text:
    No. 2340
    Second Circuit
    A. B. SMITH v. POLLOCK COMPANY
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 7, 11, 12, 18, 21.
    One who is hired but does not enter into services of his employer because his employer does not allow him to, has not the right to collect any part of his salary under Article 2749 of the Civil Code.
    2. Louisiana Digest—Pleading—Par. 62.
    An exception no cause of action aimed at a petition which prays for one month’s salary although the plaintiff had never served the employer should be sustained because plaintiff had no right of action under Article 2749 of the Civil Code which gives a right of action only to an employee who has actually begun work and who has been sent away by the employer.
    Appeal from the City Court of the City of Monroe, Louisiana, Hon. B. A. Trousdale, Acting Judge.
    This is a suit to recover one ‘month’s salary. There was exception no cause of action filed which was overruled. The case was tried on its merits and there was judgment for plaintiff.
    Defendant appealed.
    Júdgment reversed, exception no cause of action sustained and plaintiff’s suit dismissed.
    M. C. Redmond, of Monroe, attorney for plaintiff, appellee,
    Dawkins and Dawkins, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings suit to recover the sum of $160.00 which he alleges is due him by the defendant for one month’s salary.

He alleges that on or about September 1, 1924, he was employed as a collector by defendant company through its manager, B. G. Mabry, at a monthly salary of $160.00, his work to begin on September 15th, and that on the 12th of September he was requested by said Mabry, manager, to wait until a later date to begin work as another manager was to take over the business and that it would be best for plaintiff to begin work under the new manager, and

“to this your petitioner agreed and on the time agreed went to the place of business to begin the work and was told by Mr. Williams (the new manager), that he would not need his services”.

And he further alleges—

“That he had been employed at a salary of $160.00 per month and as the agreement was a month to month agreement and as they have refused to allow him to go to work or to pay him that he is entitled to one month’s salary.”

And in article 6 of his petition he alleges—

“That they employed petitioner and now have discharged him without any just cause and that they have failed and will not pay him for the first month’s salary.”

And he prays for judgment for $160.00 with legal interest thereon from demand and costs.

The suit was filed November 18, 1924, and on December 1st following defendant tendered and filed an exception:

“That the allegations made by plaintiff in his petition disclose neither right nor cause of action.”

On December 8th this exception was overruled by the court, whereupon on December 16th defendant filed answer, especially reserving its rights under the exception filed.

The case was tried on its merits and resulted in a judgment in favor of the plaintiff as prayed for.

OPINION.

This suit is brought under Article 2749 of the Civil Code which reads as follows:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

Defendant’s exception of no cause of action is grounded upon the proposition that the above quoted article of the Civil Code has no application to cases where no services had been performed under an alleged contract and that plaintiff’s remedy, if any he had, was under Article 1926 of the Civil Code which provides:

“On the breach of any obligation to do or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.”

We think defendant’s exception of no cause of action is well founded and should have been sustained.

The allegations of plaintiff’s petition which, for the purposes of the trial of the exception, are taken as true, show that he did not enter into the discharge of his duties under the alleged contract. The defendant did not therefore “send away a laborer whose services he had hired” as contemplated under the article of the Civil Code relied upon.

Not having entered into the service of defendant, defendant could not send him away; but, under the specific allegations of plaintiff’s petition, defendant refused to allow him to go to work.

The case of Word vs. Winder, 16 La. Ann. Ill, is on all fours with the case at bar.

In that case plaintiff was employed as overseer on defendant’s plantation for the year 1857. During the month of August of that year defendant agreed to retain plaintiff’s services for the year 1858 at a stipulated salary, but in November or December of that year discharged him. The plaintiff, on January 1, 1858, offered to enter into the service of defendant and was refused. He sued for his salary for the year 1858, and the court said:

"The Article 2720 (now 2749) of the Civil Code does not apply to a case of this kind, for as the plaintiff had not entered into the discharge of his duties under the alleged contract, .it cannot, properly, be said that he was, according to the terms of the C. C., Art. 2719 (now Article 2748) sent away by the proprietor.
“The action, if any, could only be one in damages for a breach of contract.”

Citing Civil Code Articles 1920 and 1924 (now Articles 1926 and 1930).

This decision has not been overruled so far as we have been able to find and has been cited in two later decisions. One is the case of Tete vs. Lanaux, executor, in 45 La. Ann. 1343 (1347), 14 South. 241, where the court found that the plaintiff was discharged during his employment and hence decided that Word vs. Winder, 16 La. Ann. 111, case was not in point.

And it was cited again in the case of Burton vs. Behan, 47 La. Ann. 117, 16 South. 769, where the court in passing on the case under consideration said:

“He would have had the right to disown, under the circumstances, such ah agreement, and at the very best plaintiff could have held no better postion than the plaintiff did in the case of Word vs. Winder, 16 An. 112.”

In these later cases the facts were somewhat different but the court in each case sanctioned the holding in Word vs. Winder.

In the case of Trefethen vs. Locke, 16 La. Ann. 19, the court, after quoting Article 2720 (2749)’ of the Civil Code, said:

“This article of the Code is in the nature of a penal statute, and should be strictly construed, and only applied to cases clearly within its letter, for it is against equity for a laborer to recover full wages for services not rendered when the amount of such wages greatly exceeds the actual damage sustained by reason of his discharge from service before the expiration of the term of employment. The case of the plaintiff is not within the letter of the article of the Code; they were never in the service of the defendants under a contract of letting and hiring, and of course were not discharged from service before the expiration of the time of their employment. The plaintiffs sue the defendants for refusing to receive their services under a contract entirely unperformed in all its parts, in other words for the non performance of a contract ab initio and the action is not within the purview of Article 2720 of the Code.”

In the case of Lloyd vs. Dickson, 121 La. 915, 46 South. 919, the court, in discussing Article 2749 of the Civil Code held that a servant discharged without serious grounds of complaint may recover the salary for the unexpired term, but said, on page 919:

“But it has been held that this article is in the nature of a penal statute and has no application to a contract for the letting and hiring entirely unperformed in all of its parts, and that for the breach of such executory contracts only actual damages can be recovered.”

Citing Trefethen vs. Locke, supra.

Plaintiff’s alleged contract with defendant was, according to his petition, entirely unperformed, and this case falls squarely under the principal announced in the above case.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be and it is hereby avoided and reversed, the exception of no cause of action is sustained and plaintiff’s suit dismissed at his cost; reserving, however, to plaintiff, the right to bring suit for damages for alleged breach of the contract.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2360
    Second Circuit
    JOHN S. WILLIAMS v. ANSE WINDHAM
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Animals—Par. 10.
    Where one allows his cattle to roam at large and consume and damage the crops of another he is responsible in damages if there is a law requiring cattle to be enclosed within a fence.
    2. Louisiana Digest—Evidence—Par. 11, 13, 14.
    Courts take judicial notice of the Constitution of the United States and of the public statutes passed by Congress as well as of the Constitutions and public statutes of the different states but do not take judicial cognizance of municipal and parochial ordinances.
    3. Louisiana Digest—Appeal—Par. 729.
    Parol evidence is not admissible to prove the provisions of a parochial ordinance, and where such ordinance was not offered in evidence, the case will he remanded for the introduction of such ordinance.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    This is a suit for damages. Plaintiff owns land in the Parish of Ouachita and in the year 1924, he planted one-half acre of watermelons, two acres in cantaloupes, and one acre in corn. He alleges that during the month of July, that year, the cattle belonging to defendant were unlawfully permitted to roam at large and depredated upon his land and crops, totally destroying his watermelons, cantaloupes and corn, all worth $400.00. He brings this suit to recover that amount.
    In answer, defendant denied each and every allegation of plaintiff’s petition.
    There was judgment in the district court in favor of plaintiff for $190.00 from which judgment defendant has appealed.
    Case remanded to the district court for the purpose of permitting plaintiff to prove, if he can, that defendant’s cattle were unlawfully permitted to roam at large.
    L. P. Grisby, of Monroe, attorney for plaintiff, appellee.
    McHenry, ' Montgomery, Lampkin and Lampkin, of Monroe, attorneys for defendant, appellant.
   OPINION.

ODOM, J.

The testimony makes it perfectly clear that defendant’s cattle destroyed plaintiff’s watermelons, cantaloupes and corn.

Defendant contends that other cattle than his depredated on plaintiff’s crops and that there is no way to determine that his cattle did all the damage. He points out that on two different occasions other cattle were found an plaintiff’s premises.

On July 4, 1924, plaintiff, or someone for him, penned some cattle and sent defendant word to come and get them; and the testimony shows that it developed on this occasion only one of defendant's cows was in that bunch. And on another occasion it seems that plaintiff penned cattle of other people along with defendant’s. But it is not shown • just what damage was done to the crops on July 4th nor on the other dates when plaintiff penned' cattle other than those of defendant. Nor is it shown that the cattle of others actually depredated on plaintiff’s crops. But the testimony is overwhelming that defendant’s cattle did eat, trample upon and otherwise destroy plaintiff’s crops. All of the witnesses who testified said that it was defendant’s cattle which destroyed the crops. It is not denied that defendant’s cattle were running at large at least at times. He kept them up a portion of the time but they were seen by various persons not only on plaintiff’s premises but at other points in the neighborhood.

But counsel for defendant seriously contend that if the court should find that defendant’s cattle destroyed plaintiff’s crops no judgment can be rendered for plaintiff for the reason that no proof was offered as to the actual value of the crops at the time they were destroyed, it being conceded that the measure of damages for the destruction of growing crops is the value thereof at the time they were destroyed.

