author: BYRNES, J.

text:
    No. 11,396
    Orleans
    OWENS v. WOODS
    (April 9, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Elections by the People — Par. 49.
    In disputed election cases light pencil marks, or slightly irregular crosses or faint erasures on ballots not calculated to serve as marks of identification will not invalidate ballots.
    Appeal from Division “E,” Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by Frank J. Owens against Charles J. Woods.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. T. Prowell, John C. Davey, of New Orleans, attorneys for plaintiff, appellant.
    Rene Yiosca and F. C. Querens, of New Orleans, attorneys for defendant, appellee.
   BYRNES, J.

Plaintiff and defendant were candidates for the House of Representatives from the Second Ward, Parish of Orleans, at the Second Democratic Primary held on February 28, 1928.

The official returns, as promulgated by the Orleans Parish Democratic Executive Committee gave plaintiff nine hundred fifty-nine (959) votes and defendant nine hundred sixty-five (965) votes.

The Parish Committee declared defendant the nominee for the office by a majority of six (6) votes. Plaintiff thereupon filed this suit against defendant and the Orleans Parish Democratic Committee to have the action of Parish Committee set aside and to be declared the nominee.

The material allegations of his petition are substantially as follows:

(1) That the true and correct returns will show that he received over one thousand (1000) votes and defendant less than nine hundred (900).

(2) In Precinct 2, although poll list shows two hundred thirteen (213) electors voted, tally sheet shows only two hundred seven (207) ballots were counted, with no notation of spoiled ballots; these six (6) votes were cast for him, and the comissioners counted ballots illegally cast in favor of defendant.

(3) In Precinct 6, all commissioners did not sign tally sheet or poll list and though poll list shows one hundred sixteen (116) electors voted, tally sheet shows only one hundred thirteen (113) ballots were counted; these three (3) ballots were cast for him and the commissioners counted illegal ballots for defendant.

(4) In Precinct 7, there was a discrepancy of five (5) votes between the poll list and tally sheet, which five (5) votes were cast for him, illegal votes were cast for defendant and persons were allowed to vote in this precinct who were not entitled to vote.

(5) In Precinct 8, there was again a discrepancy of five (5) votes between the poll list and tally, which five (5) votes were cast for him, and again illegal votes were cast for defendant.

(6) In Precinct 9, there was again discrepancy between the poll list and tally sheet of five (5) votes, which five (5) votes were cast for him, ballots were given out in rotation in direct violation of law, “endless chain” was worked, number of . ballots were changed after they were put down on poll list and no record was kept on poll list of the number of poll tax receipts or registration certificates as requested by law, election was held illegally and whole box should he rejected.

(7) In Precinct 10, there was again a discrepancy between poll list and tally sheet of six (6) votes, which six (6) votes were cast for him; all commissioners did not' sign poll list and tally sheets and they did not keep numbers of poll tax receipts and registration certificates; ballots were given out in rotation and commissioners allowed deputy sheriff and others without right to enter the room where election was held and interfere with the voting; commissioners allowed eight (8) persons (-fchose names are given) to vote, who had no right to vote; that Edward Burke, suposed to be deputy sheriff, assumed charge of the polls, bullied commissioners and intimidated the voters; that election was entirely illegal and all the votes should be rejected; that commissioners did not count the ballots and did not keep poll list as required by law; they permitted Deputy Sheriff Burke to handle all the ballots when poll closed and made up tally sheets in advance of opening' ballot box.

(8) That it is necessary for court to order boxes in Precincts b, f, g and k opened and votes recounted on account of aforesaid fraud; that the ballots in Precincts 9 and 10 should be entirely rejected, because all laws pertaining to elections were therein violated and he should be declared nominee.

To this petiton defendant filed exceptions of misjoinder, nonjoinder and ■ no right or cause of action, annexing certified official returns from all ten (10) precincts in the ward and also certified copies of official returns, of First Primary held January 17, 1928. At same time defendant answered denying charges of fraud and irregularity on the part of defendant and declaring that defendant actually received more votes than plaintiff and in the alternative and only for further answer by way of reconventional demand defendant averred that a certain lady by name Mrs. Claude Simons had voted illegally for plaintiff without proper poll tax for 1928 and her vote should be deducted.

That numerous spoiled ballots were counted for plaintiff, ballots which were identified ballots marked with other than 'a cross mark as required by law, ballots in which cross marks was not placed in space fixed by law, ballots marked in ink and blue pencil, ballots’ with numbers attached and other illegal ballots, all of which amounted to- fifteen (15) votes in each of Precincts 1, 3 and 4 of Ward 2, while similar ballots in favor of defendant were not counted.

Defendant further averred that if it should become necessary, because of any possible change in results, then the ballots in Precincts 1, 3 and 4 should be recounted and all legal ballots in favor of defendant counted for him and all illegal ballots in favor of plaintiff rejected; that plaintiff was illegally given one hundred fifty (150) votes in Precinct 4 when the tally sheet shows he received only one hundred forty-five (145), which five (5) votes should be rejected.

Defendant then prayed that suit be dismissed; that the official .count be upheld, or if, in the alternative, it should be necessary then the ballots in Precinct 1, 3 and 4 be counted.

The Orleans Parish Committee answered that it had no interest in the matter and attached to its answer certified copy of all of its minute eutried relative to this contest.

The trial judge maintained the exception of misjoinder and dismissed the suit as to Parish Committee, though he stated that he realized the question was close, he overruled exception of no cause of action and declined to throw out' boxes nine and ten on the ground that charges of fraud were too vague. He then appointed on recommendation of opposing attorney, commissioners to count the ballots in boxes two, six, seven, eight, nine and ten. After deducting five (5) ballots from plaintiff in Precinct 4, on the ground that the tally sheet from that precinct sent to the Parish Committee showed only one hundred forty-five (145) votes, and passing on Seventy-four (74) disputed ballots, he gave judgment for defendant declaring that he had nine hundred forty-five (945) votes and plaintiff nine hundred thirty-five (935).

In reaching this conclusion, trial judge credited Woods with twenty-three (23) of the disputed, ballots and Owens with nineteen (19). He rejected as illegal twenty-seven (27) votes which had been given to Woods and ten (10) which had been given to Owens.

From that judgment plaintiff has appealed.

In this court defendant urges emphatically his exception of no cause of action and cites many decisions of the appellate courts to the effect that general allegations as to fraud and illegality in election do not suffice in petitoins of this sort, but specific details should be set forth.

While we recognize with the trial judge that the question is a close one and the margin narrow, because the specifications of illegality are not set forth in detail, we think that these defects were properly subject more to an excerption of vagueness than to one of no cause of action and that taken as a whole the petition did allege a cause of action. This conclusion is based on the fact that the rights of defendant were substantially protected by the trial judge in his rulings as to admissibility of evidence tendered by plaintiff and the right to amend where no cause of action is based on insufficiency of allegation has been liberally etxended in recent cases.

See James vs. New Orleans, 151 La. 480, 91 So. 846.

Southern Equipment Co. vs. Cardwell Stove Co., 154 La. 109, 97 So. 332.

Stone vs. Crescent Encampment Co., Orl. Apip. Dig. 131.

Although plaintiff’s brief state- that seventy-nine (79) ballots were protested before the trial judge of which fifty (50) were cast for defendant and twenty-nine (29) for plaintiff, we find in the record seventy-three (73) ballots which added to the five (5) in' contest from Precinct 4 make a total of seventy-eight (78).

In passing on the legality of tlie seventy-three (73) disputed ballots, we have been guided by the decision of the Supreme Court in the case of Perez vs. Cognevich, 155 La. 331, 100 So. 444; and by that of this Court in the recent case of Nolan vs. Martin, decided on March —, not yet reported.

In the Perez case the Supreme Court held as follows:

(1) Ballot with pencil dot slightly below- and to the left of one of the squares, was not invalid as marked for identification.

(2) Irregular cross marks on ballot did not invalidate it, as cross mark was not required, to .be perfect.

(3) Erasures on ballot, which might serve as identification marks did invalidate it.

- Of the fifteen (15) disputed ballots from the Second Precinct, we found that- eight (8) of those cast for Owens were good and three (3) bad, that two (2)- of these cast for Woods were good and two (2) bad.

Of the forty-one (41) disputed votes from the Seventh Precinct, we found eight (8) of those cast for Owens good and two (2) bad, twenty-seven (27) of those cast for Woods good and four (4) bad. Most of these ballots had been disputed, because they showed more or less plainly that the cross mark had been erased in the square, but we did not consider these erasures sufficiently plain to serve as identification marks, particularly where one box contained so many similar erasures.

In Precinct 8, of the three (3) disputed ballots, we found two (2) cast for Owens good and one (1) cast for Woods bad.

In Precinct 9, of the four (4) disputed votes we found three (3) cast for Owens good and one (1) for Woods good.

In Precinct 10, of the ten (10) disputed votes, we found three (3) cast for Owens good, four (4) cast for Woods good and three (3) bad.

To sum up, excluding the fifteen (15) illegal ballots, we credit Woods with thirty-four (34) of the disputed ballots and Owens with twenty-four (24), thereby giving Woods eleven (11) more ballots and Owens only five (5) more than the trial judge and increasing his majority to sixteen (16).

As Woods would still have a majority, even if we gave Owens the five (5) votes from Precinct 4, we do not find it necessary to decide the question as to whether the actual number of strokes on the tally sheet should control or the total figure as written out by the commissioners.

