. James. He is shown to have had two concubines, young family slaves on his father’s plantation. It is contended by opponents that the first of these women, Celeste Sylvestre, bore him a child, by name Eugenie Armant, in whose present succession this controversy has arisen.

Opponents further contend that they are descendants of a maternal sister of the deceased; that Eugenie Armant, who was about eighty years old at the time of her death, never married, and that ber half-sister, Augustine Sylvestre, issue of Celeste Sylvestre and Michel Sylvestre, both slaves and now deceased, was lawfully married to Fred Jenkins, and that the issue of said marriage, as the natural descendants of Eugenie Armant, are her only heirs, entitled to inherit to the exclusion of the heirs of Eugenie’s half-brothers, although the latter were legitimated by the marriage between Victor Armant and Caroline Montagnet.

The administratrix contends, on the other hand, that Eugenie Armant was the natural child of Victor Armant, by his second or other concubine, named Caroline Montagnet, and that Eugenie, with other issue, was legitimated by notarial act of these parties on August 20, 1873, before Alcee J. Ker, Notary Public, in the Parish of Orleans. This act of legitimation, while referred to in the index of this notary’s hound acts for the year 1873, appears to he missing from the volume itself, hut in a certified copy of the act of marriage between Victor Armant and Caroline Montagnet, shown to have been celebrated in New Orleans, on August 21, 1873, the notarial act of acknowledgment is referred to by the parties. Additional acknowledgment of Eugenie Armant as their child is also made in the act of marriage, to which the notary public, Alcee J. Ker, appears and signs as one of the two witnesses of the marriage. In further proof of the parentage of the deceased, the administratrix offers the succession proceedings of the natural father, that is, of Victor Armant, opened in the year 1886. The succession proceedings of the natural mother, Caroline Montagnet, are also offered, and this succession appears to have been opened in the year 1902. In both of these successions it is affirmatively established by competent witnesses that these deceased persons were, repectively, the father and mother of Eugenie Armant, and that her brothers, whose descendants now claim her succession, were also children of Victor and Caroline Armant.

Again, in further proof of Eugenie’s parentage, a certified copy of the nuncupative will of Caroline Montagnet, widow of Victor Armant, passed before Alcee J. Ker, notary, on August 22, 1873, is offered, and shows public declaration by the testator that Eugenie, then about forty years old, is her child by Victor Armant.

The only evidence offered by opponents to disprove the foregoing and abundant proof of Eugenie’s parentage is the verbal testimony of several witnesses, most of whom are shown to have been born, at the earliest, more than a generation after the deceased.

Letters written in the English language and purported to have been written by the deceased to one of the opponents, in which she appears to sign herself as his aunt, have also been offered in rebuttal. There is considerable testimony to the effect that the deceased could neither read nor write English and that the handwriting in • the letters was not that of Eugenie Armant. The Judge who heard and saw the witnesses and who examined these letters was evidently of that opinion. Opponents’ evidence has no probative value equal to that found in the documents offered by the administratrix. It should be noted that the deceased, from the early age of eight years, appears to have lived with Victor and Caroline Armant in the City of New Orleans, and until her death some seventy-two years later, she was always known as their child.

We are impelled by what we believe to be a preponderance of evidence of the highest probative value to conclude that Eugenie Armant, the deceased, was the natural legitimated child of Victor and Caroline Armant, and that, therefore, the heirs of her legitimated brothers are entitled to inherit her estate to the exclusion of opponents.

The sole issue in this case is resolved into one of fact, and in the absence of apparent error, we will not disturb the conclusions of the trial judge. The provisions of the Civil Code and the authorities cited by counsel for opponents could only have application to the instant case were our conclusions as to the facts in consonance with those contended for by opponents. Agreeing as we do with the findings of the trial judge, it is unnecessary to express our conclusions- of the law cited by opponents’ counsel and found in the two briefs which have been submitted by him.

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


text:
    NO. 8736.
    Orleans Appeal.
    MRS. STELLA BOUTIN, Wife of Eugene Buck, Appellant, v. MRS. BELLE BRADLEY, Widow of Andrew Latimer.
    (December 1, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused with Reasons.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Damages—Par. 104.
    iWhere plaintiff’s injury consists of bruises to her hip, which, though painful, are not serious, an award of One Hundred and Fifty ($150.00) Dollars will be deemed sufficient.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from Civil District Court for the Parish of Orleans, Division “E”, Hon. Wynne G. Rogers, Judge.
    This is a suit for personal injuries. Judgment for defendant. Plaintiff appealed.
    Judgment reversed.
    Jos. J. Ritayik, attorney for plaintiff and appellant.
    Chas. Louque, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit impersonal injuries in the sum of Five Thousand and Thirty-nine ($5,039.00) Dollars. Plaintiff alleges she fell through a defective floor of the premises belonging to defendant and rented by her. The defendant, landlord, denies that the floor was defective and that plaintiff was injured as she alleges. The District Court gave judgment for defendant -and plaintiff appealed to the Supreme Court. That court remanded the case to us upon the ground that the claim, if any, plaintiff could properly assert, was grossly exaggerated; saying in its opinion (Buck vs. Latimer, 151 La. 886; 92 So. 372): “We cannot conceive how plaintiff could possibly' expect ' to recover an amount even approximating the lower limit of this court’s jurisdiction ($2,000); and hence, we conclude that plaintiff has exaggerated her claim for the purpose of giving this court jurisdiction.”