We do not agree with counsel that plaintiff made no proof of the value of his crops at the time they were destroyed. On the contrary, we think plaintiff did establish the value of his crops at least to the extent found by the district judge.

' The leading case cited by counsel for defendant, is that of Boudreaux vs. Thibadeaux, 149 La. 400, 89 South. -250. But in that case plaintiff sued for the profits on a crop which he did not grow. He was prevented from making a crop on the land on account of having been enjoined and prohibited from going on the land. Plaintiff intended to make a crop but did not do so. The injunction was dissolved, but said the court:

“It had deprived plaintiff of the opportunity to make his intended crop of cotton and corn and plaintiff seeks now to recover by way of damages the profits he would have realized if he had not been prevented by the injunction from making the crop.”

And the court held that the profits in question were altogether too uncertain to serve as a basis for judgment.

The other case cited by defendant on this point, is that of Chicago, Rock Island & Pacific R. R. Co. vs. H. C. Johnson, decided by the Supreme Court of Oklahoma, and reported in 25 Okla. 760, 107 Pac. 662 (27 L. R. A., N. S. 879), where the court said with reference to the method of arriving at the value of growing crops:

“It does not appear, however, that witnesses testified as to the value, such estimates b.eing based on the average yield and market value of crops of the same kind planted and cared for in the same manner in the same community, less the cost of marketing, harvesting, and maturing, and also by stating what the crops would have brought in their matured state at a sale in that community. Such was permissible by the authorities cited from the courts of Texas, Minnesota, New York, Arkansas and Colorado, and seemed also to be in accordance with the great weight of authority.”

In the body of the opinion the court, in the last cited case, cites and quotes from the decisions of many courts showing that the method of arriving at the value of a growing crop pursued in the case at bar is the correct method. In the case at bar the crops were not matured but they had advanced to a point where but little if any more cultivation was needed in order to mature them. The corn was in silk and tassel, the melons were formed and were of considerable size, some of the witnesses having counted, them. No more expense was needed in order to mature them. Testimony was adduced showing that other crops of melons in the same community grown under similar circumstances produced certain quantities of melons and sold for certain amounts. One witness who had a less quantity of land than did plaintiff and where melons were cultivated and handled practically as were those of plaintiff sold his melons for $219.00. It was shown also that the corn had advanced to a stage where it would make good hay at the time it was destroyed and one witness estimated that the one acre would have produced two or three tons of hay worth probably $30.00 per ton. The testimony abundantly shows that the crops had a substantial value at the time they were destroyed. Just what it would have cost to market the crops if they had matured is not shown, but we have no doubt that the district judge took into consideration that it would cost something to market them and considered that fact in arriving at his conclusion that plaintiff was entitled to recover $190.00.

We think the court’s judgment in fixing the amount of damages at that figure is eminently correct, and we would have no hesitancy in affirming the judgment on the point. But the most serious point raised by defendant is that plaintiff did not prove that defendant unlawfully allowed his cattle to roam at large.

Plaintiff alleged that defendant permitted his cattle to roam at large and depredate upon his land and - crops and alleges that in the early part of the year 1924 the Police Jury of Ouachita parish adopted an ordinance making it unlawful for owners of cattle to permit them to be at large, but he did not make any proof of the ordinance nor did he offer it in evidence.

Defendant urges the point that court cannot take judicial cognizance of ordinances of Police Juries. We are of the opinion that the point is well taken. It is well recognized that courts take judicial notice of the constitution of the United States and of the public statutes passed by Congress as well as of the constitution and public statutes of the different states; and it is equally well settled by the jurisprudence of this state that our courts, except municipal courts, do not take judicial notice of municipal ordinances and laws.

We think it was incumbent on plaintiff to prove, if he could, that cattle were not legally permitted to roam at large in Ouachita parish and that the court was not warranted under the law in taking judicial notice of an ordinance of the Police Jury not introduced nor filed.

If an ordinance had been passed prohibiting owners of cattle from allowing them to roam at large plaintiff should have proved the ordinance and should have filed and introduced it in evidence. Parochial ordinances are in the class with municipal ordinances. They are not general laws of which courts may take judicial notice.

In the case of Mclnery vs. City of Denver, 17 Colo. 302, 29 Pac. 516, the court said:

“An ordinance is not in the constitutional sense a public law. It is a mere local rule or by-law, a police or domestic regulation devoid in many respects of the characteristics of the public or general law'.”

In that case the court had under consideration a municipal ordinance, but the same may be said of parochial ordinances.

In 16 Cyc. 892, under the general topic of “Evidence”, we find the following:

“But it has been held that courts cannot unless required by statute take judicial notice of the adoption of a general law by the voters of cities, counties, towns or villages, unless according to some of the cases the statute relates to the functions of government.”

In 23 Corpus Juris, 137, we find the following :

“An order of a board of county commissioners made pursuant to statute authority is a matter of which courts in that county will not take notice unless fit is proved as other facts must be proved.”

And in 3 Corpus Juris, 147, under the general heading of “Animals”, we find the following:

“The court cannot take judicial notice as to whether a .protection fence sufficient to restrain and enclose sheep will also restrain and enclose hogs, nor of an order by the board of commissioners permitting domestic animals to run at large; this fact must be shown like any other fact, and unless proved it will be assumed that no such order has been made.”

And, under the same heading, “Animals”, on page 147, we find the following under the sub-heading “Burden of Proof”:

“In order for plaintiff to recover he must prove that he was the owner of .the land in controversy to the extent of showing a right paramount to any right of de‘fendant; that his crop and land were damaged by trespassing cattle; that the cattle were owned by or under the cqntrol of defendant, and in case of trepass by animals at large, whether or not the stock law was in force.”

In the case of State vs. Vauthier, 135 La. 766, 66 South. 187, the syllabus, which was written by the court, is as follows:

“Police Jury ordinances which define offenses and provide penalties for their commission must be offered in evidence in the district court and embraced in the transcript filed in this court.”

In Grider vs. Talley, 77 Ala. 422 (54 Am. Rep. 65) it was held that the court would not take judicial notice that a prohibition election had been held or the result thereof.

In State vs. Burkett, 31 Miss. 301 (55 Sou. 689), the defendants were indicted for failing to work the public road, they being under contract to do so. The indictment did not aver that the general law for working public roads by contract was put in operation by a county vote, and the court said:

“The demurrer to the indictment was properly sustained. There is no averment that the general law for working public roads by contract was put in operation in Carroll county by vote and courts cannot judicially know that it was done.”

In Gilmore vs. Fish, 33 Sou. 171 (Miss.), the court announced the same principle and cited many cases in support of its decision.

In the case of Bryant vs. State, 65 Miss. 435, 4 Sou. 343, also a Mississippi case, the court held that:

“A conviction for violating the local option act of Mississippi cannot be sustained when there is no proof that the act has been put in operation in the county wherein it is charged the offense was committed.”

And in ex parte Reynolds, 6 Sou. 335, another Mississippi case, it was held that courts will not take judicial cognizance that a certain county has voted for prohibition under a statute authorizing public elections for such purposes.

And in the case of Atkinson vs. Mott, by the Supreme Court of Indiana, 102 Ind. 431, (26 N. E. 217), it was held that courts will not take judicial notice of an order made by the county commissioners providing that if domestic animals break into an enclosure or wander on the lands of another the persons injured may recover.

In the case of M. K. & T. Ry. Co. vs. Savage, an Oklahoma case found in 32 Okla. 376, (122 Pacific 656) the syllabus, written by the court, is as follows:-

“This court does not take judicial notice of an order of the county commissioners exempting a county or a subdivision thereof from the operation of the general law prohibiting animals from running at large. Where such exemption prevails, it is the duty of the party relying upon such fact to allege and prove the same in order to be relieved of the general effect of the statute.”

Our conclusion therefore is that the district court was not warranted in taking judicial notice of the ordinance of the Police Jury prohibiting owners of cattle from permitting them to run at large.

During the trial of the case plaintiff offered to prove by parol that cattle were not permitted to roam at large in that section of the parish and was met by the objection on the part of counsel for defendant that that fact could not be established by parol testimony and that the testimony offered was not the best evidence, which objection was sustained by the court.

The fact that plaintiff attempted to make this proof convinces us that counsel recognized that the burden rested upon plaintiff to show as a matter of fact that cattle were not permitted to roam at large, and we conclude that plaintiff’s omission to offer the alleged ordinance in evidence and to make proof thereof was an oversight on his part.

For that reason we think it proper to remand the case to the lower court in order to permit plaintiff to prove, if he can, that cattle were not permitted to roam at large in that vicinity. We are warranted in remanding the case for the reception of such evidence under the various decisions cited in Hennen’s 'Digest, volume 1, page 94, et seq., and also in Breaux’s Digest under the heading of “Appeal” X (c) page 51.

For the reasons assigned, it is therefore ordered that this ease be remanded to the district court and there reinstated on the docket for the purpose of permitting plaintiff to prove, if he can, that defendant’s cattle were unlawfully permitted to roam at large. The costs of the appeal to be borne by appellee; all other costs to await the final result.


text:
    No. 2364
    Second Circuit
    CHARLES E. ALTMAN v. LOUISIANA CENTRAL LUMBER COMPANY
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Where it is shown that an injured employee suing under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 is barely able to walk and that he can do no work at all, and that he would not be able to stand on his feet if it were not for a brace, he is entitled to compensation as for permanent total disability to do work of any reasonable character, during the period of disability not exceeding four hundred weeks.
    (Recent amendment of Section 8, Subsection 1 (b) of Act 20 of 1914, is Act 216 of 1924. Editor’s note.)
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit brought by an injured employee for compenastion under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richie, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit under the Workmen’s Compensation Act to recover compensation at $9.90 per week for 400 weeks.