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9810
    Orleans
    CALIFORNIA FRUIT EXCHANGE v. MEYER, INC.
    (July 14, 1927. Opinion and Decree.)
    (October 3, 1927. Rehearing Refused.)
    (April 10, 1928. Decree Supreme Court on Writ of Certiorari and Review. Judgment Affirmed.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 1.
    Whatever may be the rule in common law states, in Louisiana, we do not recognize “divided incidents of ownership” subsisting in the buyer and seller of personal property. Here the perfection of a contract of sale confers upon the buyer full, absolute and exclusive dominion over the thing sold.
    2. Louisiana Digest — Sales—Par. 58, 116.
    The rule that delivery of goods by the vendor to the carrier constitutes delivery to the buyer, does not apply where, from any cause, the provision of the contract of sale relative to delivery, is not complied with.
    3.Louisiana Digest — Sales—Par. 58, 11, 116.
    The delivery by a vendor of a car of (peaches to a railroad in California, consigned to the vendor in New Orleans, under a bill of lading in the shipper’s name with instructions to notify the buyer in New Orleans, is not in accord with a contract calling for delivery F. O. B. California or “California acceptance” and will not serve to transfer the property in the peaches to the buyer so as to impose the risk of transportation upon him.
    Appeal from Civil District Court for the Parish of Orleans, Division “D.” Hon. Porter Parker, Judge.
    Action by California Fruit Exchange against John Meyer, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Spencer, Gidiere, Phelps &. Dunbar, of New Orleans, attorneys for plaintiff, appellant.
    Edgar M. Cahn, of New Orleans, attorney for' defendant, appellee.
   WESTERFIELD, J.

Plaintiff, through its local agent, sold defendant a car of peaches to be shipped from California. There is some dispute as to whether the delivery was to be made in California or New Orleans, but we are convinced that the agreement was for “California acceptance,” which, we are advised, means that defendant was to assume the risk in transit. The peaches were shipped consigned to plaintiff with instructions to notify defendant, or as it is termed “shipper’s order notify.” Upon arrival defendant rejected the ipeaches, whereupon they were sold at a loss equal to the amount sued for herein, ($407.14). It will he observed that plaintiff, the vendor of the peaches, did not consign the shipment to defendant, the purchaser, but obtained a bill of lading in its name, as consignor, and consignee, thus retaining control over the peaches en route.

The question is whether such shipment is in conformity with the contract and constitutes a delivery to defendant in California, so as to transfer title to the peaches to defendant with consequent risk of transportation to New Orleans.

It will be conceded, as beyond controversy, that if the peaches had been delivered to the carrier consigned to defendant, such delivery would amount to an appropriation of the peaches to the contract and would have placed the risk of transportation upon the buyer. Plaintiff chose to ship the peaches to itself, doubtless for the purpose of securing the selling price. Does this action o.f plaintiff bring the case without the rule, res perrit domino? The propriety of defendant’s action in rejecting the peaches, and the amount of damages claimed is not questioned, assuming delivery was made in California under the contract.

The way bill was inscribed with the legend “permit inspection before unloading without hill of lading. Deliver without bill of lading on written order of California Fruit Exchange.”

This inscription on the way bill emphasized the intention of plaintiff to retain control over the shipment en route, and negatives any idea that there was any appropriation of the goods to the contract in California. The Uniform Bill of Lading Act, which has been adopted in this State (Act 92 of 1912) contains the following of interest here:

“Where th.e goods are shipped by the consignor in accordance with a contract or order for their purchase, the form in which the bill is taken by the consignor shall indicate *he transfer or the retention of the property or right to the possession of the goods as follows:
“(a) Where by the bill the goods are delivered to the buyer or to his agent, or to the order of the buyer, or of his agent, the consignor thereby transfers the property in the goods to the buyer.
“(b) Where by the bill the goods are deliverable to the seller or to his agent, or to the order -of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligation under the contract.”

It is contended that the last paragraph of subsection (b) to the effect that “if, except for the form of the hill, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligation under the contract” is applicable here. This provision of the Uniform Bill of Lading Act was copied from Mr. Williston. See Willis-ton on Sales, Sec. 281. Our attention is called to the following interesting excerpt from the Harvard Law Review (34, p. 750):

“When a seller ships goods to the order of a buyer, or with a view to perform a prior contract with a buyer, and takes the bill of lading to his own order, his purpose in so doing is merely to secure payment of the price. The situation is in legal effect the same as if he had absolutely transferred title to the buyer and the buyer had mortgaged back that title to the seller to secure payment of the price. It has seemed hard for the courts to understand that both seller and buyer have incidents ol ownership. It is too often apparently taken for granted that one party or the other must have title, and that the other can have only a contract right; yet the illustrations in the law of divided ihcidents of ownership are so numerous that there seems little excuse for misunderstanding.”

We are referred to Standard Casing Co., Inc., vs. California Casing Co., Inc., 233 N. Y. 413, and Rosenberg Bros. & Co. vs. Buffan Co., Inc., 234 N. Y. 338, and numerous other cases from other jurisdictions as examples of courts which have solved the difficulty in understanding “the law of divided incidents of ownership” and are no longer lost in the fog of inexcusable misunderstanding. We quote from the last cited case the following:

“We held in Standard Casing Co., Inc., vs. California Casing Co., Inc., 233 N. Y. 413, 135 N. E. 834, that upon a sale F. O. B., title passes to the seller from the moment of delivery to the carrier; that the rule is subordinate to intention, ibut that the fact that the bill of lading is made out to the seller or order does not indicate an inconsistent intention. The case cited is conclusive on the. question of delivery.”

In confessing ourselves within the ban of the author’s criticism, we might say in extenuation that there is in the Civil law a very different view of ownership from that which obtains at common law, as we shall shortly demonstrate but, candor compels the acknowledgment, that in the rule announced by Mr. Williston, and approved by the courts referred to, for whom we have the highest respect, we find no justification in equity or expediency. To. charge a buyer with all the responsibility of ownership and accord him none of its privileges, does not seem fair to us. The seller retains the jus desponendi and can divert the shipment at any time before arrival at destination. It is his property in every respect except as involving responsibility for loss. He sells it and yet owns it, thus proving that in commerce, unlike gastronomies, it is not impossible to eat your cake and have it too. If there is any sound commercial reason for this innovation, it has escaped us. The price must be secured it is said. If so, the contract can stipulate many methods of securing it, but when the agreement of sale contemplates credit, we see no objection to such provision. We seem to have heard somewhere the remark that business is based on credit. It will be objected that we are dealing with a statute of Louisiana which declares that the form of the bill of lading is immaterial where, but for the form title would have passed to the buyer. Well, we don’t know what this means, but feel that we know what it does no.t mean, in the light of our system of law and jurisprudence. The courts of the common law states, expressing views contrary to our own, are not concerned with the provisions of our Civil Code nor the principles of the Civil Law.

“Ownership is the right by which a thing belongs to some one in particular to the exclusion of all other persons.” R. C. C. 488.
“The ownership of a thing is vested in him who has immediate dominion of it, and not in him who has a mere beneficiary right to it.” R. C. C. 489.
“The general idea of property under the Roman law and our own is that of simple uniform and absolute dominion. The subordinate exceptions of use, usufruct, and servitudes are abundantly sufficient to meet all of the wants of civilization, and there is no warrant of law no reason of policy for. the introduction of any other.” Eustis C. J. in State vs. McDonogh, 8 Ann. 171.
“Those titles (Civil law titles, of ownership) and the modification of the rights of ownership under our laws are few and easily understood, they answer all purposes of reasonable use; and it is the duty of the courts to maintain them in their simplicity. The gravest consequences, the most dangerous confusion, and the disturbance of public order must follow any attempt to introduce within our limits with all their train of intricate, and except for the initiated, unintelligible modes and distinctions, the titles to property supported by the complicated and involved jurisprudence of the common law states.” Penny vs. Christmas, 7 Rob. 481; Ricks vs. Goodrich, 3 La. Ann. 212; Hayden vs. Nutt, 4 La. Ann. 65 and 70; State vs. Bailey, 4 La. Ann. 376; Terrell vs. Allen, 7 La. Ann. 46; Succ. of Franklin-Adelicia Acklen and child Emma, vs. Franklin, 7 La. Ann. 395; Xiques vs. Bujac, 7 La. Ann. 498; State of Louisiana, State of Maryland vs. The Executors of McDonogh and City of New Orleans, 8 La. 171.

In Louisiana a sale transfers to the buyer the full ownership of the thing sold. The seller has no “incident of ownership.”

It is very doubtful whether the weight of authority in the common law states is with counsel. We quote the following note appearing in 2 L. R. H. (N. S.) 1078:

“Since the intention of the parties is the ultimate criterion of the question of whether or not the title passes upon the delivery of the goods by the seller to a common carrier, the fact that a draft for the purchase price is attached to the bill of lading is not necessarily decisive under any circumstances but is of considerable importance under some circumstances as Illustrating the intention of the parties. Its importance in this respect depends a good deal upon the fact whether, by the terms of the bill of lading, the goods are deliverable to the purchaser, or to the order of the seller (or a third person). As pointed out in the opinion in Hamilton vs. Joseph Schlitz Brewing Company, (104 N. W. 438, the case annotated), and the authorities there cited, the fact of making the bill of lading deliverable to the order of the seller is of itself almost decisive, in the absence of evidence to the contrary, to show his intention to reserve the jus disponendi, and thus to prevent the title from passing to the purchaser at the time of the delivery of the goods to the carrier. The attaching of a draft for the purchase price to such a bill of lading merely strengthens or corroborates the inference that it was not intended that the tile should pass, whicch, in the absence of countervailing circumstances, could be drawn without its aid from the form' of the bill of lading.”

In Bruno vs. Phillips, 143 N. E. 21, the Supreme Court of Indiana observes:

“That a bill of lading for the property sold is taken in the seller’s name when not rebutted bycontrary evidence is decisive to show the seller’s intention to preserve the jus disponendi to prevent the property from passing to the buyer.” See also Machen on Sales, Yol. I, p. 648.