We have examined the record with care in order to satisfy ourselves upon the issues of fact, there being no controverted questions of law involved.

We conclude that plaintiff was injured under circumstances involving the liability of' defendant. The question of the extent of her injuries is not clear to us, however, we agree with our brethren of the Supreme Court that they were not extensive. Plaintiff’s hip was bruised and several calls were made by her doctor, who instructed her to remain in bed four or five days, but she was in an advanced stage of pregnancy and the doctor states that he was influenced by that fact as. well as her injuries in ordering her to bed. No injury is claimed, or shown to have resulted to the child, who experienced a normal birth, though the fact of pregnancy is advanced in support of plaintiff’s claim for mental anguish.

Under the circumstances, we think • an award of One Hundred and Fifty ($150.00) Dollars would be proper.

It is, therefore, ordered that the judgment appealed from be reversed, and it is now ordered that there be judgment in plaintiff’s favor and against defendant in the sum of One Hundred and Fifty ($150.00) Dollars, defendant to pay. costs of the Civil District Court and of this court.


text:
    No. 8749.
    Orleans Appeal.
    LOUISIANA BOX COMPANY v. FAIRBANKS, MORSE & CO., Appellant.
    (December 1, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)
    (February 6, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 249; Pre scription, Par. 95.
    The action quanti minoris is barred by the prescription of one year, which, when the - vendor has knowledge of the defects of the thing sold, begins to run from the date of the discovery of the vice by the vendee.
    (Civil Code, Arts. 2545 and 2546 — Editor’s Note.)
    Appeal from Civil District Court for the Parish of Orleans, Division “E”, Hon. Wynne G. Rogers, Judge.
    This is an action quanti minoris coupled with a demand for expenses and for damages. Judgment for plaintiff. Defendant appealed.
    Judgment reversed.
    Gonzelman, Larkin & Gaudet, attorneys for plaintiff and appellee.
    Monroe & Lemann, W. J. Suthon, Jr., attorneys for defendant and appellant.
   WESTERFIELD, J.

This is an action quanti minoris coupled with a demand for expenses and for damages which the plaintiff brings as the buyer against the defendant as the seller of a “100 H. P. Fairbanks-Morse Type ‘B’ Heavy Duty Four Cycle Rebuilt Marine Engine”. The plaintiff alleges, the defendant feebly denies, and we find as a fact that the engine was grossly defective and that defendant as the seller had knowledge of the vice and failed to declare the same to the buyer.

The defendant pleads the prescription of one year under Art. 2546 R. C. C. The following articles of the Civil Code are pertinent:

C. C. 2520:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absosolutely useless,. or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, - had he known of the vice.”

C. C. 2534:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the' sale.”

C. C. 2541:

“Whether the defect in the thing sold be such as to render it useless and altogether unsuitable to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

C. C. 2542:

“The buyer may also - content himself with resorting to this action, when the duality, which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition.”

C. C. 2544:

“The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

.C. C. 2545:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the- price and repayment of the expenses, is answerable to the buyer in damages.”

C. C. 2546:

“In this case, the action for redhibition may be commenced at any time, provided a year- has not elapsed since the discovery of the vice.
“This discovery is not to be presumed; it must be proved by the seller.”

The evidence clearly shows and counsel does not dispute the fact that more than a year elapsed between the discovery of the vice and the bringing of this suit, but counsel insists that Art. 2546 has no application to any situation other than as described in the preceding Article 2545, where a claim is made for redhibition and for damages and no prescription is established by the articles we have quoted where the seller knows of the vice and no claim is made for. damages. Counsel’s contention is unfavorably affected by the fact that he has coupled a claim for damages and expenses with his action quanti minoris and appears to have drawn his petition with Article 2545 before him upon which his suit seems to be squarely based. However, the trial court in awarding judgment to plaintiff, refused to recognize his claim for damages and counsel has acquiesced in the judgment, consequently, we will consider his contention for what it is worth.

The buyer of a defective article has two remedies. He may return the thing and claim the purchase price and expenses occasioned, by the sale or preservation of the thing bought, the redhibitory action, or he may retain the thing and sue for a diminution of the price, the action quanti minoris. The latter action will lie even when the thing bought has been disposed of. In George vs. Shreveport Cotton Oil Co., 114 La. 503, 38 South. 432, the Supreme Supreme Court, in considering a case on review from this court, said:

“This court has several times held that a return of the thing sold is indispensable to support a redhibitory action, and that a vendee who, by selling, has disabled himself from returning the thing, cannot recover in such an action; accompanying, however, that declaration by the statement that that fact would not bar an action for a diminution of the price. While the plaintiff in this case, by reason of having disposed of the oil cake which he purchased, could no longer bring an action for the rescission or resolution of the sale, he was not cut off by that fact from bringing the action known in France as the ‘action estimatoire’, in this State as an action ‘for the reduction or diminution of the price’, and generally as the action ‘quanti minoris’. Merlin’s Repertoire de Jurisprudence, verbo ‘Redhibitoire’.”