He alleges that while working for the defendant company on the 16th day of May, 1924, he received an injury to his back and other portions of the body which totally disabled him to do work of a reasonable character.

In answer, the defendant admitted that plaintiff received the injury as alleged but denied that he was injured to the extent claimed by him, and alleged that he had partially recovered and in due course will recover to such an extent that he will be able to do manual labor.

The case was tried in the district court and judgment granted in favor of the plaintiff and against the defendant for compensation at $9.90 per week for the period of plaintiff’s disability, not exceeding 400 weeks, and for $36.70 for necessary medical expenses; giving the defendant credit for $346.50 previously paid.

From this judgment the defendant has appealed.

The plaintiff answered the appeal and asked the judgment be affirmed.

The Southern Casualty Company was made a defendant in the case and judgment was asked against it and the Louisiana Central Lumber Company in solido.

The defendant Southern Casualty Company tendered an exception of no cause of action, which exception was sustained and plaintiff’s suit as to it dismissed.

Plaintiff does hot complain of the court’s judgment sustaining the exception of no cause of action.

OPINION.

The testimony makes it perfectly plain that this plaintiff while at work as a laborer in the lumber yard of the defendant company was injured in such a manner as to render him unable to do any work of a reasonable character.

It seems that while lifting a heavy piece of lumber he was struck on his back by another piece of lumber and that he was rendered almost or quite helpless on account thereof.

He says that he is barely able to walk and that he can do no work at all; that he would not be able to stand on his feet were it not for a brace which he wears and the use of a stick.

Doctor Hines, who attended plaintiff shortly after his injury, testified that plaintiff is totally disabled, and was asked when the plaintiff will reach the point' where he will be able to do work of a reasonable character, and he said:

“It is my opinion now, I believe within a proper length of time that he will be able to do some work, but as to how much I am unable to say; time is the only thing that is going to determine that at this time.”

Doctor Sanderson was asked in what time plaintiff would be able to do manual labor, and he stated:

“There may come a time when he will be well enough to do manual labor, but if he was my private patient I would advise him not to' do manual labor because I believe his recovery will be quicker and he will get more complete recovery by not doing manual labor even if he gets to the stage where he can do some work.”

Doctor Cassity, who examined the plaintiff, testified that the patient had a severe injury to the sacro iliac joint and that in his opinion it would be at least two years from the time he examined him before he would be able to do manual labor of any kind.

Plaintiff’s own testimony is that he is not able to perform any labor and for that reason moved into the country and went on a small farm so as to enable his wife and children to produce vegetables and something on which to live.

There is not one syllable of testimony in the case which shows or even indicates that the plaintiff was able on the date of the trial to do manual labor of any character. On the contrary, all of the testimony shows that he is totally disabled, with every probability of the injury being permanent.

Under the testimony there was but one judgment which could be. rendered and that was for compensation during his disability, not exceeding 400 weeks'.

It is shown that the plaintiff expended certains sums for medical attention, and while we think he is probably entitled to more than the court awarded him yet the plaintiff has not asked for an amendment of the judgment and we cannot, of course, increase the amount allowed.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, defendant to pay costs in both courts.


text:
    No. 2407
    Second Circuit
    E. V. DURBIN v. W. B. WILLIAMS
    (December 1, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial judge on questions of fact, namely, as to just what constituted the partnership agreement in question and how it was executed, being eminently correct, is affirmed.
    Appea.l from Fifth Judicial- District Court of Louisiana, Parish of Carroll. Hon. John R. McIntosh, Judge.
    This is a suit brought to effect a settlement of partnership and to recover an alleged balance.
    There was judgment for plaintiff and defendant appealed.
    Plaintiff answered the appeal asking that the amount of judgment be increased.
    Judgment affirmed.
    R. R. Reeves, of Harrisonburg, attorney for plaintiff, appellee.
    D. J. Anders, M. C. Redmond, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff and defendant en-entered into a partnership agreement to the effect that they should purchase a certain tract of standing timber and cut, log and sell the same, the price of the timber and the expense of cutting and logging it to be paid from the proceeds of the sale of the logs, the net profits to be divided equally between them.

The timber was purchased, cut and sold and a profit made on the transaction, but a dispute arose between the parties as to whether certain items of expense paid by Williams and charged against the partnership should be deducted from the total proceeds of the sale, the plaintiff claiming that said items of expense should not be charged.

The plaintiff brought this suit demanding a settlement of the partnership and to recover a balance that he claimed to be due him.

There was judgment in the District Court in favor of the plaintiff for $293.01 and costs, from which judgment defendant has appealed. Plaintiff answered the appeal and asked that the amount of the judgment be increased.

OPINION

The undisputed facts in the case are that the plaintiff, E. V. Durbin, found a small tract of standing timber in East Carroll parish, Louisiana, belonging to Yancy Bell, which could be purchased for the sum of $500.00, and he induced the defendant, Williams, to enter into a partnership with him for the purpose of purchasing this timber and cutting, logging and selling the same, with the agreement and understanding that, after deducting all' expenses, the net profits should be divided equally between them, and, further, that it was originally agreed that Durbin, the plaintiff, should have personal charge of the cutting and logging the tirm ber and was to procure the necessary teams and wagons with which the logs were to be hauled; and that subsequently it developed that plaintiff was not able to procure the necessary teams and laborers and that defendant, who owned wagons and teams then in Arkansas, took over the cutting and logging, of the timber, sold the same, paid the expenses out of the proceeds of the sale and paid plaintiff one-half of the net profits according to his method of calculation; and, further, that Williams, who was entrusted with the sale of the timber was to account to the partnership for $10.00 per thousand feet for the logs sold and that all over that amount which the logs brought was to be retained by him to compensate him for the extra trouble and expense in bringing his teams from Arkansas and for his personal supervision of the work.

The judge of the lower court found that the amount of timber cut and sold by Williams was 545,014 feet and his finding on that point is not contested by either party. The items of expense for cutting the timber at $1.00 per thousand, the hauling thereof at $3.50 per thousand for some, $4.00 per thousand for some, and $4.50 per thousand for the balance, paid and deducted by defendant, are not contested. The item of $196.00, expense for building bridges, dams and roads, was allowed by the lower judge and we think correctly. He disallowed an item of $30.00 for defendant’s expenses to Vicksburg, and there seems to be no contention by defendant that his finding on that point was not correct.

But defendant charged against the partnership $556.03 for “extra haul expense on camp outfit”, which the court disallowed, and it is over this item that the dispute in the last analysis mainly hinges.

There is another item of $139.00 “extra expense for tools, transporting hands, etc., 25c per M ft.”, which the court allowed and which plaintiff now contends was error.

So that the case is narrowed down to this:

Plaintiff claims that the court erred in allowing defendant to deduct the item of $139.00 for extra expense for tools, transporting hands,' etc., and defendant contends that the court erred in disallowing the item of $556.03 for extra haul expense on camp outfit.

We think the court did not err in allowing the $139.00 item, and correctly deducted the item of $556.03.

The defendant, Williams, testified that after Durbin, the plaintiff, found that he could not procure the necessary teams to haul the timber, Durbin suggested to him, Williams, that he use his own teams for that purpose, and “I told Mr. Durbin that I could not put my outfit as cheap as he offered. He asked me what I could do it for. I told him I would have to have $1.00 per thousand on each piece of log hauled either by my teams or other teams and would take 25c extra per thousand for cutting, furnishing tools, and so on, and he said that would be satisfactory”.

It was agreed that Williams should account to the partnership for only $10.00 per thousand feet for the logs sold and Durbin, the plaintiff, says he did agree that Williams should have $1.00 per thousand feet extra on account of his having to move his wagons, teams, etc. But he says that Williams told him he was getting $11.00 per thousand feet for the timber and that the agreement was that Williams should retain the extra dollar per thousand feet to compensate him for his extra trouble.

Williams contends, on the contrary, that the extra dollar per thousand feet which he was to get was to come out of the price of $10.00 per thousand feet for which he was to account to the partnership, but he does not explain upon what theory he was allowed to sell the timber for $11.00 per thousand feet and account to the partnership for only $10.00 per thousand.

It developed on the trial of the case that Williams- actually received $12.00 per thousand feet for the logs instead of $11.00 per thousand, but plaintiff makes no contention that he should be settled with according to the former price.

Our conclusion is that Durbin’s version of the contract is correct and that Williams was permitted to retain the extra dollar per thousand feet' in order to compensate him for the' trouble and expense of moving his teams, etc. That, we think, is the reasonable view to take, otherwise why should Durbin agree that the partnership should get only $10.00 per thousand feet when he knew that Williams was getting $1.00 per thousand more than that?

The District Judge put that construction upon the contract, arid we think he made no error in doing so.

Our conclusion on this point is greatly strengthened by defendant’s admission in his answer as follows:

“* * * and admits that plaintiff and respondent were to divide the profits equally between them.”

And counsel for defendant concedes that point.

The profit on the deal was the difference between the cost' of the timber and all expenses in logging it and the price for which it was sold. The selling price was $11.00 per thousand feet. Williams told Durbin so and we are unable to understand why Durbin should consent for Williams to retain the extra dollar per thousand feet except upon the theory that it was to be retained to compensate him for his extra trouble.

Learned counsel for defendant argued before the court orally and stresses the point in brief that the agreement that Williams should account to the partnership for only $10.00 per thousand feet was made prior to the time that Durhin found out that Williams was getting more than that for the timber, and. that Durbin agreed that the extra amount should come out of the $10.00 per thousand price.

But the testimony fails to convince us that that is true.