In the case of Dows, et al., vs. National Exchange Bank, 91 U. S. 618, the Supreme Court of the United States said:

“That such is the legal effect of a bill of lading taken deliverable to the shipper's. own order, that it is inconsistent with an intention to pass the ownership of the cargo to the person on whose account it may have been purchased, even when the shipment has been made in the vessel of the drawee of the drafts against the^ cargo, has been repeatedly decided

Plaintiff can not recover because he violated his contract, calling for delivery in California. In Williston on Sales, we find the following:

“In order to make the rule (that delivery to the carrier constitutes a transfer of the property) applicable, however, the seller must have acted in conformity with the authority given him by the buyer. If, therefore, the goods which he sends are not those ordered, or even if there are too many, or too few, or they are sent at a materially different time, or by a different route or method of shipment, or misdirected, the property will not pass. Moreover, the seller must not only observe the express terms of the order or contract, but must also fulfill such obligations as the law 'imposes, irrespective of express bargain.”

In Woodbine Company vs. Goldnomer, 121 S. W. 449, the Supreme Court of Kentucky held:

“Where a buyer of clothing directed it to be delivered for the spring trade and be shipped over a certain railroad, a delivery by the seller to a different railroad for transportation did not constitute a delivery to the buyer, though the carrier named had no connection with the point of shipment, the. seller not having notified the buyer and given him an opportunity to select another carrier.”

In Lundy vs. Pfeifer, 162 La. 355, 110 So. 556, the Supreme Court of Louisiana held that an apparently inconsequential variance in the bill of lading constituted a breach of the shipper’s contract preventing recovery. In this case the contract obligated Lundy to ship to his own order, notify Pfeifer & Co. He shipped to his own order but instead of notifying Pfeifer, the bill of lading carried instructions to notify Lundy, the shipper. This slight departure from the agreement was held to be fatal * * * We quote from the opinion—

“In this case S. Pfeifer & Co. agreed to buy, and Aaron Lundy agreed to sell, approximately 60,000 pounds of red kidney beans; that the beans should be loaded in a car and shipped by Lundy some time during the months of September or October, 1920, and not later than October 31, 1920, plaintiff to take out a bill of lading for the shipment, to his own order, with instructions to notify Pfeifer & Co. This Lundy did not do. The record shows that the car was loaded on the Pacific coast on October 30, 1920. or within the time stipulated in the contract, but it does not appear when the car was actually moved. The record also shows that the bill of lading routing the car to New Orleans to the shipper’s order contained instructions to the carrier to notify A. L. Lundy. The district judge says:
“ ‘If he had taken out 100 cars in that manner on that day he would not have fulfilled his obligation under the contract.’
“On November 6, 1920, a bill of lading in accordance with the terms of the contract was obtained by Lundy, and in explanation of why he had thus acted after the term fixed in the contract for the shipment had expired; he says he was prompted to do so by a desire to keep his competitors in business in ignorance of the names and location of his patrons. This excuse cannot be accepted as justifying or ■palliating his violation of the unquestioned terms of the contract. The facts do not appear to be controverted, and therefore it is not necessary to review the testimony. Plaintiff violated the contract, and his belated attempt to rectify the error was made too late. As he bound himself, so shall he be bound.”

Por the reasons assigned the judgment apealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 11,345
    Orleans
    NOLAN v. MARTIN
    (March 12, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    I. Louisiana Digest — Elections by the People — Par. 19.
    Slight pencil dots or marks upon the back of ballots, or an irregular cross opposite the names of candidates, not calculated to serve as identification, are not sufficient to invalidate a ballot.
    Appeal from the Twenty-fifth Judicial District Court, Parish of Plaquemines. Hon. J.' C. Meraux, Judge.
    Action by Thomas Nolan against Emile Martin, Jr.
    There was judgment for plaintiff and defendant appealed.

      Judgment reversed.
    L. H. Perez, of New Orleans, attorney for plaintiff, appellee.
    O. S: Livaudais, of New Orleans, attorney for defendant appellant.
   CLAIBORNE, J.

This case presents a contest for the office of Police Juror for Ward Eight of the Parish of Plaquemines.

Plaintiff alleged that at the primary election held on January 17, 1928, he received a majority of the legal votes cast, and was elected Democratic nominee for the office of Police Juror for Ward Eight of the Parish of Plaquemines, but the Plaquemines Parish Democratic Committee promulgated the returns of said election and illegally declared that Emile Martin, Jr., had received a majority of the votes cast at said election and was the Democratic nominee for the office of Police Juror aforesaid; that said Committee declared that the plaintiff herein had received only fifteen votes while Martin had received twenty-one votes.

Plaintiff further alleged that there were several illegal votes counted for said Martin in the manner following:

1st. That Mr. and Mrs. Willie Falgout, and Oliver Rodriguez did not possess any legal poll taxes for the year 1926; that nevertheless they were allowed to vote and their votes were cast and counted for Martin, and should be declared null and deducted from the number of votes credited to him.

2nd. That Henry Treadway allowed Mrs. McCurdy to view his ballot and to assist him in marking it although he possessed the necessary educational qualifications to mark his own ballot; and that Treadway also voted for Martin and that his vote should also be deducted.

3rd. That seven more ballots bore clear marks of identification such as erasures, marks outside of the squares provided for the marking of ballots, and other particular marks of identification on ballots cast for Martin for the specific purpose of having said ballots identified by the parties easting said notes; that said ballots were counted for said Martin and should also be deducted; that therefore said thirteen illegal votes ^should be deducted from the total credited to him, leaving him with only eight legal votes thus giving plaintiff a majority of seven votes entitling him to the nomination.

Plaintiff prayed for judgment declaring him the nominee for Police Juror of the Eighth Ward of the Parish of Plaque-mines.

Defendant filed exceptions which he afterwards withdraw.

For answer defendant admitted that the Committee declared him to have received the majority of votes cast on the election of January 17, 1928, and as such to be the nominee for election to the office of Police Juror for Ward Eight of the Parish, and denied all the other allegations of the petition, and prayed that plaintiff’s suit be dismissed.

There was judgment in favor of plaintiff for the following reasons:

1st. That Mr. and Mrs. Willie Falgout voted without the poll tax of 1926 and that both votes were for Emile Martin, Jr., defendant, and both should be deducted.

2nd. That Treadway exhibited his ballot when he was making the same, in violation of Section 20 of Act 97 of 1922; and that Treadway was not affiliated with any party as required by Section 21 of Act 122 of 1921 and he voted for defendant and his vote should be deducted.

3rd. The seven ballots cast for defendant marked 1, 2, 3, 4, 8, 9, 10, are invalid and also ballot No. 7 cast for plaintiff, leaving plaintiff 14 votes for the following reasons:

Ballot 1 has a cross mark on the back of the ticket below the words “Secretary of State”; ballot 3 has what appears to be letter C in lead pencil through the cross mark opposite the name Kirby; the four ballots 2, 4, 8, 9, 10, have artistic marks made through the cross marks, such as decoration on the end of the crosses, additional lines through the cross marks, and in the case of plaintiff 4 what appears to be double checks opposite the names of Gravolet, all of which seven ballots should be deducted from defendant’s votes.

Plaintiff’s ballot 7 also has artistic crosses for which it should also be deducted from plaintiff (but we are not concerned with that ballot as plaintiff has neither appealed nor joined in defendant’s appeal).

The Judge continues:

Ten votes deducted from defendant’s 21 leaves him 11 votes. One vote deducted from plaintiff’s 15 loaves him 14, or a majority of four in favor of plaintiff.

This is evidently a clerical error, as 11 from 14 leaves 3, or a majority of 3 in favor of plaintiff, who was declared the nominee. /

From this judgment the defendant alone has appealed.

The view we have taken of the third ground of plaintiff’s petition renders it unnecessary for us to pass upon his objections to the votes of Mr. ■ and Mrs. Willie Falgout and Henry Q. Treadway.

We may, however, say that his views on the latter’s right to vote are not supported by the opinion in 156 La. 345:

Section 26 of Act 97 of 1922, p. 195, reads as follows:

“On receiving his ballot the voter shall forthwith and without leaving the enclosed space, retire to the place provided for the preparation of his ballot and designate his choice by making a cross with a lead pencil in the voting space to the right of and opposite the name of the candidate he .desires the support for the particular office for which they have offered.”

Nothing in the law indicates how that cross shall be made, whether the lines shall run diagonally, horizontally, or perpendicularly, nor of what style the cross shall be, plain or artistic, the St. Andrew’s cross, generally used by illiterate persons in making their mark, the Latin cross, or St. George’s cross. Crosses are made in various forms. As the law has not designated the kind of cross the voter shall make, it seems that he could use any one to his taste.

This Court is, however, controlled by the interpretation put upon the statutes .by our Supreme Court.

In the case of Vidrine vs. Eldred, 153 La. 784, 96 So. 566, the Court rejected 31 ballots and said:

“Some of these votes (ballots) were signed by the voter. Some of them contained other marks than the cross mark in the square opposite the names of candidates, as for instance, the names of candidates written, or additional cross marks or checks or lines outside of the square; some contained visible erasures.”

In Perz vs. Cognevich, 156 La. 331, 100 So. 44, the Court found a ballot “with two dots on it appearing immediately under names of two candidates,” another with, three dots on it, and a third with four or five pencil dots on it scarcely perceptible and such as “would hardly serve as marks of identification,” a fourth “with irregular cross marks in the voting squares opposite the names of the candidates,” “when the ballot is turned sideways the irregular cross marks resemble inverted fours * * * . The law requires the voter to indicate for which of the can-he desires to cast his ballot by making a cross mark in the square opposite the names of such candidates, but it does not require that the cross mark he a perfect one.”

This reasoning applies to all voters, but more especially to voters in cities in the humbler spheres of life, in occupations that cause calloused hands and stiffen and harden the fingers, and in the country to tillers of the soil, from whom perfection in the use of pencils and in tracing the lines ' of a cross cannot reasonably be expected. The right to vote and to have one’s vote counted • is the constitutional right of an American citizen which cannot be denied him by unreasonable legislative requirements or trivial judicial additions to the law.

Such laws should receive a liberal con- • struction.

We have examined with care the ten ballots condemned by the learned trial judge, and have read with attention his reasons for judgment and the brief of the appellee’s learned counsel. They fail to convince us. They are not in line with the decisions of the Supreme Court quoted above, but, if adopted, would rather defeat than execute the will of the voters.