The prescription applicable to the action in redhibition and the action quanti minoris is one year. In the case just cited by us the Supreme Court observes:

“Paraphrasing what Laurent says, speaking of an action ‘Recursoire’ (Volume 24, p. 303), the demand, being born of the action in warranty for the vices of the thing sold,' proceeding from the same cause, and subjected for its justification to the same rules, is necessarily controlled by the same conditions in its exercise, and cannot claim a greater limit for its duration than it does.”

The reason for the short prescription is “the necessity and propriety of determining with promptness and certainty whether the articles sold had or did not have the vices which they were charged to have had”. Supra p. 506.

The prescription of both actions begins to run from the date of the sale, except where the seller had knowledge of the defects and then only from the date of the discovery of the defects by the purchaser.

“Articles 2534, 2544 and 2554 limit the time within which a redhibitory action or one for reduction of price has to be brought to one year, at the furthest, commencing •from the date of the sale; but this limitation does not apply where' the seller had knowledge of the vice, and neglected to declare it to the purchaser. In the latter case the action may be commenced at any time, providing a year has not elapsed since the discovery of the vice. The discovery is not presumed. It must be proved by the seller.” (Supra.)

Defendant confidently relies upon the case of Templeton Bros. vs. Fairbanks, Morse & Co., 129 La. 983, 57 South. 309. To quote from counsel’s brief: “The case * * * is almost identical with the facts . of this case. In that case the plaintiff signed the contract of sale on October 4, 1906, said con tract carrying with it a guarantee that th'e engine would produce certain ‘horsepower’. Delivery and installation of the engine was made in the month of April, 1907, and suit for the reduction of the price was filed on the 31st day of August, 1908.”

In our opinion, the Templeton case has no application whatever. It is true that the prescription of one year filed by the defendant in that case was overruled on the ground that the defendant must be held to have known of the latent vices of the thing it sold. But it was overruled because it was sought to have it run from the date of the sale and the law does not establish such prescription in favor of a vendor who knows of the defects of the thing sold. There is nothing in the Templeton case to show when the buyer had knowledge of the vice of the thing bought. Indeed, it seems that the engine sold in that case was accepted and no complaint made of any defect until just before the filing of the suit. To quote from the opinion:

“In their letter of April 28, 1908, copied at page 993, of this opinion, while they spoke of their having ‘been having considerable trouble with our plant owing to the fact that we have been unable to get a uniform grade of coal’, they said not a word about the engine operating imperfectly. On the contrary, they spoke of having had one carload of coal that was satisfactory, and of their running at the date of the letter with gasoline. Their only complaint was that the gasoline was too expensive, and they inquired if defendant could not give them information how to run the engine with Texas oil or Texas lignite. And, finally, in their letter of May 12, 1908, copied at page 994 of this opinion, they said, ‘We have only been able to get one lot of coal on which we could run the plant satisfactorily’, which was tantamount to an express declaration that with this lot of coal they had run the plant satisfactorily. Prom all this we say it is impossible to avoid the conclusion that plaintiff’s present dissatisfaction with the engine has grown out of the fact that the engine has now by misuse become much impaired, so that it can no longer come even near fulfilling the guaranty of the contract.”

In the instant case there is no dispute that more than one year has elapsed since the discovery of the vice of the thing sold, consequently, a totally different situation than the Templeton case. We conclude, not without some reluctance, that the plea of prescription must be maintained.

It is, therefore, ordered that the judgment appealed from be reversed and it is now ordered that there be judgment in defendant’s favor maintaining the plea of prescription filed herein and dismissing plaintiff’s suit, plaintiff to pay all costs.


text:
    No. 8763.
    Orleans Appeal.
    WIDOW GASPARE LO CICERO v. SOCIETA ITALIANA DI M. B. CHRISTOFORO COLOMBO.
    (December 1, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Associations, Par. 21.
    Where the by-laws of a mutual benefit society provide that a re-admitted member shall not enjoy the benefits granted by the- society until three months after his re-admission, death of such a member within such time bars recovery by his widow of insurance benefits.
    2. Louisiana Digest, Damages, Par. 81, 84.
    Damages to be recovered must be proven.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from the Civil District Court for the Parish of Orleans, Div. “B”, Hon. Fred D. King, Judge.
    This is a suit to collect a death benefit and additional damages.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.

      Theo Cotonio, attorney for plaintiff and’ appellee.
    Loys Chárbónnet, Raymond Gauche, attorneys for deféndant and appellant.
   BELL, J.

This is a suit by a widow to collect a death; benefit of $275.00 and . a' funeral benefit of $50.00 from the defendant society. The widow asks for $2,000.00 additional damages, claiming that 'the society, through malice and ill-will towards her, and for the purpose of insulting her, prevented its funeral committee from participating in the funeral of her husband, who was a member of the society.