The district judge found that the item of $556.03 was incorrectly charged to the partnership by Williams cand gave plaintiff judgment against defendant for one-half of that amount. Plaintiff moves that the judgment be amended so as to disallow the 25c per thousand feet for saws, etc., charged on defendant’s account and allowed by the lower court. The testimony of the plaintiff is to the effect that they paid $1.00 per thousand feet for cutting the timber and that the saws and other tools were to be furnished by the partnership. On page 13 of the testimony the plaintiff testified:

“Saws and tools were to be furnished by us.”

There is no serious contention that the amount deducted was excessive.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cost.


author: CARVER, J.

text:
    No. 2429
    Second Circuit
    LONNIE G. EVERETT v. S. S. GRAYE, ET AL.
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest—Imputation—Par. 2, 7.
    Under the provisions of Article 2166 of the Civil Code when the receipt bears no imputation the payment must be imputed to that debt which the debtor at the time had most interest in discharging.
    2. Louisiana Digest—Imputation—Par. 2, 8.
    Except where the imputation of payment to the debt which the debtor had most interest in discharging would amount to a fraud on the part of both debtor and creditor, the debtor may always impute the payment as he pleases.
    3. Louisiana Digest—Imputation—Par. 3, 6.
    A creditor of several claims against the same debtor, all matured, on receiving payment from his debtor, must, in the absence of the directions from the debtor, impute the payment so made to the debt secured by privilege, or by surety, in preference to- one not so secured.
    4. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial judge that there was an agreement between the creditor and the debtor to apply the price of the cross ties to the payment of the note in question being eminently correct is affirmed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Union, Hon. 5. D. Pearce, Judge.
    This is a suit to collect a promissory note with interest and attorney’s fees. There was judgment rejecting plaintiff’s demands as to two of the defendants and non-suit as to the third defendant.
    Plaintiff appealed.
    Judgment affirmed.
    J. W. Elder, of Farmerville, Edward Everett, Jr., of Farmerville, attorneys for plaintiif, appellant.
    H. G-. Fields, of Farmerville, attorney for defendants, appellees.
   CARVER, J.

This is a suit by L. G. Everett against E. S. Gray, R. D. Cox and T. R. Crow brought on October 20, 1924* on a promissory note dated January 5, 1920, due sixty days after date, for $107.00 besides interest and attorney’s fees.

The defense is payment.

From a judgment finally rejecting plaintiff’s demands as to Cox and Crow and rejecting them as in case of non-suit as to Gray plaintiff appeals.

The district judge, in an exhaustive analysis of the testimony, found that plaintiff, who was a dealer in railroad ties, loaned Gray the money for which the note was given under an express agreement with him and the other two defendants that out of tie timber to be purchased from defendant Crow, Gray should make ties and deliver them to plaintiff to pay the note; that some eight hundred ties were so made and delivered; that after paying stumpage and hauling out of the price of these ties, enough was left to pay this note but that instead of so applying it plaintiff applied it to another debt he claimed against Gray.

We have carefully read the testimony in the case and do not find that the district judge manifestly erred in arriving at these conclusions of fact.

Plaintiff claims that according to the prevailing custom he made advances to make these ties; that he had the right to apply the proceeds of the ties to such advances as well as to the stumpage and hauling; and that the price of the ties was not sufficient to cover all these items.

After finding the facts mentioned above, the opinion of the district judge proceeds:

“Plaintiff knew that Crow and Cox were both expecting him to apply the proceeds of the ties to the payment of the note secured by them, and it was. not necessary for him to sell Gray a dollar’s worth of supplies to enable him (plaintiff) to get his money on the note. It may be custom to do that, but custom and law are not always the same thing, and this is one of the eases in which they are not the same. Hence, when plaintiff allowed Gray to get his debt for supplies of provisions, money or anything else and expected to get his pay out of the cross-tie money on the theory that according to custom he he had the right to do so he, that moment, conceived a fraudulent intent that later on ripened into an act of fraud, as against Crow and Cox. . If there was really and truly a supply debt due plaintiff growing out of the said tie transaction in addition to Gray’s said note, and even if Gray was due plaintiff still another debt, which is very probable, when he got ready to make a payment it was his legal right to say which one of the debts he desired the payment imputed to. The law does not give that right to the creditor except in exceptional cases, of which this is not one. Civil Code, Art. 2163, provides that:
“ ‘The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.’
“But even the principal debtor, Gray, could not have imputed this payment to any other debt he might have owed plaintiff than the note in contest without himself being guilty of fraud, because he knew that this tie money was intended from the beginning to go to pay the secured note. It is not claimed by plaintiff that Gray authorized him to apply this money to any particular debt, or that he was even asked by plaintiff to do so. It would seem that nothing was said about it by either plaintiff or Gray, and that imputation was made by plaintiff of his own accord and without mentioning it to Gray. In this event the law imputes the payment to the debt that the debtor had at the time most interest in discharging, under the provisions of Article 2166 of the Civil Code, which, in this case, was the security debt. In addition to this Gray’s testimony shows conclusively that he desired the tie money to be applied to the note secured by Crow and Cox, and had no other thought about the matter. This question of imputation of payments under similar circumstances to those in this case was passed upon by the Supreme Court of this state in the case of Grand Lodge, etc., vs. Murphy Construction Co., 152 La. 123, 92 South. 757, in which the Supreme Court passed upon some phases of the subject directly applicable to this case, extracts from which we reproduce here:
“ ‘In general, therefore, the debtor may-impute his payments as he pleases, 'and cannot be controlled therein by a surety (Robson & Allen vs. McKoin, 18 La. Ann. 544), although that rule may be subject to some exception, as where the payment, to the knowledge of the creditor, is derived from a source such that it would be a fraud for the creditor to consent with the debtor that the money be diverted and applied otherwise than as the debtor had expressly or impliedly agreed with his sureties.’ To sustain which statement the court here cites a long list of authorities.
“The court then proceeds as follows:
“ ‘Hence except where such imputation of payment would amount to a fraud on the part of both debtor and creditor, the debtor may always impute the payment as li© pleasss *
“ ‘Hence, also, Article 2166, C. C., has no application except to the imputation which must be made by the creditor when the debtor has not directed, or consented to some other imputation; and again it has no application except where the several debts are equally due; i. e., have matured and become exigible.’
“The court then approvingly quotes from a decision of the New Orleans Court of Appeal as follows:
“ ‘A creditor of several claims against the same debtor, all matured, receiving payment from his debtor, must, in the absence of the consent of the debtor, impute the payment so made to the debt secured b)y privilege, or by a surety, in preference to one not so secured; both the debtor and his surety may enforce this imputation.’
“And, again:
“ ‘In the case before us no imputation has been made by the debtor; and it does not appear that he consented to the imputation made by the creditor or that the creditor had informed him of the imputation he had made, or that he was aware of it. Therefore the debtor and his surety have the right to demand the imputation provided by law.’
“This reasoning seems to fit the case at bar perfectly, and leaves but little else to be said in support of the conclusion the court has reached on this question.
“Counsel for plaintiff contends that the demand of defendants is one in compensation, and invokes the rule of law that compensation cannot be pleaded . in an open account against a note—an unliquidated against a liquidated claim. That is good law, but it does not apply in this case. Defendants neither allege nor attempt to prove compensation; but they do distinctly allege and prove payment. There is a distinct difference in the two pleas. Both pleas are an admission of the debt sued upon, but one says that while the debt once existed it now no longer exists for the reason that it has been paid and extinguished, while the other is simply a declaration by the party being sued that the party suing him is also indebted to the party sued, and interposes the debt as an off-set against the debt sued upon. Payment signifies acceptance, on the part of the creditor, of money or property in satisfaction of the debt, which has extinguished the debt; while compensation is the suggestion of the coexistence of counter-claims which should extinguish each other. The court is clearly of the conclusion that the law of compensation should not apply in this case.”

The above quotation from the judge’s opinion we think correctly states the law applicable to the case.

In this court plaintiff’s counsel argues:

I.

“That there was no agreement to that effect (meaning that the price of the ties should be applied to the note) and that therefore in the absence of such an agreement the general rule of law should apply that when a person owes the same person several obligations some of which are secured and the others unsecured that the payment should be applied to the unsecured obligations.”

He cites no authority on this proposition of law, which seems to us is the contrary of the rule, as given by the Orleans Court of Appeal in the quotation containing the Grand Lodge case, supra. Besides, the judge of the lower court found that there was an agreement to apply the price of the ties to the payment of the note.

II.

That the judge erred in not permitting the application of the price of the ties to pay the advances made to Gray for the purpose of making them, which advances, together with stumpage and hauling, consumed the entire price.

The plaintiff’s account on January 7, 1920, two days after the note was given, after crediting ties evidently furnished before that time, shows a balance due by Gray of $58.72. The account at the end of all transactions shows a balance of only 89 cents against Gray.

It is evident from this, therefore, that $57.83 of the tie money at least was not consumed in necessary supplies to make the ties but was applied to a debt originating before the making of the contract involved in this case.

It is clear, therefore, that this $57.83 at least should have been applied on the note. If it had been so applied, it would have left only $49.17 due on the note, if all the items on plaintiff’s account since January 7, 1920, consisted solely of stump-age, hauling and necessary supplies to make the ties in question.

We do not think the proof sufficient to show this. Hence, even if according to law or according to custom plaintiff had the right to apply the tie money not only to stumpage and hauling but also to necessary supplies, we do not think he has shown that enough of the items were necessary supplies to consume this balance of $49.17.

Defendant, Gray, does not appeal or move to amend, so the judgment as to him, one of non-suit, cannot be changed.