The five members of the Democratic Committee returned the defendant as elected and we agree with them.

By reversing the judgment as to the seven votes for errors in making the crosses the admitted vote stands 17 in favor of the defendant and 14 only in favor of the plaintiff, giving a majority to the defendant.

It is therefore ordered that the judgment herein be reversed and set aside and plaintiff’s demand be rejected.


text:
    No. 10,026
    Orleans
    McWILLIAMS v. RITCHIE
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Evidence—Par. 256; Obligations — Par. 180.
    Where a written contract plainly ■ states the obligations assumed by the obligor of a contract, contemporaneous parol remarks can not be proven under an allegation of error.
    2. Louisiana Digest — Error and Mistake— Par. 8.
    Under R. C. C. 1841 the error which vitiates a contract must be of its nature.
    Appeal from the Civil District Court for the Parish of Orleans. Hon. Porter Parker, Judge.
    Action by Rozell McWilliams against Hugh Ritchie.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      F. Rivers Richardson, of New Orleans, attorney for plaintiff, appellee.
    E. M. Stafford, Daniel Wendling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit hy a real estate agent for a commission. From a judgment as prayed for defendant appeals.

It appears that plaintiff signed a contract appointing defendant his exclusive agent for six months for the sale of a certain piece of property owned by him.

The property was sold by plaintiff within the six months and under the plain terms of the contract the commission is due. But, defendant claims, that when he signed the contract and handed it to an employee of plaintiff, the plaintiff being engaged with another customer, it was understood that this employee, a young woman, would change the six months mentioned in the contract to sixty days. When evidence was tendered in support of this averment, it was excluded, upon objection of counsel that it contravened the parol evidence rule. This ruling of the court is said to be improper upon the ground that error is in effect charged, and, therefore, the principle invoked by defendant’s counsel, does not apply.

We believe that the ruling complained of was correct. Defendant’s objection to the contract is neither error of fact, nor of law. He admits that he signed the contract with the six months term in it. The error which vitiates a contract must affect the nature of the contract. R. C. C. 1841.

"Where the written contract plainly states the obligations assumed, the obligor can not set up error on these points caused by contemporaneous parol remarks. 37 La. Ann. 553, Presscott vs. Cooper; 22 La. Ann. 14, Watson vs. Planters Bank; 6th N. S. 496.” Merrick’s Code, third edition.

The judgment appealed from must be affirmed.


author: JONES, J.

text:
    No. 10,932
    Orleans
    CAMBAS v. BURNEY AND ARSOLA
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Pleading—Par. 112, 113.
    Proof must be restricted to allegations.
    2. Louisiana Digest — Pleading—Par. 112, 113; Obligations — Par. 176, 179, 180.
    Where the basis o fthe trial Court’s judgment is a verbal contract and there is no allegation in either original or supplemental petition as to any such oral agreement, the judgment will be changed into one of non-suit as timely objection was made to this evidence.
    Appeal from First City Court, Div. “A.” Hon. Wm. A. Bahns, Judge.
    Action by Arthur E. Cambas against W. H. Burney and B. Arsola.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. .F. Henriques, of New Orleans, at-torney for plaintiff, appellee.
    S. S. Goldman, of New Orleans, attorney for defendants, appellants.
   JONES, J.

Plaintiff sued the defendants in solido ■ for two hundred sixty-seven and 70-100 ($267.70) dollars, on October 25th, 1928, on the following allegations:

(1) That the C&nal Savings and Homestead Association for account of W. H. Burney had on October 5, 1922, made made a written contract with Bernard J. Arsola to erect a building in this city;

(2) That the contractor needed a surety and at the request of Burney petitioner signed a written indemnification agreement in favor of the Fidelity & Deposit Company of Maryland, who became surety for the contractor;

(3) That during the construction of the building the defendants without consulting or obtaining written consent of either surety company or plaintiff indemnitor, agreed to make and did make certain expensive changes in the building as contracted for, thereby increasing its cost;

(4) That upon completion of the building, the hills and liens thereon aggregated more than the contract price and the contractor and surety were required to pay two hundred seventeen and 70-100 ($217.70) dollars more than the final payment, for which sum they called upon plaintiff, who paid the amount and received from the surety a subrogation to its rights;

(5) That petitioner was also compelled to pay the lien of John Clade in the sum of fifty dollars ($50.00);

(6) That petitioner should recover from the defendants two hundred sixty-seven and 00-100 ($267.00) dollars, the amount which he was called upon to pay through the machinations and private arrangements and in violation of the building contract and bond between defendants, because the extra work done thereby inured to the benefit of defendants and to the prejudice of petitioner.

On November 2nd, defendant Burney filed three exceptions to this petition as follows, no cause or right of action, misjoinder of parties defendant, vagueness, and also a plea of prescription of one year. At the same time, as required by the rules of court, defendant filed his answer in which he denied the allegations of plaintiff and averred that there was only one change which increased the cost of the building, namely the substitution of bricks for concrete block, that this change, costing only twenty-five ($25.00), was made with the consent and approval of plaintiff. Respondent then set forth in detail certain other changes, made with his consent, which reduced the cost of the building several hundred dollars. Respondent then averred that plaintiff had control over all payments made by the Homestead Association; that plaintiff was negligent in supervising these payments and, therefore, legally estopped to claim restitution.

On January 11th, Exception of Vagueness was maintained and the others overruled.

On January 17th, a supplemental petition was filed averring that the lot on which the building was erected had been owned originally by W. H. Burney, and had been re-transferred to him after completion of building. This petition then set forth in great detail changes which Burney had caused to be made in the plans ■and specifications for the building at a cost of three hundred two and 90-100 ($302.90) dollars, all of which inured the benefit and advantage of Burney.

To this petition defendant, after filing exceptions of no cause or right of action, misjoinder and a plea of one year’s prescription, answered denying in detail the various changes and averring that the cost of the building had been lowered by all the changes considered together instead of increased.

There was judgment for plaintiff and defendant has appealéd.

In his oral argument and brief, defendant’s able attorney strongly insists on his exception of no cause of action and his .plea of prescription.

Under the recent decisions of Appellate Courts in this State amendments are favored where the Exception of “No Cause of Action” is based on insufficiency of allegation.

See Blake vs. Jefferson St. Charles Transfer Company, et als., No. 10,542 of the docket of this Court. Also James vs. City, 151 La. 480, 91 So. 846; Stone vs. Crescent Encampment Co., Orleans App. Digest 131; Southern Equipment Co. vs. Cardwell Stove, 154 La. 109, 97 So. 332.

It would, therefore, serve no useful purpose to remand the case here, as plaintiff could amend and set up the verbal agreement which he states in his brief constitutes the basis of this suit.

' As regards the plea of prescription of one year, we consider that the claim here for money due for changes in the building-contract is based on contract rather than tort. Such claims have apparently been so regarded in various decisions with reference to extra work, which have been handed down by the Louisiana Appellate Courts and for this reason the judgment of the lower court on the plea of prescription is correct.

In his oral agreement and in his brief in this Court, plaintiff declares that this suit is based on a verbal agreement on the part of Burney to make plaintiff whole by reason by his becoming indemnitor.

The above detailed analysis of the entire pleadings shows that there is no allegation in either petition that Burney made any verbal contract to reimburse plaintiff for his guarnatee of the surety. In fact, the only averment even remotely ■approaching that requirement is the statement that plaintiff signed the indemnification agreement at the request of Burney. Under the pleadings, therefore, evidence as to the verbal contract should have been excluded upon defendant’s timely objection.

Proof must correspond with the allegation.

Victorie vs. Moulon, Mart. (O. S.) 400.

Rodreguez vs. Moise, 2 Mart. (W.S.) 358.

Colsson vs. Consolidated Assn. Bank, 12 La. Ann. 105.

May vs. Ransom, 5 La. Ann. 424.

Dubuys vs. Farmer, 22 La. Ann. 478.

Levyson vs. Ward, 24 La. Ann. 158.

Jordon vs. Anderson, 29 La. Ann. 749.

Sauer vs. Union Oil Co., 43 La. Ann. 699, 9 So. 566.

Bell vs. Globe Lumber Co., 107 La. 725, 31 So. 994.

Woolin vs. United Irrigation Co., 128 La. 294, 54 So. 824.

The building contract offered in evidence is signed only by the Homestead Association, the contractor and by the surety company. The name of W. H. Burney does not appear thereon. The pertinent part of this contract in so far as the surety is concerned is found in the following words:

“AND HERE TO THESE PRESENTS INTERVENED:
“Fidelity Deposit Co. of Maryland, herein represented by Charles H. Black, its Agent and Attorney-in-fact, WHO DECLARED, in his said capacity, that he .has taken cognizance of the foregoing building contract between the CANAL .SAVINGS & HOMESTEAD ASSOCIATION, owner, and BERNARD J. ARSOLA, Contractor, and of the plans and specifications herein referred to, and hereby binds said Company, its successors and assigns as surety for said Contractors in the full sum of FIFTY-SIX HUNDRED AND TWENTY DOLLARS ($5620) in favor of said Association, and all sub-contractors, workmen, laborers, mechanics and furnishers of materials, jointly, as their interests may appear, and for the payment of all subcontractors, workmen, laborers, mechanics and furnishers of materials by said Contractors, as provided by Act 262 of the General Assembly of the State of Louisiana approved July 6, 1916, as amended, and all other laws on the same subject the Canal3)4,H the quick brown foxjum matter.
“It is hereby understood and agreed by and between the CANAL SAVINGS & HOMESTEAD ASSOCIATION, the Contractors and the Surety that any change made in the original contract, drawings or specifications, without the written consent of the CANAL SAVINGS & HOMESTEAD ASSOCIATION, shall not release the said Surety under this contract and bond. The said Surety also agrees and' understands that if the building herein contracted for has already been commenced, such commencement shall in no manner relieve .<■ from its responsibility under this contract.”