The defense to this suit is that plaintiff’s husband was not a member in good standing at the time of Ms death, and further, that the by-laws of the society, made part of the petition, particularly Article XXYI, Sec. 14, bars recovery because of the stipulations found therein, as follows:

“Article XXVI, Sec. 14: A member newly admitted shall not enjoy the benefits granted by the society * * * until three months after his admission; this ruling refers also to the readmitted member.”

We find the facts in this case, as disclosed by the record, to be as follows:

Gaspare Lo Cicero, while a member of the Societa Italiana Di M. B. Christoforo Colombo, died suddenly on July 25, 1916. He originally joined the defendant society on February'2, 1909, and remained a member thereof until 1910, when he ceased to be a member, and was at that time in arrears for dues amounting to $7.25. He rejoined the society on March 5, 1912, and from that date paid all accruing dues up to November, 1913. After this latter date he ceased to Tay further dues. His name was carried on the books of the society until August, 1914, when it was omitted from the ledger and no further postings or charges for dues were thereafter entered against him. On April 26, 1916, he made verbal application for readmission into the society and also filed a written form of application, which Was filled out, at his request, by one of the society’s members. This written form contains, among other printed matter, a statement that the applicant desires to be admitted as an active member and obligates himself to conform to the constitution and all rules of the society in force from the time his application ib accepted. At the bottom of the application it states that an admission fee of $1.00 will be charged, and the evidence shows that same was paid by LoCicero.

It further appears that LoCicero was required to submit himself to physical examination and that he was in fact examined by the society’s doctor, who approved his application, and who notified the society to that effect. A fee of $1.50 was charged for this examination but never paid by Lo-Cicero. The minutes of the society show that he, with many other applicants, was admitted to membership on May 2, 1916, at a regular meeting of the society, and that he immediately paid the sum of $2.00. This amount represented the admission fee of $1.00 and dues of $1.00 for the month of May, 1916. For more than two and one-half months prior to his death, which occurred on July 25, 1916, he appears to have been in arrears for at least the examination fee of $1.50, and the record shows that he failed also to pay monthly dues of $1.00 for June and July of that year. The receipt given him for his dues accruing on the 1st of May contains thereon the following stipulation:

“Any member indebted to the society for two months and fifteen days contributions, will be considered suspended and deprived, therefore, of all benefits and privileges granted by the society by virtue of its bylaws. * * * ”

The crucial point for determination is Whether LoCicero ceased to become a member of the defendant society by virtue of his delinquency in payment of dues accruing alter November, 1913. We think that he did cease' to become a member, at least in August, 1914, when his name was stricken from the ledger and other books of the society. His continued delinquency from November, 1913, and the action of the society in striking his name,from the ledger, clearly indicate that both LoCicero and the society well understood that the former’s membership had been cancelled.

The Judge of the trial court, in his reasons for judgment in favor of claimant, seems to have concluded that LoCicero’s membership in the society never terminated because there was no formal resolution of the society expelling him for non-payment of dues. While there is nothing in the record indicating any such affirmative action on the part of the society, we do not consider, in the instant case, that such affirmation was necessary in order that LoCicero’s membership in the society should cease. The fact that he was in arrears well over two months and fifteen days in the “contributions” or dues which he should have made to the society, when his name was dropped from the books of the society in August, 1914, made it wholly unnecessary that the society should formally expel or drop him from membership by affirmative resolution to that effect. (See innumerable authorities cited in the foot-note to the case of Knights of Columbus v. Burroughs, 17 L. R. A., New Series, page 246 et seq.) But even if- we were in accord with our learned' brother of the District Court on this point, there is abundant proof in the record that LoCicero considered himself, in April, 1916, to be entirely without membership- and without any benefits of membership in the defendant society. All of his acts and those of the society leading up to his readmission to membership on May 2, 1916,'. show conclusively that he could not have been a member, even under suspension, between August, 1914, and May 2, 1916.

The trial judge found LoCicero’s status on May 2, 1916, to be' exactly what we find it to have been. In the judge’s opinion he states “He (LoCicero) rejoined or was readmitted in the society on the 2nd day of May, 1916”. There is nothing in the record to show that LoCicero’s dues, from the first date of his membership, to-wit, February 1, 1910, up to the date of his readmission, to-wit, May 2, 1916, were ever remitted by any formal resolution of the society. If they were never remitted, then he forfeited all rights or benefits after two months and fifteen days had elapsed in respect to any dues for which he may have been in arrears. It is fair to assume, however, that readmission to membership on May 2, 1916, without requirement by the society that he should settle for back dues of long standing, would have estopped the society in any plea of forfeiture for the delinquency. But this is not the real point of contention. Having been readmitted to membership, LoCicero was subject to the provisions of Article XXVI, Sec. 14, of the by-laws, and having died within three months after his readmission, there can be no enjoyment of benefit^ such as are now claimed by the widow. There is no proof in the record supporting the damages which have been claimed, hence none can be allowed.