It is therefore decreed that the judgment appealed from be affirmed.


text:
    No. 1175
    Second Circuit
    PAULINE R. BERNHARDT v. CHARLES SANDEL; G. E. McGRAW, Third Opponent
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor)

    1.Louisiana Digest—Landlord and Tenant—Par. 105.
    A lease contract secures the landlord’s lien against the belongings of the tenant and third persons within the leased premises, but this lien so created only secures all the rent stipulations in the lease, secures that and no more.
    2. Louisiana Digest—Landlord and Tenant —Par. 105.
    The landlord’s lien is only an auxiliary to the main obligation of lease, and when the main obligation is extinguished the landlord’s lien ceases to exist.
    3. Louisiana Digest—Chattel Mortgages— Par. 4; Landlord and Tenant—Par. 111.
    Where a chattel mortgage was placed on furniture after it had been moved into the leased premises, and, thereafter the first lease having expired, a new lease is made, the chattel mortgage thereby primes the new lease which was made after the chattel mortgage had been placed and recorded on the furniture.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Fred. M. Odom, Judge.
    This is a suit in which the landlord sued out a provisional, seizure and seized furniture on the leased premises. The holder of . the chattel mortgage on the furniture intervened.
    There was judgment for the intervenor and plaintiff landlord appealed.
    Judgment affirmed by the Court of Appeal but reversed on a rehearing. Case reopened because of a decision of the Supreme Court in another case and judgment of the trial court and first opinion of the Court of Appeal affirmed.
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    J. M. Munholland, of Monroe, -attorney for third opponent, appellee.
   CARVER, J.

This is a contest between Mrs. Bernhardt, who has a leasor’s privilege, and McGraw, who has a chattel mortgage on certain furniture sold under legal process.

McGraw rented a hotel from Mrs. Bernhardt under a lease contract beginning January 1, 1920, and ending December 31, 1920. He bought the furniture and placed it in the hotel.

On February 16, 1920, he assigned his rights under the lease to Sandel and also sold him the furniture, part cash and part credit, taking a chattel mortgage for the unpaid portion of the price, which mortgage was duly recorded.

Sandel paid all rent under the lease to McGraw but on January 4, 1921, after the expiration of that lease, made a new contract of lease with Mrs. Bernhardt, stating it was to begin January 1, 1921, and run to January 1, 1924. He paid the rent under this contract also up to and including August, 1921, but failing to pay thereafter Mrs. Bernhardt sued out a provisional seizure and seized the furniture, whereupon McGraw1 filed a • third opposition claiming that his' chattel mortgage ranked the lessor’s privilege of Mrs. Bernhardt.

The district judge decided in favor of McGraw and Mrs. Bernhardt appealed. This court, with Justice Dawkins as the organ, affirmed that judgment, but a rehearing was granted. On the rehearing that court, Judge Crow being the organ; decided in favor of Mrs. Bernhardt, but another rehearing was granted to await the decision of the Supreme Court in the case of Youree vs. Limerick, involving a similar question. That case has since been decided and is reported in Youree vs. Limerick, 157 La. 39, 101 South. 864.

Counsel for both parties concede that that case is decisive of the crucial question in this, but each claims that it supports his pretensions.

In the Youree case, during the existence of a lease from the Youree estate to one Caporal, Caporal borrowed money from one Papas on a chattel mortgage covering certain chattels then in the leased premises. Caporal sold the property to Limerick'and Leopard before this lease expired, but by agreement of all parties the lease was renewed and the lessors made a new lease to Limerick and Leopard. The rescission of the old lease was made on the representation of Laurients, agent of Papas, that the property of Papas in the leased premises was unincumbered, which representation lessors plead as an estoppel against Papas in a contest arising thereafter between them and him when Limerick and Leopard defaulted on their rent payments.

The Court of Appeal held that the lessors’ privilege only secured the rent as it became due from month to month, each payment of a month’s rent cancelling the privilege pro tanto, that where no rent Vas due there could be no privilege and that Limerick and Leopard having paid the rent up to a time subsequent to the chattel mortgage the lessors’ privilege sued on was one arising subsequently to the chattel mortgage and therefore inferior to it under section 4 of the chattel mortgage law (Act 198 of 1918) which reads as follows:

“That every mortgage shall be a lien on the property mortgaged from the time the same is filed for recordation which filing shall be notice to all parties of the existence of such mortgage and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

The case was taken up by certiorari to the Supreme Court which, on the first hearing, decided that the Court of Appeal had erred in its application of the law and that the privilege of a lessor secured the whole stipulated rent, whether due or to become due.

In the course of the opinion Justice Rogers, the organ of the court, stated that Limerick and Leopard had assumed the Caporal lease. On its being pointed out, in an application for rehearing, that they had not assumed Caporal’s lease but had obtained a new one which, of course, post dated the chattel mortgage, a rehearing was granted. On the rehearing Justice Land, was the organ of the court. The decision went again to the lessors, but this time it was placed on the ground that the plea of estoppel was good. The court said:

‘No objection having been made at the time by Papas the intervenor, to the written guaranty; or to the representation by Lauriets of him as agent, the plaintiff lessors, relying upon the faith of said guaranty, surrendered a superior lien as lessor’s under the old lease, which was can-celled, and a new lease to Limerick and Leopard with lien inferior to that of Papas, the chattel mortgage creditor, was consented to and perfected.”

Justice Rogers wrote a concurring opinion, in which the Chief Justice concurred, dissenting from the view that the lien of the second lease was inferior to the chattel mortgage, and saying:

“The majority opinion finds a distinction between the lessor’s privilege on the chattels in the leased premises prior to the lease to Leopard and Limerick and the lessor’s lien and privilege on said chattels subsequent thereto. The writer of the opinion holds that under the lease to Leopard and Limerick the lessor’s lien and privilege became inferior to the chattel mortgage. I am unable to subscribe to this.”

Counsel for the lessor in this case quoted the following from the opinion of Justice Rogers on the first hearing:

“The record establishes and the foregoing excerpt from the opinion of the Court of Appeal shows that the property covered by the chattel mortgage was in the leased premises at the time of the execution of said mortgage. The lessor’s lien and privilege therefore had attached and was in existence when the chattel mortgage was given to the intervenor and third opponent. Sec. 4 of Act 198 of 1918; R. C. L. vol....., sec. 504, p. 988.”

Counsel argues that as the property in this case was in the leased premises when the chattel mortgage was executed the “lessor’s privilege attached not only for the existing lease but for the new lease thereafter made to Sandel.

It is true that this is the view expressed by Justice Rogers and Chief Justice O’Niell, but it is the opposite of the view expressed on rehearing in the majority opinion. That opinion distinctly holds that the lien of the later lease was inferior to the lien of the chattel mortgage. We would be obliged to follow this view whether we agreed with it or not, but we think it is correct. In our opinion, while the removal of goods to leased premises, even those of a third person with his consent, makes them immediately subject to the lien, that is not what creates the lien. The lease contract does this, and the lien so created secures all the rent stipulated in the lease, but it secures only that. When that rent is all paid the contract is fully performed and becomes extinguished; that lien being only auxiliary to the main obligation, falls because there is nothing left to support it. If another lease contract be made, another lien is created, but it is a different lien from that securing the first lease.

If A, without being a lessee of B, moves into his house with his goods, A is responsible to B for the use and occupancy, but B has no lessor’s lien on A’s goods because he is not a lessee.

This shows that what creates the lien is the lease and not the moving of movable property into premises.

What the rights of the parties would be if there had been no new lease but a re-conduction of the old one, which question was argued by plaintiff’s counsel, we need not decide; that question not arising in this case. However, there is this difference between reconduction of an old lease and the execution of a new one. In reconduetion the renewal would he only, in case of a house, from month to month, wherefore if the lessor’s lien in a reconductive lease was superior to a chattel mortgage because the original lease was so superior, this would not materially impair the mortgagee’s security. He could foreclose the mortgage before much additional rent accrued.

But under the doctrine contended for by plaintiff’s counsel, that the lien of any new lease would be superior to the lien of the previous chattel mortgage merely because the mortgaged property was in the leased premises at the time the mortgage Was given, chattel mortgages could be rendered wholly valueless by the execution of long time leases, subsequent to the mortgage. Furthermore, parties taking chattel mortgage on property in leased premises do so with knowledge of the law of reconduction and if the rights of a lessor under a re-conductive lease be what counsel claims, the mortgagee is supposed to have contracted with reference to those rights, but he cannot be expected to contract with reference to rights which may be conferred by a lease made after the execution and registry of his mortgage. He knows, of course, that if the mortgaged property be in the premises leased by the mortgagor the . goods are subject to the lien created by the lease; but, as said above, the lien of that lease secures only the rent stipulated in that lease, and not rent which may thereafter be stipulated in a new lease.

As to the landlord’s right of .pledge, the entire court in the Youree case concurred in the view that this, while giving the landlord the right of retention, did not advance the rank of his lien or prevent other creditors of the lesse from seizing and selling the affected property.

For these reasons, the judgment of the lower court is affirmed.