It will be noted that the petitioner avers that the changes were made by the contractor without the consent of the surety or plaintiff (the indemnitor) but makes no mention of the owner, the Homestead Association, although the above quoted pragraph shows that the surety was bound only for the faithful performance of the contract in accordance with the specifications and plans and for such changes as were made without the consent of the Homestead Association. The contract of indemnification is not in the record.'

If the evidence as to the verbal agreement be left out, plaintiff entirely failed to prove any legal claim against Burney, although the record tends to show that he has equitable rights.

After careful consideration of the entire record, we have concluded that the purposes of Justice will be best served by affirming the judgment as to Arsola, who has made no defense and takes no appeal and by entering a judgment as of non suit as to Burney.

It is, therefore, ordered, adjudged and decreed that the judgment as to Arsola be affirmed and there be judgment as of non suit as against defendant, W. H. Burney.


text:
    No. 10,936
    Orleans
    SONIAT v. CLESI
    (June 20, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing Refused.)
    (February 16, 1928. Decree Supreme Court on Writ of Certiorari and Review.)
    (See 115 So. 644.)

      (jSyllabus by the Court)
    ON MOTION TO DISMISS.
    1. Louisiana Digest — Courts—Par. 164; Appeal — Par. 510.
    In exercising the discretion conferred upon us by Act 19 of 1912, which permits the transfer of an appeal, erroneously taken to this court, to the Supreme Court, we are influenced by the merit of appellant’s appeal and, when the transfer is opposed, will not prolong the litigation unless there is enough plausibility in the contentions of appellant to warrant the transfer. There must be an end to litigation.

      Appeal from Civil 'District Court, Division “B.” Hon. Mark M. Boatner, Judge.
    Action by M. C. Soniat against N. J. Clesi.
    There was judgment for defendant and plaintiff appealed
    Appeal dismissed.
    Chas. J. Rivet, of New Orleans, attorney for plaintiff, appellee.
    H. W. Robinson, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The motion to dismiss is based upon the ground that the amount involved exceeds the appellate jurisdiction of this court.

The judgment, appealed from decreed the rescission of a contract to purchase real estate for the sum of $89,700.00 and awarded plaintiff judgment “in an amount equal to six per cent per annum of $89,-700.00 from June 20, 1926, until finality of the judgment resolving the above mentiqned contract.”

It is obvious that this court is without jurisdiction of this appeal.

We are urge.d by appellant to exercise the discretion given us under Act 19 of 1912 and transfer the case to the Supreme Court. In opposition, appellee contends that there should be an end to this litigation, because—

“1. The judgment appealed from resolves a contract with a consideration of $89,700.00 and further decrees the payment of 6% per annum interest on said sum from June 20, 1926.
“2. This judgment was rendered on the pleadings, so that no testimony was ever taken.
“3. A motion was filed in this court for an extension of the return date, on the ground that the stenographer of the District Court had not transcribed the testimony. (There was no testimony to transcribe.)
“4. Although counsel for appellant was served with a copy of the motion for dismissal on April 26, 1927, no request was made for a transfer and nothing was done to correct the alleged erroneous taking of the appeal to this court, until after submission of the matter, on the motion to dismiss.
“5. Counsel did not even appear on the day fixed for argument of the motion to dismiss. ,.
“6. The only excuse offered is the request that your Honors take ‘judicial notice of the fact that — attorney for appellant is, perhaps, one of the busiest attorneys practicing before the New Orleans bar—
“7. The appeal was perfected February 24, 1927. The latest return day if the appeal had been properly taken to the Supreme Court would have been April 26, 1927, the day on which the motion to dismiss was filed in this court.
“8. There would have been no reason for making the return day 60 days in a case where no testimony was to be transcribed.
“9. Had the appeal been lodged in the Supreme Court on April 26, 1927, the farthest return day, it could have been disposed of before the end of the present term.
“10. The appellant has made it impossible for the Supreme Court to pass on the matter until next term.”

Under the circumstances, we considered it our duty to examine the transcript with a view of determining whether there is sufficient merit in the position taken by defendant and appellant to justify the imposition upon plaintiff and appellee of further delay and protracted litigation.

We rise from our consideration of the record with the conviction that there is not enough plausibility in the defense to prolong the litigation. It is important that the law’s delays be minimized. See the concluding paragraph of our opinion in M. L. & T. R. R. Co. vs. Godchaux Sugars, Inc., 3 La. App. 236.

The appeal herein taken will be dismissed.


text:
    No. 10,163
    Orleans
    BARRANGER v. MIRE
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Partnership—Par. 24, 25.
    An agreement to share profits creates a presumption o.f partnership, which may he overcome by proof of contrary intention of the parties.
    2. Louisiana Digest — Partnership—Par. 1, 4; Loan — Par. 1.
    An agreement whereby A advances to B $1000.00 which is to he returned to A in cash in one year together with one-fifteenth of the profits of a farming venture by B, without stipulating that A is to share in the losses of the venture is, not a partnership contract but a loan.
    Appeal from Civil District Court, Division “B.” Hon. Mark M. Boatner, Judge.
    Action by Alvin H. Barranger against Richard E. Mire.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dart, Kernan & Dart, of New Orleans, attorneys for plaintiff, appellee.
    Terriberry, Rice & Young, A. R. Martinez, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues on the following written instrument:

“New Orleans, 3-22-20. Received from A. H. Barranger the sum of one thousand dollars in consideration of which I, the undersigned, have given him a one-fifteenth (1/15) in all crops raised by me on Orange Grove Plantation. This includes cane, rice, corn and potatoes. Said one-fifteenth of profits (1/15) to be paid in cash at expiration of this year or when all crops have been gathered. In addition to one-fifteenth of profits, he is to be refunded the amount of his investment in cash. Richard E. Mire.”

An exception of no cause of action was filed based upon the contention that the writing sued on plainly evidenced a partnership, -for the liquidation of which plaintiff might sue, but not for a specific sum as against his partner. This exception was maintained, but on appeal to this court the' judgment was reversed and cause remanded. See No. 8504 of the docket.

In our former opinion we held that an agreement to share profits created a presumption of partnership but that the presumption might be repelled by special circumstances obtaining. See authorities there cited.

The case is now before us on the merits, defendant having appealed from a judgment awarding plaintiff $1000.00.

It appears that plaintiff and defendant were both employed in the City of New Orleans by the same firm and that their duties required them to take frequent trips about the surrounding country, sometimes together. They became intimate and Mire told Barranger of his successful venture in rice and sugar planting and of his large profits. Barranger desired to share in the next year’s profit, which seemed almost certain because of the extraordinary prices prevailing in the sugar and the rice markets. Mire says that Barranger begged to be “let in” on the transaction and Bar-ranger that Mire sought him out and borrowed $1000.00. Be that as it may, the money was given to Mire and used in the cultivation of the crop which Mire alone managed and with disastrous financial results. The high prices of the previous year suddenly became very low, weather conditions were unfavorable and with a short crop, and shorter price, Mire lost all of his profits of the previous year, all his capital and wound uip heavily in debt.

We believe the character of plaintiff’s investment, whether a loan or partnership, to be doubtful.

The determining factors with us are first, the finding of the trial judge, upon which we place more than the customary dependence because the character of plaintiff’s relation to defendant’s farming venture turns upon the credit to be given the conflicting testimony of plaintiff and defendant.

Second, we find no satisfactory explanation of the clause in the receipt, which was written by defendant, which guaranteed the return of plaintiff’s $1000.00 consistent with the view that' the transaction was a partnership. Defendant says that it was put in the receipt in response to plaintiff’s desire to liquidate his interest in the partnership, in money, at the expiration of the year. In other words, defendant claims that his farming implements, mules, etc., were worth $14,000.00, and in allowing plaintiff to invest $1000.00 the partnership capital became $15,000.00 and plaintiff’s share became one-fifteenth (1/15). But instead of requiring a sale of the partnership assets in order to liquidate plaintiff’s interest, he was to be allowed his money back.

The difficulty with this explanation is, that there is nothing in the receipt, prepared by defendant, which makes the slightest reference to it, but instead “he is to be refunded the amount of his investment in cash” and this “in addition to one-fifteenth of profits.”

If we are mistaken in our conclusion and defendant held to a responsibility he [ did not contemplate, his dilemma, we can not refrain from observing, is entirely due to his failure to consult his very able counsel before, instead of after, attempting to reduce to writing his oral agreement with plaintiff. To paraphrase the familiar adage “an ounce of legal prevention is worth a pound of legal cure.”

For the reasons assigned the judgment appealed from is affirmed.


author: LECHE, J.

text:
    No__
    First Circuit
    BALDWIN PIANO COMPANY, INC., v. THOMPSON, ET ALS.
    (June 12, 1928. Opinion and Decree.)

      0Syllabus by the Ectitor)

    1. Louisiana Digest — Sales—Par. 324, 333; Conflict of Laws — Par. 4.
    A conditional sale of movable property in Mississippi is governed by the law of Mississippi, conveys no title to the purchaser, and where he brings it into Louisiana his sale is null because he had no title to the property.
    Appeal from the Parish of Washington. Hon Prentiss B. Carter, Judge.
    Action by Baldwin Piano Company, Inc., against S. R. Thompson, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Brock and Carter, of Pranklinton, and V. M. Roby, of Pranklinton, attorneys for plaintiff, appellant.

      Ott and Johnson, of Franklinton, attorneys for defendant, appellee.
   LECHE, J.

The issue in this case is the effect to be given to a conditional sale made in the State of Mississippi, of movable property which is subsequently brought into the State of Louisiana, and which is here sold by the apparent owner and possessor, to a citizen of Louisiana, who buys the property in good faith and for a valuable consideration. Such conditional sale is one by which property is sold and delivered to another, the seller, however, retaining title until the whole of the purchase 'price has been paid by the buyer.