It is, therefore, ordered, adjudged and decreed that the judgment herein appealed from be reversed and set aside; it is now-ordered and decreed that there be judgment in favor of defendant, Societa Italiana Di M. B. Christoforo Colombo, and against Widow Gaspare LoCicero, plaintiff, dismissing plaintiff’s claim at her costs in both courts.


text:
    No. 8766.
    Orleans Appeal.
    WILMERDING, MORRIS & MITCHELL v. M. SHERMAN, Appellant.
    (December 1, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 144, 145, 149.
    A suit for the contract price of merchandise, not an action in damages for the difference between said price and the market price, is the proper procedure, where a preponderance of evidence establishes the sale and where the vendee admits delivery and possession of the goods.
    2. Louisiana Digest, Appeal, Par. 625.
    Only issues of fact being involved, the judgment of the trial court will be affirmed.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “D”, Hon. Porter Parker, Judge.
    The only question for determination in this suit is whether the defendant, sued for the price of certain goods alleged to have been sold to him, did, in fact, actually buy the goods described in the petition.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Denegre, Leovy & ■ Chaffee & McCall, attorneys for plaintiff and appellee.
    Sol WeisS, attorney for defendant and appellant.
   BELL, J.

The only question for determination in this suit is whether the defendant sued for the price of certain goods alleged to have been sold to him, did, in fact, actually buy the goods described in the petition.

The trial court found for the plaintiff and the defendant has appealed.

The plaintiffs, who are shown to have been auctioneers, conducting business in .the City of New York, filed this suit for recovery of the price of .goods and merchandise sold by them at public auction to the defendant, on September 1, 1920.. The amount claimed is the sum of $1,522.92, for which judgment has been obtained.

All of the plaintiff’s testimony has been taken by depositions, and the record shows a preponderance of evidence to the effect that the sale was made as alleged in the petition. Four witnesses for the plaintiff, who are, respectively, — a member of the firm, the auctioneer who conducted the sale, the recording clerk, who at the moment of sale made entries thereof in the auctioneer’s sale book, and the claim adjuster or credit man of the plaintiff’s company, who made additional records of the sale by checking the names of the buyers, recording the prices and performing other duties incident to the completion of a record of sale, — all testify with certainty and in corroboration of each other’s testimony, that the defendant not only bought certain samples of goods displayed on. the counters for purposes of sale, but all other goods in relation to said samples which were, at the moment, in plaintiff’s warehouse.

It is shown that the defendant had for years dealt with this firm, and on the occasion of previous sales, had recognized the method of shipment and delivery which had always been observed between the parties. This method was for the plaintiff to deliver, for account of purchaser, all of the goods purchased by him to a certain packer, who would give to the plaintiff firm, an itemized receipt for the goods delivered. This packer would at once or within a reasonable time, ship in his name — not in the name of the plaintiff firm — all goods purchased by the defendant. In the present instance, this custom, which had always been approved by the defendant, was strictly observed and the goods Were shipped by steamer to New Orleans.

The only defense to this suit is, that plaintiff did not buy all of the goods shipped to him, and that upon receipt of the invoice, which came to his hands some ten days or two weeks after returning from New York City, he at once advised plaintiff of his intention to reject the shipment because it was in excess of what hé had purchased. Defendant' claims that the sample pieces of each lot were sold separately from duplicate pieces, that is, pieces known as “dupes”, and which were contained in defendant’s warehouse; that he purchased only sample pieces, not duplicate pieces, as claimed by the plaintiff. The original catalogue of the auction sale is in the record and identified by the witness who recorded the sales, and shows conclusively that not only the samples but the duplicate pieces, were bought by the defendant.

Defendant admits that he attended the sale in question; that he had done business with the plaintiff company since 1915; that Fred Stetter had acted for him in receiving and packing his merchandise for some five or six years previously; that he purchased at the auction in question, part of the merchandise, the price of which is now sued for; and he finally admits in his pleadings and testimony, that he has not paid for any of the merchandise, including even that Which he admits he bought, and that all of this merchandise is now in his possession, and has been, since the institution and trial of this cause.

Considering the facts as just notea, we are of the opinion that no error regarding the facts has been made by the trial court.

It is contended, however, by counsel for defendant, that in any event the suit is not properly brought for the price or by way of enforcing specific performance, but that plaintiff should have received the goods rejected by the defendant, should have given him shipping orders for the return of same and should only have sued for damages, if any, resulting from the difference between the contract price and the price of the goods subsequently sold, privately or at auction. Numerous authorities are cited in support of defendant’s contention, but this law, which is sound under circumstances solely different from the instant cause, is not here applicable, for the reason it is conclusively shown that the contract of sale is not executory, but has been fully completed by delivery and possession.

In the case of Farmers Rice Co. vs. Koerner, No. 8568 of the docket of this court, and in the case of Davis & Co. vs. Sherman, No. 8635 of the docket of this court, the distinction is clearly pointed out between cases where the sale is inchoate for want of delivery and where delivery has been consummated. In the latter instance, the vendor has a right to sue for the price.

There is in this case no question of failure to accept delivery, although defendant, without justification, saw fit to notify plaintiff before the arrival of the goods that he would not receive them. He did receive them, however, and the execution of the sale was completed.