ODOM, J. Recused.


text:
    No. 2367
    Second Circuit
    JOHN D. GRAY v. W. C. FEAZEL, ET AL.
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 53.
    The burden of proof is on the plaintiff to prove the verbal contract which is the basis of his suit.
    2. Louisiana Digest—Evidence—Par. 339, 340.
    Under Article 2277 of the Civil Code a verbal contract involving more than $500.00 must he proved at least by one' credible witness and other corroborative1 circumstances.
    3. Louisiana Digest—Evidence—Par. 339, 340, 344.
    Where plaintiff who is suing under a verbal contract involving more than $500.00 has no other testimony besides his own and no corroborating circumstances to prove his contract, he will not he given judgment thereon.
    Appeal from Third Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to recover the sum of $700.00 under an alleged contract to build and erect an oil derrick. There was judgment for plaintiff against one defendant, Feazel, and defendant Feazel, appealed.
    Judgment reversed.
    H. E. Dawkins, of Ruston, attorney for plaintiff, appellee.
    Edward Everett, Jr., of Farmerville, and J. W. Elder, of Farmerville, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit against Dr. E. Tugwell, Edward Everett, Dr. J. G. Taylor, Dr. E. Tugwell, and J. S. Dykes, all residents of Union parish, W. C. Feazel, a resident of Ouachita parish, T. E. Fraizer, a resident of Union county, Arkansas, and W. E. Coleman, a resident of Caddo parish, Louisiana, to recover the sum of $700.00 under a contract which he alleges that defendants, through their agent and co-partner, W. C. Feazel, made and entered into with him to huild and erect an oil well derrick on certain property which said defendants had leased in Union parish.

He alleges that the defendants under the contract were to pay him $700.00 for the building of the derrick. That he complied with his part of the contract by building the derrick and that defendants have failed and refused to pay him.

He further alleges that the said W. C. Feazel in making the contract with him was acting both for himself and his co-partners and that all the above named defendants had made and entered into a contract of partnership as between themselves “by the terms of which they were to build and erect a derrick upon a Certain lease acquired by them from Murray Green and that they were to immediately, after the erection of said derrick cause the said lease to be developed and cause a certain well to be drilled thereon for the purpose of discovering oil or gas thereon”.

Defendant Fraizer, being a nonresident, excepted to the jurisdiction of the court, which exception was sustained.

The other defendants answered and denied any indebtedness to plaintiff and especially alleged that plaintiff agreed to accept four shares of interest valued at $1000.00 in a lease of sixty shares “which was formed 'for the purpose of purchasing and if advisable drilling and operating the Murray Green lease” and that there was no other consideration agreed upon for the building of said derrick.

And it is especially alleged in answer that said W. C. Feazel made no contract for any of the defendants by which the plaintiff was to receive any consideration for the erection of the derrick except the four shares of interest in said lease; and the defendant, Feazel, especially alleges that the plaintiff, Gray, purchased one share of said lease for $250.00 and paid thereon only $200.00 and is therefore still due $50.00, for which he claims judgment in reconvention.

There was judgment in the district court in favor of the plaintiff and against defendant W. C. Feazel for $700.00, the amount sued for, and rejecting his demands against all the other defendants.

From this' judgment the defendant Feazel has appealed.

OPINION.

Defendant urges several grounds for the reversal of the judgment, among which is that it is not supported by the evidence; and as we have reached the conclusion that his contention on that point is correct it is not necessary to discuss the other points.

Plaintiff testified that defendant, W. C. Feazel, representing himself and the other defendants, employed him to erect a derrick on certain land in Union parish for the stipulated and agreed price of $700.00 to be paid within thirty ’days from the date of the completion of the said derrick.

Defendant Feazel, with whom plaintiff says he contracted, admits that he did employ plaintiff to erect the derrick but he denies that he agreed to pay him $700.00 therefor but, on the contrary, says that it was agreed that the consideration for the erection of the derrick was to be an interest in a certain oil and gas lease on lands in that parish owned by plaintiff and all the defendants jointly.

It seems that plaintiff and the defendants owned the lease, for which they had paid $5000.00, each owning shares or units therein, the units being valued at $250.00 each.

The defendant, Feazel, testified that plaintiff agreed to accept as compensation for the erection of the derrick four units in the lease valued at $1000.00. He testified postively that he did not agree to pay plaintiff $700.00 for the erection of the derrick.

Peazel’s testimony is corroborated by that of Fred Gulley who had no interest in the case and by that of Dr. Tugwell who owned one unit in the lease.

Mr. Gulley' was asked what statement, if any, plaintiff made to him about the derrick and he said:

“Along about when the derrick was first completed. I was talking to Gray on the street here and he told me he built it for an interest.”

And he was asked if Gray said how much, and the witness answered:

“No, sir, and some time later we were talking about it and he said Mr. Feazel wouldn’t pay him and I told him, T thought you built it for an interest,’ and he said ‘provided the well was dug and if it wasn’t he was to pay me $700.00’.”

Dr. E. Tugwell, one of the defendants, and who owned an interest in the lease, was asked:

“Q. What statement if any did he ever make to you about how he was building that derrick? What did he say to you?”

and he answered:

“He said he was erecting a derrick for units in this lease.”

Plaintiff took the stand again and testified in rebuttal and was asked what statement he had made to Mr. Gulley and he said that the only statement he made to him was that they had agreed to pay him $700.00 for the derrick, “and if business picked up to where I had plenty of work to where I could do it, I would take stock, but the way things went that I wouldn’t consider no stock”.

But he was not asked whether he had stated to Dr. Tugwell that he had agreed to accept units in the lease as his compensation and he made no denial that he had so stated to him.

Article 2277 of the Civil Code provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborative circumstances.”

See Hannay vs. N. O. Cotton Exchange, 112 La. 998, 36 South. 831.

O’Niell vs. Guyther, 123 La. 100, 48 South. 759.

Williams vs. Congregation, 128 La. 355, 54 South. 877.

Yerger vs. Murdoch, 126 La. 793, 52 South, 1028.

Plaintiff’s suit is on a contract not reduced to writing. The burden of proof was upon him to prove the contract. His testimony is not corroborated by that of any other witness and there are no corroborating circumstances. On the contrary, two witnesses other than Feazel one of whom <js wholly without interest in the case and the other, who is interested but whose testimony was not disputed by plaintiff in rebuttal, stated that plaintiff told them that he was to accept units or an interest in the lease as compensation for his work and expense of building the derrick.

In view of the above article of the Code and the authorities cited and in view of the contradictory evidence, we hold that plaintiff has failed to make out his ease.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided and plaintiff’s suit dismissed at his cost.


text:
    No. 2401
    Second Circuit
    SUSIE M. BARNES v. W. J. McCARTNEY
    (December 10, 1925, Opinion and Decree.)

      (Syllabus dy the Editor)

    1. Louisiana Digest—Sales—Par. 15.
    Under Articles 1893, 1896, 2439 and 2464 of of the Civil Code a sale, in order to be valid must have a consideration •which is a price fixed and determined by the parties.
    2. Louisiana Digest—Sales—Par. 15, 39.
    Under Article 1900 of the Civil Code if the cause expressed in the consideration of a contract of sale does not exist the contract must necessarily be invalid unless true and sufficient consideration can be proven.
    3. Louisiana Digest—Sales—Par. 15, 17, 39.
    The sale of land for consideration expressed in the deed as $500.00 is invalid for want of consideration if proof is given without objection *’-~1 money actually passed between the parties, that the $500.00 in fact represented an automobile against which there was a chattel mortgage, and the equity which the purchasers of the real estate had in the automobile which he gave as the purchase price, was practically nothing.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Franklin, Hon. John R. McIntosh, Judge.
    This is a suit brought by a married woman to have an act of sale of real estate declared null and void for the reason that it was made without a consideration.
    There was judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    E. B. Moore, of Winnsboro, attorney for plaintiff, appellant.
    T. V. Berry, of Winnsboro, attorney for defendant, appellee.
   ODOM, J.

Plaintiff is a married woman, the wife of J. L. Barnes, who joins her in this suit to authorize her. She is one of the six children of J. R. Chapman, deceased, and his wife, Mrs. Alice Chapman, now living.

At the time of the death of J. R. Chapman, plaintiff’s father, he owned in community with his said wife the South half of Southwest quarter of Section 34, Township 16 North, Range 9 East, containing eighty acres.

As one of the six children of said J. R. Chapman, plaintiff inherited an undivided one-sixth of his undivided half of said land.

On May 8, 1920, plaintiff sold to defendant by notarial act—•

“All of her rights, titles and interest, that she acquired in and to the S% of the SWM of Section 34, Township 16 North, Range 9 East, in Franklin parish, Louisiana, and all future rights that she may acquire in the future by inheritance from her mother Alice M. Chapman in the above described property.”

The consideration being stipulated as follows:

“This sale is made for and in consideration of the sum of five hundred and no/100 dollars, cash in hand paid, the receipt of which is hereby acknowledged.”

On September 3, "1924, she filed this suit to set aside said sale and to have said deed declared null and void and of no effect as to her and to be decreed to be the owner of an undivided one-sixth interest in the land described therein; and set up as ground for the voidance of said sale that it was made without consideration

“ * * * that no consideration ever passed from the said Wylie J. McCartney to your petitioner;”

that the alleged consideration in said act was never passed; .and that she was induced to make said sale through the marital coercion and persuasion of her husband, J. M. Barnes, and that the real consideration of said act of sale was a debt due by her said husband rto the purchaser, W. J. McCartney; and, further, that the sale of the portion of land which belonged to her mother, then living, was void because made in contravention of a prohibitory law.