It is conceded that a contract of this kind is lawful in the State of Mississippi, but it is equally undeniable that such a contract is impossible under the laws of Louisiana. See Barber Asphalt vs. St. Louis Cypress, 121 La. 153, 46 So. 193. It was even held that a vendor under a conditional sale, who retakes forcible possession, is a trespasser. Grumper vs. Philip Werlein, 149 La. 840, 90 So. 275.

The sole question then to be decided is whether such a contract, when entered into in the State of Mississippi may be enforced in the State of Louisiana. It would serve no useful purpose to argue the merits 'of that question, as it has been decided adversely to the contention of defendant in the case of Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138.

For these reasons the judgment appealed from is avoided and reversed and it is now ordered that plaintiff be recognized as the owner of the piano sequestered in this case, and entitled to the possession thereof, that the writ of sequestration herein issued be maintained, and that the defendant pay all costs.


author: WEBB, J.

text:
    No. 3380
    Second Circuit
    HARRIS ET ALS. v. GEO. W. SIGNOR TIE CO., LTD., ET ALS.
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — injunction—Par. 55; Mandamus — Par. 22, 32.
    It being under Act 29 of 1924 within the discretion of the trial judge to grant' or refuse a suspensive ¡appeal from his ruling on the injunction proceeding it is necessary that facts be developed on the trial of the rule and in the application for writs of mandamus, certiorari and prohibition to show clearly why the trial court erred in refusing to grant a preliminary injunction.
    Action by G. H. Harris et als. against Geo. W. Signor Tie Co., Ltd., et als.
    On application for writs of mandamus, certiorari and prohibition.
    Application refused.
    W. M. Pollock, of Mansfield, attorney for relators.
   WEBB, J.

In this application relators allege that .they filed suit against defendants and obtained a restraining order prohibiting defendants from cutting timber, but that on hearing of a rule issued to determine whether or not the order should be perpetuated and a temporary injunction issued, the restraining order was recalled and the temporary injunction refused, and that they had moved for a suspensive appeal, which was refused, and they now seek to have this court order a suspensive appeal to be granted, and to this end pray for the issuance of preliminary writs of mandamus, prohibition and certiorari.

The right to the writs is urged upon the theory that the action sought to be restrained will cause an irreparable injury, and it is apparently urged that the trial court should have continued the restraining order in effect until the trial on the merits, by granting a suspensive appeal from the order recalling the restraining order, with such other orders as necessary, and that the trial court having refused to do so, this court should order the suspensive appeal to he granted, and if not, it should order the issuance of a temporary injunction under its supervisory jurisdiction.

Prior to Act No. 29 of 1924, courts of original jurisdiction were authorized to issue writs of injunction on the face of the petition without notice, of which power they were divested by the statute referred' to, giving them, however, power to issue a restraining order prior to notice, where it was made to appear from the pleadings that immediate and irreparable injury would result before notice could be given, the validity or right to such restraining order to be tested on a preliminary hearing under a rule nisi.

The course thus provided by the statute appears to have been followed in the present instance, in which, on the trial of the rule nisi to test the right of the plaintiffs, relators here, to a preliminary injunction, the court recalled the restraining order, and the first question presented is whether or not the plaintiffs had the right to an appeal and to maintain the restraining order in effect pending the appeal.

In Barrow vs. Caffery, 161 La. 778, 109 So. 488, it was said:

“Act No. 29 of 1924 * * * had for its object the regulation of procedure and practice in the courts and the power of the courts to issue temporary restraining orders and preliminary writs of injunction. It is provided in said act that no writ of injunction shall be issued without notice to the opposite party and an opportunity given for hearing. That pending the hearing for a preliminary injunction the court may in its discretion issue a temporary restraining order against the defendant upon such bond as the court may fix.
“That upon a hearing where the restraining order is granted, refused, dissolved, or continued, no appeal shall be allowed therefrom.”

And in Martel vs. Rovira, 164 La. 1099, 115 So. 283, it was said:

“It is very clear that under the act of 1924 no right of appeal exists from a mere order dissolving a restraining order, etc.”

See also Magendie vs. Constable, 4 La. App. 718.

Under the ruling in the cases cited, we are of the opinion relators did not have the right to an appeal from the interlocutory decree recalling the restraining order; and the sole remaining question is whether or not the court was in error in refusing to grant the preliminary injunction.

The statute has not changed the'law as to the conditions under which one should be granted an injunction to conserve one’s rights pending trial, but the right to a preliminary injunction is in all cases made dependent on the facts developed or showing made on the trial of the rule nisi, and conceding that in all cases where the right to cut timber from the lands of another is at issue, the owner of land from which timber is being cut should be permitted to restrain such action pending the trial, in that the cutting of timber from lands may constitute an irreparable injury within the meaning of the law (De La Croix vs. Villere, 11 La. Ann. 39; State ex rel. Hake vs. Judge, 52 La. Ann. 103, 26 So. 769), it is necessary such fact be developed on trial of tho rule, and in an application for writs to correct an alleged error of the court in refusing to grant a preliminary injunction, it is necessary that the facts developed on the trial of the rule should be set forth, and should be such as to clearly show that an injunction should have issued (Manion & Co. vs. Board, 119 La. 879, 44 So. 515; Communy vs. O’Sullivan, 127 La. 179, 53 So. 484).

In the p’resent application relators do not set forth the facts developed on the trial, and under such circumstances the presumption is that the facts developed were such as not to warrant the issuance of a preliminary writ of injunction and that the court properly recalled the restraining order, and therefore the application for preliminary writs of certiorari, prohibition and mandamus is refused.


text:
    No. 9782
    Orleans
    HERRIGES v. DOLORAS CIGAR COMPANY PHOENIX BOX MFG. CO., Intervenor
    (November 14, 1927. Opinion and Decree.)
    (December 12, 1927. Decree on Rehearing.)
    (January 20, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      {Syllabus by the Cotirt.)

    1. Louisiana Digest — Appeal—Par. 625; Intervention — Par. 12.
    As intervenor has proved his claim for goods sold and delivered, he should have judgment against Receiver for amount claimed.
    2. Louisiana Digest — Appeal—Par. 625; Intervention — Par. 12.
    As intervenor has failed to prove his allegations as to illegality of incorporation and subsequent acts of defendant, his suit is dismissed as to these averments.
    Appeal from Civil District Court, Div. “F.” Hon. Percy Saint, Judge.
    Action by Mrs. Margaret Herriges, wife of Emilio L. Suarez against Doloras Cigar Company Inc. Phoenix Box Mfg. Co., Intervenor.
    There was judgment for plaintiff and intervenor and defendant appealed.
    Judgment amended and affirmed.
    Wm. McL. Fayssoux, of New Orleans, attorney for plaintiff, appellee.
    M. T. Woodward, Theo Cotonio, of New Orleans, attorneys for defendant, appellant.
   OPINION

JONES, J.

In this case plaintiff, on April 7, 1923, sued defendant, a Louisiana corporation, alleging it was indebted to her in the sum of One hundred twenty-one and 50-100 ($121.50) Dollars for money loaned with legal interest from October 15, 1922, until paid. She attached to and made part of her petition a resolution of the board of directors acknowledging inability of the corporation to pay its indebtedness and a statement showing the assets and liabilities of said corporation. The Court, upon said showing, ordered the corporation to show cause why a receiver should not be appointed.

On the same day defendant appeared' through its President in court and filed an answer admitting the facts set forth in the petition and in the resolution which was attached to and made part of the petition of plaintiff in these proceedings.

Thereupon, the Court, on April 7, 1923, appointed Madison T. Woodward, receiver, and required . a bond of Five Thousand ($5,000.00) Dollars.

On April 12, 1923, an order was signed by the Court directing an inventory to be taken.

On April 25, 1923, Madison T. Woodward, having complied with the requirements of law as receiver, petitioned the Court to adjust certain claims with the creditors of said corporation, which petition being unopposed after having remained placed on the order book for the required length of time was duly approved by the Judge.

On April 26, 1923, the receiver had homologated the inventory taken in said proceedings, which showed the assets, appraised at Fifteen hundred twenty-three and 20-100 ($1523.20) Dollars.

On May 9, 1923, the Phoenix Box Manufacturing Company, Ltd., filed a petition of intervention, and third opposition, alleging that the Doloras Cigar Company, Incorporated, and Frank D. Franklin, M. Truman Woodward and Emilie L. Suarez, individually and solidarily, were indebted to it in the sum of One hundred eighty-three and 45-100 ($183.45) Dollars as a balance due for boxes sold and delivered to defendant.

This petition also contained the following allegations:

(1) Capital stock of corporation was never fully subscribed or paid for.

(2) Corporation began business before fifty per cent of capital stock subscribed had been actually paid for and contracted debts for more than twice amount of paid up capital.

(3)That Mrs. Suarez was not a creditor and her appointment as receiver was null, because corporation had not been legally cited and was never legally incorporated.

Intervenor then prayed for citation on the corporation, on Franklin, on Suarez and on Woodward, individually and as receiver; that the judgment appointing receiver be set aside and there be judgment in her favor and against the corporation and all three members thereof severally and in solido.

To this petition an exception of no cause of action was filed and overruled on July 25, 1923.

On July 31, 1923, receiver filed his quarterly account showing net profit for three months ending July 16, 1923, amounting to Eight hundred eight and 11-100 ($808.11) Dollars.

On October 13, 1923, the corporation filed an answer admitting the claim of intervenor, but denying the other allegations. On the same day each of the incorporators filed answers averring that corporation was legally incorporated and receiver duly appointed, because Mrs. Suarez was a bona fide creditor in the amount claimed in her original petition.

On November 12, 1923, the receiver prayed for permission to sell the assets as business was not proving profitable and the petition being unopposed after having been upon the order book ten days, the Court, on November 27, ordered the assets sold at public auction.

On February 18, 1924, receiver petitioned this Court for permission to sell assets at private sale for One hundred fifty ($150.00) Dollars, as no bid had been made at public auction. Again after placing petition on order book, waiting ten days for opposition in vain, the Court ordered assets sold at private sale for One hundred fifty ($150.00) Dollars and' sale was made accordingly.