For these reasons, we find no error in the judgment of the trial court and are- of the opinion that the same should be affirmed.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed,. at defendant’s costs in both courts.


text:
    No. 8759.
    Orleans Appeal.
    C. H. MILLER, Appellant, v. MORGAN’S LA. & T. R. R. AND S. S. CO., ET AL.
    (December 2, 1924, Opinion and Decree.)

      (Syllabus by the Gourt.)

    1. Louisiana Digest, Appeal, Par. 758.
    The reasons for judgment form no part of the judgment itself; the thing adjudged must be found in the decree.
    2. Louisiana Digest, Master and Servant, Par. 156.
    The Employer’s Liability Act of 1914 as amended by Act 244 of 1920 does not apply to any employer acting as a common carrier, while engaged wholly or in part. in interstate commerce hy railroad.
    (Sec. 30, Par. 1, Employers’ Liability Act, No. 20 of 1914, Amended by 244 of 1920 —Editor’s Note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a suit under the Employer’s Liability Act. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Vidrine & Kinsella, attorneys for plaintiff and appellant.
    Denegre, Leovy & Chaffe, Harry McCall, attorneys for defendant and .appellee.
   CLAIBORNE, J.

This is a suit under the Employer’s Liability Act.

Plaintiff alleged that on November 15, 1920, he was working for the Morgan Railroad as brakeman on a train known as the West Local Freight operated between Lafayette and Lake Charles, both in Louisiana; that in the course of his employment he alighted from a car of the train and in so doing put his foot upon a pile of rocks and slipped and sustained a severe contusion of the knee and a permanent injury which entitles him to $18 a week for 300 weeks, subject to a credit of $65 paid to him by the defendant.

By a supplemental petition plaintiff made the Louisiana Western Railroad Company a party defendant.

The Morgan Railroad denied all the allegations of plaintiff’s petition.

The Louisiana Western Railroad Company answered that the plaintiff was employed by it and- not by the Morgan Company and averred: “But it is not true, as this article would imply, that the train on which the said Miller was so employed at the time of the injury was, a local train in the sense of being engaged in ‘intrastate’ commerce only.”

The said train was actually engaged as a common carrier in “interstate and foreign commerce”, and plaintiff, working on the said train, was actually engaged in “interstate and foreign commerce”, for many of the cars making part of said train, and the freight in the said cars, were in the course of “interstate and foreign transportation”; that by Section 30 of Act No. 20 of 1914 as amended by Act 244, p. 60, of 1920; p. 464, it is provided “that this Act shall not be' construed to apply to any employer acting as a common carrier while engaged in interstate or foreign commerce by railroad, provided .that the employee of such common carrier was injured or killed while so employed and c”; that therefore plaintiff’s action does not lie under said act; that his rights are fixed by Act of Congress of April 22, 1908, Ch. 149, 85 Statutes at Large, p. 65.

The Louisian Western Railroad Co. subsequently filed an- exception of no cause of action.

There was judgment in favor of defendant, “Morgan’s Louisiana and Texas Railroad and Steamship Co.”, and against plaintiff, Clarence Hugh Miller, rejecting the said plaintiff’s demand, at his cost.

In his reasons for judgment the judge overrules the exception of no ‘ cause of action and says:

“As to the merit of the ease against both defendants it is clear that the train upon which the plaintiff was employed at the time of the injury was engaged in interstate commerce, it being shown that the cars contained freight destined for other States and foreign countries. Plaintiff’s remedy is under the Federal Employer’s Liability Act. Plaintiff’s suit is dismissed at his cost.”

The plaintiff appealed from the judgment rendered May 16, 1922, and. signed May 26, 1922, “in favor of the defendant”.

The reasons for judgment or the. opinion are not the judgment, although those reasons may bear the judge’s signature.

“The reasons for judgment form no part of the judgment itself, though they may be consulted to explain an ambiguity. The thing adjudged will be found, not in the opinion pronounced, but the decree rendered.” Keane vs. Fisher, 10 La. Ann. 261; Davis vs. Wilcoxon, 10 La. Ann. 640; West Feliciana R. Co. vs. Thornton, 12 La. Ann. 736; John Chaffe & Bro. vs. Morgan, 30 La. Ann. 1307; Police Jury of Lafourche vs. Police Jury of Terrebonne, 48 La. Ann. 1299, 20 So. 708; John Davidson vs. Carroll, Hoy & Co., 23 La. Ann. 108; State vs. Rightor, 38 La. Ann. 559; Plicgue & Lebeau vs. Perret, 19 La. 324; Fuselier vs. Babineau, 14 La. Ann. 767; Poydras vs. Taylor, 18 La. 14.

The only judgment rendered in the ease and the only one appealed from is that rendered 'May 16 and signed May 26, 1922. The other defendant, the Louisiana Western Railroad Company, is not mentioned in that judgment and therefore, as there is no judgment for or against it, the appeal from the judgment does not bring it before us.

Considering therefore the only judgment before us, the one in favor of the Morgan Railroad and against the plaintiff, it is undoubtedly correct.