Defendant, in answer, denied that plaintiff was induced to make the sale by marital coercion, denied that the real consideration was a debt due by plaintiff's husband, but, in section 21 of his answer set out the real facts and conditions to be as follow's:

“At some time during the fall of the year of 1919, the said J. L. Barnes, husband of the plaintiff herein, bargained, sold and delivered unto your respondent, one certain Chevrolet automobile for the price and sum of eight hundred and twenty-five and 00-100 dollars ($825.00) which said sum was by agreement and mutual consent of the parties to said sale, paid by the transfer and delivery from respondent unto the said J. L. Barnes of two horses, one wagon, one set of harness, and a certain crop of cotton and corn, then in the field, there being approximately two bales of cotton and a quantity of corn, the exact amount of which is unknown to your respondent; that your respondent accepted the delivery of the automobile and the said J. L. Barnes accepted the hereinabove described property in lieu of the price agreed upon; that during the late spring of 1920, it developed and came to the knowledge of your respondent during the month of May, 1920, that the original purchase price of said automobile had never been fully paid by said J. L. Barnes; that on or about the day before the execution of the sale of the land from the plaintiff to respondent, the plaintiff together with her said husband came to the home of respondent and the plaintiff, without in any way or manner being unduly influenced, proposed freely, voluntarily, and at her own instance and suggestion to purchase the said automobile from your respondent and to execute a good and valid deed to her present and future anticipated interest in the property belonging to the estate J. R. and Mrs. Alice M. Chapman, unto your respondent as a consideration for the sale to her of said automobile * *

There was judgment in the district court in favor of plaintiff, decreeing the act of sale “absolutely void ab initio” and decreeing her to be the owner of the interest in the land described in the deed.

Prom this judgment defendant has appealed.

OPINION.

Plaintiff especially alleged that the sale made by her to defendant is null and void because there was no consideration therefor; and if that allegation be true the sale must be set aside.

Article 1893 of the Civil Code provides:

“An obligation without a cause, or with a false unlawful cause, can have no effect.”

The “cause” of a contract is the consideration or motive for making it. C. C. 1896:

“The contract of sale is an agreement by which one gives a thing for a price in money, and the other gives the price in order to have the thing itself.
“Three circumstances concur to the perfection of the contract, to-wit: the thing sold, the price and the consent.” C. C. 2439.
“The price of the sale must be certain, that is to say, fixed and determined by the parties.” C. C. 2464.

The deed which plaintiff signed recites the the consideration for the sale was the sum of $500.00 paid in cash; but testimony, which was admitted without objection, and, indeed the answer of the defendant, shows that the recital to that effect is fiction pure and simple. The testimony also shows that there was never any price fixed and agreed upon by the parties; and it shows, further, that there was never a dollar in current money paid by the purchaser and never intended that any should be paid.

; This being true, the sale must necessarily Tall unless the vendee can show the existence of a true and sufficient consideration therefor.

Article 1900 of the Civil Code reads as f ollows:

“If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.”

In the case of Brown, administrator vs. Brown, 30 La. Ann. 966, the court said:

“When a contract, therefore, is attacked on the ground that the expressed consideration does not exist, or that there was no consideration for it, the party may show other consideration than that expressed in the contract.”

See also, to the same effect:

Landry vs. Landry, 40 La. Ann. 229, 3 South. 728.

Sere vs. Darby, 118 La. 619, 43 South. 255.

Defendant does not attempt to sustain the sale to him on the ground that the consideration recited in the deed was ever agreed upon or paid, but he alleges in answer and testifies that the real consideration which he gave for the plaintiff’s interest in the land described in the deed was one Chevrolet automobile the value of which at the time of the sale not being fixed by him or any one else.

When a sale of property is attacked by the vendor on the ground that the purported consideration was not paid and the vendee attempts to sustain it on the ground that there existed a true and sufficient consideration therefor, the burden is upon him to show that. Unless he discharges that burden, the sale must fall.

The facts in this case are that in the latter part of September, 1919, J. L. Barnes, the husband of plaintiff, purchased a Chevrolet auotomobile from May & Co. of Delhi, Louisiana, on terms of credit. Just what the price of the car was or how much he paid in cash is not shown. But the plaintiff testified, without objection, that he did not pay all cash and the defendants, in answer, alleged

“that during the late spring of 1920 it developed and came to the knowledge of your respondent during the month of May, 1920, that the original purchase price of said automobile had never been fully paid by the said J. L. Barnes * * * ”.

Plaintiff testified, without objection, that her husband executed a mortgage on said car to secure the balance of the purchase price.

In the latter part of October, 1919, only a few days after J. L. Barnes had purchased the car and executed a mortgage thereon, to secure the balance of the purchase price, he transferred the car in exchange to defendant for a lot of personal property. Subsequent to the transfer of the car to defendant, J. L. Barnes, plaintiff and his wife went to Texas, his wife staying but a short time when she came back to Louisiana, presumably leaving her husband in Texas. He did not come back to Louisiana until on the Thursday before Mrs. Barnes sold her property to defendant on Saturday, May 8, 1920. Just why he went to Texas and why he remained there is not definitely stated, but the plaintiff testified that her husband was on “scout” and this testimony, together with the fact that his first appearance in Louisiana was at the residence of defendant, who is his brother-in-law, before daylight, and the further fact that he did not accompany his wife and defendant to Winnfield when they went to make the sale but instead wrote a note to the Notary that his wife wanted to sell her property to defendant, causes us to reach the conclusion that there was some reason why he did not want to make a public appearance at the parish seat at that time; and in view of the penalty prescribed in the chattel mortgage law for disposing of a chattel under mortgage without the consent of the mortgagee, we may well imagine what his reason was.

Immediately upon his arrival in Louisiana negotiations for the sale or rather exchange of the land for the automobile were begun, which negotiations were finally consummated on Saturday, May 8, 1920. So that instead of defendant .paying the consideration for the land recited in the deed he really gave this Chevrolet car burdened with a chattel mortgage which plaintiff’s husband had executed to secure the balance of the purchase price therefor.

The testimony further shows that the car in question remained in the premises of defendant and that on Monday morning after the sale on Saturday, May & Company, who had sold it to plaintiff's husband and retained a mortgage . thereon, went to defendant’s residence, took possession of the car without any legal formalities, carried it to Delhi and kept it.

The purchase price of the car not having been paid and it being burdened with a chattel mortgage, defendant did not own and could not have owned more than a bare equity in it and could transfer no more to the plaintiff; and from the fact that it was surrendered to the holder of the chattel mortgage without protest shows that the parties realized that his equity therein’ amounted to very little if anything at all.

His equity therein being worthless, it follows therefore that he gave plaintiff nothing in exchange for her land.

But even if it be contended that defendant’s equity in the car was of any value, it is not shown what that value was, and in view of the circumstances the burden was on him to show that he gave an adequate consideration for plaintiff’s interest in the land. He has utterly failed to discharge that burden. The testimony establishes to our satisfaction that defendant knew at the time the sale was made that the purchase price of the car had never been paid and that May & Company, holders of the chattel mortgage, intended to pursue the property in order to collect the debt. He says that he received a letter from them demanding payment of the debt. This was before the transfer of the automobile to plaintiff. He says, however, that plaintiff’s husband wrote him from Texas that he had sent a check to cover the indebtedness and that Mrs. Barnes told his wife that the debt was paid.

That was only hearsay, and in view of the fact that May & Company had written him that there was a balance due he should have investigated further. He knew, we think, that his equity in the car amounted to nothing and that the holders of the chattel mortgage would take steps to repossess it.

We hold therefore that this sale by plaintiff to deferidant was in reality without any consideration whatever. There being no consideration for the sale, it must fall.

Having reached this conclusion, it is needless to discuss the other points raised by plaintiff.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed; defendant to pay all costs.


author: REYNOLDS, J.

text:
    No. 2402
    Second Circuit
    R. S. MILLER v. J. H. BOZEMAN
    (December 10, 1925. Opinion and Decree.)

      {Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on a question of fact namely, as to what was the contract between the plaintiff and defendant, not being manifestly erroneous is affirmed.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Franklin, Hon. John R. McIntosh, Judge.

      This is a suit for the value of one bale of cotton claimed as a balance due as rent on land leased.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. B. Moore, of Winnsboro, attorney for plaintiff, appellant.
    Thompson & Berry, of Winnsboro, attorneys for defendant, appellee.
    STATEMENT OF CASE.
    Plaintiff sues defendant for the value of one bale of cotton, claimed as a balance due as rent by defendant on land leased by plaintiff to defendant for the year 1923. Plaintiff admits having received two bales of cotton on account of rent from defendant.
    Defendant claims that the rent contract was for one bale of cotton for every fifteen acres cultivated and that he only cultivated twenty-eight acres of plaintiff’s land.
    On these issues 'the case was tried and judgment was rendered in favor of defendant and plaintiff appealed.
   REYNOLDS, J.

OPINION.

A correct decision of the difference between plaintiff and defendant depends upon what really was the contract between them.

Plaintiff swears positively that he leased defendant the land cultivated by him for three bales of cotton.

Defendant swears equally positively that he leased the land for one 500-pound bale of cotton for every fifteen acres of land cultivated by him, and that he only cultivated twenty-eight acres.

And the question of whether plaintiff or defendant is correct is purely one of fact.

Plaintiff admits that he and defendant discussed the question of how many acres of land it was customary to lease for a 500-pound bale of cotton as rent but denies that he told J. J. Whellus he had rented defendant forty acres of land.

J. J. Whellus testified that plaintiff told him he had leased defendant forty acres of land. Also that he had himself formerly cultivated the same tract of land and knows it to contain only thirty acres.

Defendant admitted that he had told Marcus Bozeman, Brown Taylor and C. R. Cockerham that he was to pay plaintiff three bales of cotton as rent, but each of these persons as witnesses corroborated defendant’s testimony that he told them he was to pay plaintiff three bales of cotton as rent for forty acres of land.

ffhe district judge who saw and heard the witnesses testify and was probably personally acquainted with them decided this question of fact in favor of defendant. From all the evidence in the case we cannot say that he manifestly erred.