On November 24, 1924, receiver filed his final account showing the following:

Cash balance on hand ----------------- $229.38
Privileged claims _____________________________ 353.90
Old accounts receivable ------------------- 378.30
Total ordinary claims _____________________ 6812.42

Among the ordinary creditors are listed the Phoenix Box Co. for One hundred eighty-three and 45-100 ($183.45) Dollars and Mrs. Suarez for One hundred twenty-one and 50-100 ($121.50) Dollars.

To this account two oppositions were filed, one by the City for licenses ' and taxes and one by intervenor herein. On January 25, 1925, account was approved so far as not opposed, but no distribution of funds has been made.

Meanwhile, this intervention was tried and on July 9, 1924, there was judgment dismissing the petition and intervenor has appealed.

Intervenor has never insisted on his objection to the citations and to practice followed in appointing the receiver, for the record shows these objections have no merit whatever.

The contention that Mrs. Suarez was not a creditor is refuted by the fact that the corporation in its answer admits the indebtedness.

In this Court earnest contention. is made that incorporators are individually liable because the so-called corporation failed to comply with Act 267 of 1914, the general corporation statute in following particulars:

(1) It did not record in the Mortgage Office a list of the assets delivered to the new company by the old partnership for which seventy shares of stock was issued in violation of Section 3.

(2) Fifty per cent of stock subscribed was not paid in before it began business and it incurred liabilities greater than the amount paid in violation of Paragraph C, Section 2.

It is further contended that subscribers are personally liable to unpaid creditors' in an ■ amount equal to unpaid balance on the stock under Section 12 and these three directors are severally liable for failing to make proper reports to Secretary of State in further violation of Paragraph C, Section 2.

The record shows the following facts:

Doloras Cigar Company was incorporated on January 19, 1922, by act before W. M. Gurley, notary public, and charter was recorded in Mortgage Office on January 30, 1922. Capital stock was fixed at Ten Thousand ($10,000.00) Dollars, represented by One hundred shares of One hundred ($100.00) Dollars par value.

Frank D. Franklin signed for thirty-three shares.

W. T. Woodward signed for ten shares. Emile L. Suarez signed for thirty-two shares.

Woodward paid Five hundred ($500.00) Dollars cash and got his friend, Boswell, to pay Five hundred ($500.00) Dollars for him.

These three subscribers were declared the directors and officers, Woodward being president; Suarez, vice-president, and Franklin, secretary.

On February 1, 1922, the directors voted that the corporation purchase from Franklin and Suarez for seven thousand ($7,000.00) dollars, all the assets of the partnership, formerly known as the Doloras Cigar Manufacturing Co., “said assets including all current, deferred and fixed assets, stock in trade, printing, fixtures, tobacco boxes, labels, copyrights, good will, accounts receivable and in fact all property and assets of every nature whatsoever.”

All these assets were transferred to new corporations in return for the sixty-five shares of stock subscribed for by Franklin and Suarez. Notary and Attorney reported transfer was legally made, but Receiver Woodward, the only witness on this subject, did not know personally whether an itemized appraisement was recorded in Mortgage Office or not.

On December 6, 1922, Franklin and Suarez each gave Woodward enough of their stock to make each subscriber have twenty-five shares, in consideration for his endorsement and cash loan to company; old certificates were then cancelled and each of the three got a new certificate for twenty-five shares and Boswell a certificate for five shares, making a total subscription of Eight thousand ($8,000.00) Dollars; appraisement of old partnership property when transferred to corporation was made by Franklin and Suarez; liabilities of company at time of receivership April 7, 1923, amounted to Seven thousand one hundred sixty-three and 72-100 ($7,-163.72) Dollars, most of which were incurred in the summer of 1923; old partnership was bought as a going concern for Sixty-five hundred ($6500.00) Dollars in stock. Claim of intervenor was proved.

The above digest shows that intervenor has failed to prove all of his other allegations. However, he attempts to supplement his proof by deductions from the values as found in the statement of the auditor and in’ the inventory as compared with the value as shown at receiver’s sale.

The statement of the auditor filed with resolution of board asking for a receiver shows the following:

ASSETS
Accounts receivable ____________________________ $881.85
Merchandise __________________________________ 5333.22
Office fixtures & factory equipment 1179.05
Copyrights and patents, exclusive of good will ___________________________________________ 2500.00
9894.12
Total current liabilities __________________ 7030.22
Accrued liabilities ________________________________ 130.50
$7150.72

The total appraisement in the inventory was One thousand five hundred twenty-three ($1,523.00) Dollars and the selling price One hundred fifty ($150.00) Dollars.

' Although the assets brought practically nothing when sold at private sale after the business had failed and the company had ceased to do business, this by no means justifies the presumption that these assets had no value to a going concern at time of transfer. In the very nature of the case they had no value except to persons engaged in cigar manufacturing and if no buyers in that line were interested, they would be practically worthless to the general public.

Although all the books of the company were in court and the Receiver testified fully as to all the past transactions of the company, intervenor entirely failed to prove that the appraisement of property given for stock was not made and recorded in the Mortgage Office and that proper reports were not made to Secretary of State.

Section 17 of Act 267 of 1914 reads as follows:

“Be it further enacted, etc., That if stock be issued for property in violation of the provisions of this act, or if any dividend or other reduction of the assets be made .other than from net profits, or if a reduction of capital be made under the guise of a loan to stockholders, or if any report of statement or public notice shall not be made as required by law, the officers shall be jointly and severally liable with the directors, as provided above; provided, however, that if the knowledge required for the making of any statement or report prescribed by this section, be not practically obtainable, the officer or director making it shall be liable as herein set out.”

It will be noted that the directors are jointly and severally liable to the creditors for any loss or damage “arising therefrom.’’

In this suit even if we admit the unproved allegations of intervenor’s petition as to failure to record appraisement of property sold to corporation within legal delays and failure to make reports to Secretary of State in January and July as to actual stock subscribed, there is absolutely no proof that intervenor’s loss was occasioned by violation of these requirements. On the contrary intervenor testifies that he had done business satisfactorily for several years with the old partnership and that he continued to do business after he heard that the partnership had been changed into a corporation without making any investigation whatever, and there is every indication that these charges are only second thoughts after the failure of the business, and that the failure to record appraisement and make reports to Secretary of State had nothing to do with his loss.

Act XIII, Section 2, La. Constitution 1921, prohibits corporations from issuing stock except for labor done, or money or property actually received under penalty of forfeiture of charter for issue of fictitious stock and the Supreme Court held in the case of Weber vs. Christ, 130 La. 450, 58 So. 144, that the property transferred must equal in value the shares subscribed. But here there is no proof that the property of the old partnership at the time of the transfer in February, 1922, was not worth the value of the stock given in exchange, because there is no proof of actual value of the stock given in exchange, because there is no proof of actual value of property exchanged. Furthermore, the assets certainly had some value, the stock was not fictitious and the subscriber was liable only for the difference in value between the property transferred and the stock subscribed.

As plaintiff has entirely failed to prove his allegations as to • illegal acts of corporation, his suit must be dismissed on these points, but he has proved his claim and is entitled to judgment against Receiver.

It is ordered that there be judgment in favor of Phoenix Box Manufacturing Co., Intervenor, and against Doloras Cigar Co., through its Receiver, M. T. Woodward, in the sum of One hundred eighty-three and 95-100 ($183.95) Dollars, with legal interest from May 9, 1923.

It is further ordered, adjudged and decreed that the petition of Intervenor be dismissed in all other respects.

ON PETITION FOR REHEARING

On application for rehearing, it is ordered that costs of this Court be paid by the Receiver of 'the corporation out of the funds on hand as a privileged debt.

See Art. 3195, Revised Civil Code.


text:
    No. 11,091
    Orleans
    HAUSER v. BERTRAND LADD AND BURNETT
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — landlord and Tenant (No paragraph); Error and Mistake— Par. 2, 8, 17; Words and Phrases— Par. —.
    Where plaintiff rented a cottage at Bay St. Louis for the summer season and paid a rental of $200.00 in advance, upon the faith of defendants’ representations that it was a “beach cottage” and when seen by plaintiff for the first time, it proved to be one hundred and fifty feet from the beach, and, in the rear of two other houses, he will be permitted to recover the rental which he ©aid in advance, upon the ground of error and misrepresentation. The fact that the beach can be seen from some part of the house and the house cgu be reached by a driveway from the beach, does not justify its description as a “beach cottage.”
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Dr. George H. Hauser against Bertrand Ladd and J. D. Burnett.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    J. Grasser and Ulie Burke, of New Orleans, attorneys for plaintiff, appellee.
    Jesse C. McGee, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The defendants leased a cottage at Bay St. Louis for the summer of 1926. For some reason they concluded to sub-lease the property, and, for the purpose of attracting a tenant, caused th_e following advertisement to appear in the Times-Picayune, a morning newspaper published in the City of New Orleaus:

“For Rent — Bay St. Louis beach small cottage, 3 bedrooms, furnished, June 15th for Hhe season $200.00, phone Walnut 5615-J.”

Mrs. Hauser, plaintiff’s wife, called Walnut 5615-J and was informed by Mrs. Burnett, the wife of one of the defendants, that the property fronted the beach and was the fourth house from the corner of St. Charles Street. Mrs. Hauser was familiar with the location and after asking a few questions about bedrooms and other conveniences agreed to rent the house and invited defendants to call at her husband’s office and get a check for $200.00, the rent asked for the house in the advertisement. The check was sent for and the property subleased. Shortly thereafter, Mrs. Hauser went to Bay St. Louis and discovered that the house she had rented was in the rear of two other houses and was reached by a driveway between the two houses. In her own words, the house was in a back yard. Mrs. Hauser, who acted for her husband throughout, thereupon announced that she would not have the place as she was not accustomed to living in anyone’s back yard, and demanded her money back. Failing to get the money this suit was instituted in which fraud and misrepresentation is charged with respect to the location of the rented house in Bay St. Louis.