The evidence is that the plaintiff was not employed by the Morgan Railroad but by the Louisiana Western Railroad, and was injured on the latter road. In his petition he alleges that he was working “as head brakeman on a train known as the West Local Freight operated from Lafayette, Louisiana, to Lake Charles, Louisiana.” He testifies, p. 6:

Q. Now, this train operates exclusively within two points within the State?
A. Yes, between Lafayette and Lake Charles.
Q. By what railroad?
A. Louisiana Western.
Q. It operates between * * *
A. Between Lafayette, Louisiana, and Lake Charles, Louisiana.

That is as far as that train goes.

Q. Is that a branch of the Morgan’s Louisiana and Texas Railroad and Steamship Co.?
A. No sir, that is the main line.
Q. That really then is the Louisiana Western Railroad?
A. Louisiana Western Railroad Co.; the Division is called the Louisiana Western.
Q. There is no doubt of course that the road on which you were injured was the Louisiana Western Railroad?
A. Yes, that’s it, Louisiana Western Division, it is known by.
Q. It is the Louisiana Western Railroad Co., isn’t it?
A. Yes, sir.

Filed in the transcript is a receipt in these words:

“Received of Louisiana Western Railroad Company Sixty-five Dollars in full settlement and complete satisfaction of all claims and causes of action against it and, etc.”

Also a check in these words:

“No 11449, Louisiana Western R. R. Co.
Lafayette, La., 12-11-20.
At sight pay to the order of C. H. Miller, Sixty-five Dollars for personal injuries received at or near Rayne, La., November 15, 1920, while employed as brakeman on Local Freight getting off engine to the switch.
(Signed) St. D. J. DeBlanc,
Treasurer L. W. R. R. Co.
J. W. Ethridge, Claim Agent.”

The plaintiff admitted having signed the receipt and endorsed and collected the check.

In addition to this evidence it appears by the testimony of witnesses and by waybills that the cars from which plaintiff was injured were at the time of his injury actually engaged in interstate’ commerce with freight from Jeanerette and other Louisiana towns to Houston, Galveston, Lufkin, and Fort Worth, Texas, bringing plaintiff’s case squarely within Act 244 of 1920. Salvaggio vs. Illinois Cent. R. Co., 151 La. 66, 91 So. 549; Thaxton vs. Louisiana Ry. & Nav. Co., 153 La. 292, 95 So. 773; Bergeron vs. Texas & P. Ry. Co., 144 La. 225, 80 So. 262; No. 9123 Ct. App.; Roberts on Federal Liabilties of Carriers, Sec. 455, p. 782; 229 U. S. 146; 253 U. S. 284; 238 U. S. 260; 256 U. S. 332.


text:
    No. 8746.
    Orleans Appeal.
    RED WING MILLING CO., Appellant, v. B. C. FRANCINGUES.
    (December 2, 1924, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Mandate, Par. 73, 74, 78.
    An unauthorized agent has no right to modify a contract signed by his’ principal, especially when 'the contract itself denies such authority.
    (Civil Code, Art. 2996 — Editor’s Note.)
    2. Louisiana Digest, Sales, Par. 58; Action, Par. 10.
    When an obligation is to be performed within a specified time, and the time expires without a performance, default is not necessary.
    (Civil Code, Art. 1911 and 2057 — Editor’s Note.)
    3. Louisiana Digest, Sales, Par. 58.
    In a contract for the sale and delivery of goods on specified future dates, the rule is that time is of the essence of the contract and that the purchaser will not be bound to accept and pay for the goods if they are not delivered on the dates specified in the contract.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for damages for refusal of the defendant to accept delivery of flour sold to him by plaintiff. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Richard B. Montgomery, attorney for plaintiff and appellant.
    Emile Pomes, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a suit for damages for refusal of the defendant to accept delivery of flour sold to him by plaintiff.

Plaintiff, millers in Minnesota, allege that on August 24, 1920, as per order of same' date, they sold to the defendant, Francingues, 310 barrels of flour at $12.25 per barrel; to be shipped in ninety days, subject to confirmation by wire; that said order was confirmed by letter of their salesman dated August 24th; that said order was again confirmed by the plaintiffs on August 25, 1920; that on November 1, 1920, the defendant requested that the shipment be deferred later than 90 days; that on the 17th of November the plaintiffs notified the defendant that they must move the car as it was booked for shipment in ninety days; that the defendant answered that he would give instructions on -the 18th; that on November 19th the plaintiff received a letter dated November 15th, but postmarked the 18th, in which defendant refused to accept delivery of the car stating that the plaintiff sold the car for immediate shipment, and as they had failed to make delivery he cancelled the order; that the defendant again on November 30th notified the plaintiffs to the same effect; that the defendant, until November 10th, made no complaint nor raised any question in regard to the order or confirmation.

The defendant denied the allegations of plaintiffs’ petition and averred that his orders were subject to confirmation by the plaintiff, and that subsequently a contract was entered into between plaintiff and defendant, made part of his answer; that the plaintiffs had failed to make the shipment immediately according to their contract and that he was no longer bound in November to receive any shipment; that his contract was for a “shipment to be immediate, and the shipment period to be within thirty-days from date”, and that the terms of the Article 7 of the contract read: “The failure of the seller to make any shipment or delivery within the time indicated by this contract, then the buyer may, at his option cancel the shipment or delivery”.