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


text:
    No. 2426½
    Second Circuit
    JOHN A. HEMLER v. MILES HAWKINS; MRS. DELIA E. THOMASON, Intervenor
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest—Fraud—Par. 3.
    Fraud will not be presumed. He who alleges it must prove it.
    2. Louisiana Digest—Execution—Par. 166.
    Where the intervenor who claimed first preference out of the proceeds of a sale under execution of a judgment because of the lessor’s privilege and the privilege as furnisher of necessary plantation supplies, which the intervenor had on the property to be sold, proves her ease to be true, she will be given first preference out of tbe proceeds of the sale.
    3. Louisiana Digest—Appeal—Par. 512.
    The facts do not justify damages for a frivolous appeal.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    This is a suit in which the plaintiff caused an execution of a judgment under which cotton, corn, mules and a buggy were seized and sold. Mrs. Delia E. Thomason intervened and claimed to be paid by first preference out of the proceeds of the sale because of a lessor’s lien and privilege for furnishing necessary plantation supplies.
    There was judgment for intervenor
    and plaintiff appealed.
    Judgment affirmed.
    George Wesley Smith, of Rayville, attorney for plaintiff, appellant.
    Ellis and Ellis, of Rayville, attorneys for intervenor, appellee.
    STATEMENT OF THE CASE.
    Plaintiff caused execution to issue upon a judgment he had obtained against defendant in suit No. 5340 on the docket of the District Court of Richland parish entitled John A. Hemler versus Miles Hawkins under which certain cotton and corn, mules and a buggy were seized and sold.
    Mrs. Delia E. Thomason intervened in the suit and by way of third opposition claimed to be paid by first preference out of the proceeds of the sale $250.00 as lessor of defendant for rent of the land on which the cotton and corn were grown and on which the rent of the property seized was situated at the time of the seizure, and the further sum of $505.16 for necessary supplies furnished by her to the defendant to enable him to make the crop seized.
    Plaintiff denied the allegations of the 'intervention and alleged that intervenor’s claims were fraudulent and the result of collusion between her and defendant.
    On these issues the case was tried and there was judgment in favor of intervenor for the full amount claimed by her with recognition of her lessor’s privilege to the extent of $252.00 on all the property seized and sold and with recognition of her .privilege as furnisher of supplies to the extent of $505.16, less buggy, $35.00 and less doctor’s bill $80.50, leaving a net amount of $389.66, on the cotton and corn seized and sold.
    Plaintiff appealed, and intervenor, third opponent, has answered the appeal and asks for damages for frivolous appeal.
   REYNOLDS, J.

OPINION.

Intervenor, third opponent, established the correctness of her account against defendant, Miles Hawkins, for $506.16, for necessary plantation supplies furnished him to make the crop, and for $252.00, rent, by Ernest Thomason, who swore positively to the correctness of each item of the account, and by the defendant, Miles Hawkins, who, in his answer to the intervention, admitted its correctness and testified to. its correctness as a witness.

Plaintiff relied on the testimony of Cage McLemore and Clay Croxton, each of whom swore that he had sold goods to Miles Hawkins from time to time during the year 1924 for cash.

We are convinced that this evidence is absolutely true, but it in no way disproves the testimony of Ernest Thomason or Miles Hawkins, both of whom swore to the correctness of each item of intervenor, third opponent’s account.

Plaintiff specially calls our attention to the account of intervenor, third opponent, against Miles Hawkins as shown on pages 45, 47 and 49 of a bound book filed in evidence.

Our examination of the account, as kept in the book, indicates that it was copied at one sitting; but this fact is not sufficient, in our opinion, to warrant this court in holding that there was collusion or fraud between intervenor, third opponent and defendant.

Fraud will not be presumed. He who alleges it must prove it.

“Fraud is never imputed, except on legal and convincing evidence produced by one alleging it.”

Strauss vs. Insurance Co. of N. A., 157 La. 661, 102 South. 861.

The district judge who tried the case and saw and heard the witnesses and probably knew them, gave judgment in favor of intervenor, third opponent, against defendant, Miles Hawkins, for the full amount claimed against him, and, as against plaintiff, John A. Hemler, held that she had a first privilege, as lessor, for $252.00 with 5% per annum interest from May 5, 1925, on the proceeds of the sale of all the property, and a first privilege, as furnisher of necessary plantation supplies for $505.16, less the buggy, $35.00, and less doctor’s bills, $80.50, with 5% per annum interest from May 16, 1925.

The evidence satisfies us that the judgment of the lower court is correct, except, perhaps, as to the item of doctor’s bills, and as the judgment of the lower court as to this item was against intervenor, third oppo’nent and she makes no complaint, it cannot be disturbed.

Intervenor, third opponent asks damages for frivolous appeal, but we do not think, under the facts presented in this case, that damages for frivolous appeal should be allowed.

For the above reasons, the judgment of the lower court is affirmed.


text:
    No. 2430
    Second Circuit
    W. S. MOORE v. A. M. WEBB
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court that the defendant agreed to accept the return of a cow which had been sold to him by the plaintiff and thereby made himself liable for the return of the purchase price of the plaintiff being clearly correct is affirmed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to recover the price of a cow which had been purchased, but proved unsatisfactory and was returned to the defendant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Barksdale, Warren & McBride, of Ruston, attorneys for plaintiff, appellee.
    H. E. Dawkins, of Ruston, attorney for defendant appellant.
   ODOM, J.

Plaintiff brings this suit to recover of defendant $150.00 and interest from September 1, 1919, until paid and alleges as a cause of action that on or about April 1, 1919, he purchased a milk cow from defendant at the agreed price of $150.00 under a guarantee that it should be satisfactory to him in every respect that the cow did not prove satisfactory, and that at the suggestion of defendant he returned the cow and that although defendant agreed to refund the purchase price he has failed and now refuses to do so.

Defendant, in answer, admitted that he sold the cow to plaintiff, but denied that he warranted her qualities and specifically denied that he agreed to take her back and refund the price; and he especially denied that there was any agreed price for the cow and set up that he sold the plaintiff four head of cattle for $280.00, the cow being one of them.

There was judgment in the district court in favor of plaintiff for $140.00 and costs, from which judgment defendant has appealed.

OPINION.

The evidence in the case is conflicting. Plaintiff testified positively that he purchased the cow in question and two yearlings from defendant for the sum of $1S0.00, the agreed price of the cow being $150.00, and that for the yearlings being $30.00.

He also swears positively that the defendant warranted the cow to be gentle and that she would give at least two and a half or three gallons of milk per day. He admits that he saw the cow milked before he purchased her, and saw that she gave but little milk, but says he was informed by defendant and defendant’s wife that the. cow had ' recently lost a calf which accounted for the fact that she was not giving much milk at the time, but he was assured that she would soon improve under proper treatment and care.

He says he fed the cow well and milked her twice a day and that she failed to improve.

It seems that he saw the defendant and told him that the cow had not improved and that he agreed to try her for thirty days longer. At the end of that time he told defendant the cow was not up to the standard and he says that defendant told him to return her and he would refund the price.

Plaintiff employed a young man named Heflin to take the cow back to defendant. Heflin says that on his way with the cow he met defendant and told him that he was returning the cow for plaintiff and that defendant told him where he lived and instructed him to put the cow in his pasture and that he did so.

As stated, plaintiff swears positively that defendant told him to return the cow and he would refund the price.

The cow was returned and put in defendant’s pasture within about sixty days after the sale which was in April, 1919.

The case was tried in May, 1925, the cow remaining in defendant’s pasture from the day she was returned until the trial of the case, or about six years, during all of which time defendant cared for and milked her as he did his other cows. .During all that time he did not offer to return the cow to plaintiff, although he says that he told plaintiff he would not agree to take her back, which is denied by plaintiff.

As stated, defendant denied that he ever agreed to take back the cow and return the price and he also denied that he told Heflin to put the cow in his pasture, but says, on the contrary, he only told Heflin where he lived and told him he would not take the cow back.

On this point we accept the testimony of Heflin, who was not interested in the outcome of the trial, and especially in view of the fact that defendant admits that he did tell Heflin where he lived and Heflin did put the cow in defendant’s ■ pasture after the interview. It does not seem probable that he would have put the cow in defendant’s pasture if defendant had told him not to do so. It is certain that defendant knew the cow was being taken to his pasture and that he at least made no protest.

Plaintiff’s testimony that defendant agreed to take the cow back is very strongly corroborated by that of Heflin and by the fact that defendant allowed the cow to remain in his pasture and that he milked her, bred her and cared for her for six years after her return. It is further corroborated by that of Covington, who said that at the time of the sale he was present and heard defendant say that if the cow did not give satisfacton he would take her back.

There is conflict in the testimony as to whether as a matter of fact the cow was what plaintiff says she was guaranteed to be; but since we find that defendant agreed that she should be returned it is not necessary to discuss that point.

There is also conflict in the testimony as to the price of the cow. It is plaintiff’s contention that he purchased one cow and two yearlings, the cow being valued at $150.00 and the yearlings at $30.00. Defendant swears that he sold plaintiff two cows and two yearlings for the lump sum of $280.00. He admits, however, that he priced one cow at $100.00, one at $150.00 and two yearlings at $30.00. Plaintiff got the $150.00 cow. It seems that the cow that was valued at $100.00 was taken by Covington who paid the $100.00 by a check which check, we gather, was delivered to the plaintiff and by him turned over to defendant.

As we hold that defendant agreed to the return of the cow in question, it is needless to discuss the various other phases of the case presented.

The district judge awarded judgment for -plaintiff in the sum of $140.00 instead of $150.00, and plaintiff has not appealed nor has he moved for an amendment of. the judgment.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at defendant’s costs in both courts.