Defendants acknowledge their representation, that the cottage was on the beach, and insist that it may be fairly said to be a “beach cottage” as advertised. They base this claim upon the fact that the side gallery affords an unobstructed view of the beach by reason of its fronting on the roadway between the two houses, which are in front of the house leased to plaintiff and nearer to the beach.

They also assert that they were induced to rent the place themselves under exactly similar representations by the owner, in fact, the advertisement which attracted plaintiff is, they say, a copy of one by means of which the owner rented the property to them.

Of course, we are not concerned with the circumstances under which defendants rented the cottage, but only with the sublease by defendants.

We are convinced that plaintiff’s wife wanted a cottage fronting the beach and no other and we are also convinced that she was misled by the advertisement, and by the assurances given her by defendants’ representatives. To say that a house which is located 150 feet from the beach, and in the rear of two other houses is a “beach cottage” because there is a small opening through which the beach can be seen, and a driveway by means of which it can be reached, is to be guilty of a gross exaggeration, and inconsistent with our idea of the frankness which should characterize a transaction consummated upon the faith of representations of one of the (parties alone. Or as it is tersely put “sight unseen.”

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 11,219
    Orleans
    GAST AND LEVY v. LOEB
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Marriage—Par. 172, 173, 182.
    As a general rule the husband alone is liable for necessaries bought- by his wife for herself and their children.
    2. Louisiana Digest — Marriage—Par. 77, 182.
    The liability of the wife for such necessaries is exceptional. He who would recover against her must establish the exception qlearly under some provision of the law.
    3. Louisiana Digest — Marriage—Par. 77, 172.
    Act 132 of 1926 does not purport to amend Article C. C. 2403 nor to change the law and jurisprudence quoted above.
    4. Louisiana Digest — Marriage—Par. 84; Suretyship — Par. 4.
    But it (Act 132 of 1926) does authorize the wife “to hind and obligate herself personally or as surety for her husband or any other person.”
    5. Louisiana Digest — Suretyship—Par. 3, 4.
    Two persons may be bound as principals for the same debt.
    Appeal from the First City Court. Hon. Wm. Alexander Bahns, Judge.
    Action by Gast and Levy against Mrs. Elka F. Loeb.

      There was judgment for defendant and plaintiffs appealed.
    Judgment reversed.
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiffs, appellants.
    Leon S. Cahn, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of goods sold to defendant.

The plaintiffs alleged that between June 1st and August 28th, 1927, they sold to defendant a lot of goods amounting to $118.30 upon which defendant has paid nothing, and for which they claim judgment.

The defendant filed a general denial and further alleged that the goods “were purchased of plaintiffs not for defendant, but by and for the account of the community lately existing between plaintiffs (defend.ant) and her late husband Ernest M. Loeb; that none of the said goods and merchandise were for the benefit of defendant, but were for the use and benefit of her said late husband, Ernest M. Loeb, and the minor children of the said community; that the said goods and merchandise consisted of necessary wearing apparel for her said late husband and for the said minor children; and the purchase thereof was authorized and approved by her said late husband as head and master of the said community;” that her said husband died on August 24, 1927, and that his succession has been opened, and that the defendant is not liable for the price of the articles claimed herein except for $2.25 bought after the death of her husband.

There was judgment for plaintiffs for $2.25 and they have appealed.

The articles, according to the testimony and the bill annexed to the petition, were sold to the defendant herself and consisted of socks, handkerchiefs, robes, pajamas, scarf, hats, ribbons, garters and collars, some were sold from June 6th to July 6th, inclusive. They amounted to $64.50 and other from July 8th to July 30th and they amounted to $51.55 and others on August 25th and 27th after the death of defendant’s husband, amounting to $2.25.

For those items, amounting to $64.50, the defendant is not liable. They were necessaries ties for the defendant and her two minor children for which the husband alone, as head of the community, was liable. C. C. 2403; Voiers vs. Atkins Bros., 113 La. 327, 36 So. 974; Peet, Yale & Bowling vs. McDaniel & Co., 27 La. Ann. 455; Morgan vs. Richmond, 28 La. Ann. 838.

The liability of the wife is exceptional. He who would recover against her must establish — the exception clearly under some provision of the law. Scanlan & Co. vs. Warwick & Wife, 10 La. Ann. 30; Labit & Charpentier vs. Harman, 13 La. Ann. 593; Powell & Hopkins vs. Hopkins, 13 La. Ann. 626.

There is no allegation that the wife owned any paraphernal property. C. C. 2389; Rowley vs. Rowley, 19 La. Ann. 558; Hill & Co. vs. Tippett & Wife, 10 La. Ann. 554; Labit & Charpentier vs. Harman, 13 La. Ann. 593; Doyal vs. Doyal, 23 La. Ann. 97; Hardin vs. Wolf & Cerf, 29 La. Ann. 335.

Nor that she was separate in property by marriage contract. C. C. 2395; Rowley vs. Rowley, 19 La. Ann. 558, 579; Robson & Allen vs. Shelton & Husband, 14 La. Ann. 712; Arrowsmith vs. Rappelge, 24 La. Ann. 327; Crochet vs. Dugas, 126 La. 290, 52 So. 495; Hill & Co. vs. Tippett & Wife, 10 La. Ann. 554; Trudeau vs. Rau, 23 La. Ann. 197; Daney, Wife vs. Martin, Cobb Co., 23 La. 325; Choppin vs. Harman, 24 La. Ann. 327.

Nor that she was separate in property by judgment. C. C. 2435; St. Louis University vs. Prudhomme & Wife, 21 La. Ann. 525.

Therefore defendant is not liable for the above articles purchased by her because Article C. C. 2403 makes the community alone, represented by the husband, liable for all debts contracted during the community. Fabacher vs. Rouprich, 2 La. App. 138.

But plaintiff relies upon Act 132 of 1926, page 207, which reads as follows:

“Sec. I. That a married woman, whether a resident of this state or not shall be competent to contract debts, purchase, sell and mortgage, and to bind and obligate herself personally and with reference to her separate and paraphernal property; to appear in court and to sue and be sued; to sell, alienate, or otherwise dispose, and to mortgage and pledge or "otherwise encumber, her separate and paraphernal property for the benefit of herself, her husband or any other person, and to bind and obligate herself personally or as surety for her husband or any other person.
“Sec. II. That such married women shall exercise the rights granted by Section I hereof, without the necessity of obtaining the authority of her husband or the judge.
“Sec. III. That the rights hereby granted shall not apply to married women under the age of eighteen years or to married women who are interdicted.
“Sec. IV. That nothing herein contained shall be deemed or construed to affect in any way the statutes of this state establishing and regulating the matrimonial community of acquets and gains, and prescribing what shall be deemed separate property of the spouses.”

The title of the Act reads:

“To define the capacity of and to authorize married women to enter into contracts relating to their separate and paraphernal property and with reference to suits by and against them, and to repeal all laws or parts of laws in conflict therewith.”

The title of the Act does not purport to amend Article C. C. 2403, or to change the law in relation to the immunity of the wife for contracts made by her during the community, nor does the body of the Act repeal such immunity. It only authorizes her to make contracts “with reference to her separate and paraphernal property.” But it does authorize the married woman “to bind and obligate herself personally or as surety for her husband or any other person.”

Under the last clause of this Act we are of the opinion that the defendant is liable for all purchases made from the plaintiffs on and after July 8, 1926, up to and including July 30, 1926. In relation to these the testimony of Charles Levy, the plaintiff, is as follows:

“Q. State what happened on July 8th?
“A. On July 8th, she owed us $64.50. She came into the store with her daughter, Mary, and said she wanted to buy a few things for her personal use, and she said: ‘Please let Mary have this merchandise. I am going to pay you a part of the .amount I now owe you if you will let her have this additional merchandise,’ which we agreed to do on her promise to pay the amount. The merchandise was to be charged to Mrs. Loeb as she told us to do.
“Q. She asked you to extend credit only to herself?
“A. Yes.
“Q. I understood you to say the account has always been carried in Mrs. Loeb’s name?
“A. Yes.
'“Q. She did not tell you if Mary Loeb did not pay she would?
“A. No.
“Q. She told you to give these articles to Mary Loeb and she would pay you?
“A. Yes.
“Q. Mary Loeb was a minor?
“A. Yes.
“Q. And Mrs. Loeb was her mother?
“A. Yes.”

The defendant, Mrs. Loeb, did not testify at all.

The articles purchased from July 8th to 30th consist of robes, pajamas, collars, hats, and belts, and amount to $51.55.

The defendant contends, however, that it was error to admit parol testimony to prove that the defendant had promised to pay the debt of “Mary” for these articles under Article C. C. 2278, S. 3.

The question arises whose debt was it, Mary’s or the defendant’s? We are of the opinion that it was the defendant’s, because it follows from the testimony that the plaintiffs gave credit to defendant and not to “Mary”, who was a minor. Watson Bros. vs. Jones, 125 La. 249, 51 So. 187; Moriarty vs. Bagnetto, 110 La. 598, 34 So. 701; 20 Cyc. 160 (2), 162 (3); 2 Peters 169 (182); 2 Evans Pothier 153.

The error of the defendant is in assuming that she- hound herself as “surety” for her daughter, while in fact she hound herself “personally” as she was authorized to do under the statute. “Two persons may be bound as principals for the same debt.” Watson Bros. vs. Jones, 125 La. 249, 51 So. 187; Moriarty vs. Bagnetto, 110 La. 598, 34 So. 701.

Whether it was the debt of “Mary” or of the husband the defendant bound herself for it as principal.

The defendant admitted that she was liable for the payment of $2.25, amount of purchase made by her after the death of her husband.

It is therefore ordered that the judgment herein rendered be reversed and set aside, and it is now ordered that the defendant, Mrs. Elka Freeman, Widow Ernest M. Loeb, he condemned to pay to the plaintiffs, Gast and Levy, the sum of Fifty-three 80-100 dollars with five per cent per annum interest from September 1, 1927, till paid and all costs.