There was judgment for defendant and the plaintiff has appealed.

The facts are that on August 24th the defendant offered the agents of plaintiff to buy 310 barrels of flour at $12.25 per bar-rel at 90 days delivery “subject to confirmation by wire”.

The agents in New Orleans on same day wired the plaintiffs:

“Francingues offers $12.35 a barrel, 310 barrels, 98- lbs., 90 days’ shipment, try hard to confirm sale.”

The agents had no right to confirm sale without authority from plaintiffs.

On same day the plaintiffs wired back: “Confirm Francingues 310 lbs. $12.25. Must have $12.75. Future’ market strong.”

The agents then confirmed the offer by letter dated same day reading as follows:

“B. C. Francingues.
Dear Sir:
We beg to confirm sale to you this day of 310 lbs. at $12.25, shipment within 90 days, for acount of Redwing Milling Co.”

The plaintiffs then sent Francingues the following document in duplicate:

Contract No. 1-45. Date 8-24-20.
B. C. Francingues:
Following articles on the terms and conditions stated below:
Terms of shipment: Immediate shipment periods to be within 30 days from date.
310 barrels, $12.25.
(1) (2) (3) “Contract not subject to change: It is understood that there are no conditions, representations, or warranties, verbal or otherwise, and that there shall be no assignment or cancellation of this contract, except as herein stated, and no agent or representative has authority to modify the printed terms of this contract.”
(4) “Shipment within thirty days. It is understood and agreed that the above order shall be. shipped or delivered as specified within thirty calendar days, dating from time when the order is taken.”
(5) “Non-extension of time. There shall be no extension of the time of shipment or delivery under this . contract except as herein specified.”
(7) “Seller’s non-fulfillment of contract: If the seller shall fail (except for the reasons herein specified) to make any shipment or delivery as specified within the time indicated by this contract, then the buyer may, at his option, cancel the shipment or delivery, and in event of such default the seller shall upon demand pay to the buyer the sum of 25 cents per barrel on flour, and 50 cents per ton on feed, and the buyer may pursue such other remedies as the law provides.”

This contract is signed by' H. D. Reitman, sales agent for plaintiffs, and by Francingues. One copy was retained by him and the other was mailed to plaintiffs.

The assistant manager of the plaintiffs testified: “When we make a sale, we immediately confirm it by written confirmation. In this case, our confirmation read:' ‘Immediate shipment’, but should have stated ‘90 days’. This was an' error made by my assistant, H. D. Reitman.”

The plaintiffs endeavored to sho.w that the defendant had called the attention of the plaintiffs’ agents to the error in the contract relating to the terms of delivery “immediate” instead of “ninety days”. The defendant objected to any evidence on that line as contrary .to law and to the terms of the contract. The court reserved its ruling. The result was that Mr. Ferry, one of plaintiff’s agents, testified that the defendant telephoned to him that he had not bought that flour for immediate shipment; and that he had answered that he had bought it for 90 days’ shipment, and that he showed him a telegram to that effect.

There is no evidence that the plaintiffs themselves ever informed the defendant that the “immediate delivery” clause was an error, and the defendant testifies that he received no wire from the mill. The plaintiffs make no allegation of error in their petition and claim it only on the trial to meet the defendant’s answer.

Without passing upon the admissibility of the evidence under the law or the contract as to correspondence or conversations between the agents and the buyer, it is evident that under the terms of the contract the agents had no authority by writing or by parole to vary the contract between plaintiffs and the defendant. If the defendant stood before the court claiming a variation of the contract by the agents, it is evident that he would have been required to show the authority of the agents to alter the contract, and that he would have been referred to the contract itself which provided in unmistakable terms that “no agent or representative has authority to modify the printed terms of this contract”. C. C. 2474.

It follows that no writing or parole from •the agents was binding on the plaintiffs any more than upon the defendant.

Our views are in accord with the reasons of the District Judge and we endorse them. The case in National Wholesale Grocery Co. vs. Simon Rice Milling Co., 152 La. 1, 92 So. 713, is not in point.

The plaintiff shipped the flour only on November 22nd, and it. arrived in New Orleans only on December 13th.

It was then too late. Prior to those dates defendant had written to the plaintiffs, that he cancelled the order.

• In the case of Brecht Co. vs. Manale, No. 9693, we said:

“The presumption is that a sale of goods is made for immediate delivery or within a reasonable time after the sale.”

And in Shelby Mills vs. Nami, No. 8706, we said:

“When an obligation is to be performed within a specified time, and the time expires without performance, default is not necessary.”
“In a contract for the sale and delivery of goods on specified future dates, the rule is that time is of the essence of the contract, and that the purchaser will not be bound to accept and pay for the goods if they are not delivered on the dates specified in the contract.” Monumental Brewing Co. vs. Southern Rice Milling Co., 155 La. 454, 99 So. 401.