text:
    No. 3445
    Second Circuit (Second Division)
    COLLINS v. McCOOK
    (July 16, 1931. Opinion and Decree.)

      Rusca &■ Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   STEPHENS, J.

The defendant, A. J. McCook, a resident of Caddo parish, La., ■ instituted suit No. 18723 on the docket of the Tenth district court, parish of Natchitoches, against J. T. Collins, plaintiff herein, a resident of Union county, Ark., for the sum of $659.40. In said suit, a writ of attachment was sued out, and certain property of Collins seized, upon the ground that he was a'’non-resident of .the state. Judgment was rendered for the sum sued for, and maintaining the writ of attachment. Subsequently, the judgment was executed against the property, and McCook, defendant herein, purchased the same at sheriff’s sale for $184. The sheriff deducted $71.80, the costs of the proceeding, and returned the writ as satisfied to the extent of the difference, which Ls $112.82.

The purpose of this suit is to annul that judgment and the sale resulting therefrom, because of certain alleged irregularities in the proceeding by which the judgment was obtained.

The defendant filed an exception of no cause or right of action, founded on the proposition that plaintiff’s exclusive remedy was by appeal. The exception was- overruled, and the defendant answered, denying the existence of the alleged irregularities, and asserting the legality of the judgment and subsequent proceedings, but in the alternative praying that, if it be held that the judgment attacked be a nullity, he should recover against the plaintiff the sum of $659.41 (which was the amount sued for in the attachment proceeding), in reconvention.

Judgment was rendered in favor of the plaintiff by the district court, annulling the judgment formerly rendered, and in favor of the defendant on his. recqnventionai demand for the sum of $112.85. The defendant appealed and the plaintiff answered the appeal, praying that the judgment upon the reconventional demand be reversed and rejected, and that otherwise the judgment be affirmed.

Plaintiff urges a number of grounds of nullity of the judgment, among which are the following:

(1) That the judgment rendered is not one in rem, but a personal judgment.

(2) The cause of action arose in another state where both plaintiff and defendant were domiciled; and that the trial court was without authority to entertain jurisdiction.

(3) The curator ad hoc was appointed before the sheriff executed the writ of attachment and before return was made thereof.

(4) That the service was invalid, null, and void.

It is only necessary to discuss the last stated of these grounds of nullity, as the record discloses that the service of process was fatally defective. The law governing procedure against a non-resident, as it relates to the service of process when writs of attachment are caused to be issued, is found in articles ,254 and 255 of the Code of Practice.

“Art. 254 (as. amended by Act 9 of 1926). If, on the contrary, the defendant has no known place of residence, conceal his person, be absent or reside out of the State, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which suit is pending is held; or on a bulletin board located near the entrance to the said court room.”
“Art. 255. In the latter case, the sheriff must keep the copy of the petition, in order to deliver the same to such party, should he appear, or to the advocate appointed to defend him, in his absence.”

The return of the sheriff on the citation reads as follows:

“Served certified copies of the within Citation, and the Petition A. J. McCook thereto annexed, in person upon Henry Breazeal, Curator ad hoc in the Parish of Natchitoches no miles from the Court House on the 26th day of January. 1927.
“H. H. Hathorn, Deputy Sheriff.”

The sheriff’s return oh the writ of attachment -reads:

“I do hereby certify that I served a true copy of the within writ by delivering same to H. H. Breazeale and curator in person on the 26th day of January 1927.”

It -will thus be seen that none of the requirements of the law have been complied with, except that the petition was properly served on the curator ad hoc, and even in this respect, as. contended by counsel for the plaintiff, the service was prematurely made. The citation and the writ of attachment should have been posted in accordance with the law “on the door of the room where the court in which suit is pending is held; or on a bulletin board located near the entrance to the said court room.”

The failure of the sheriff to post the citation and writ renders the service and seizure invalid; and, as the jurisdiction of the court is founded on the validity of the seizure in an attachment proceeding against a non-resident, .the judgment and resulting sheriff’s sale is likewise invalid, null, and void.

In Pugh v. Flannery, 151 La. 1063, 92 So. 699, 701, it was held:

“It is the established law of this, state that a writ of attachment in the case of a non-resident is not merely a conservatory writ, but is the basis and foundation of jurisdiction, which cannot be acquired except under the very letter of the law allowing process.”

The following excerpt from Putnam v. President, etc., of Grand Gulf R. & Banking Co., 3 Rob. 232, has been quoted approvingly in many cases since decided:

‘‘We have repeatedly held that' the formalities prescribed by article 254 of the Code of Practice, stand .in lieu of a citation, and that they form the basis on which all the subsequent proceedings in the cause must rest. * * * This could not, in our opinion, cure the radical defect, which rendered null and void all that had been done in the suit, after the filing of the petition.”

An attempt was made during the trial of this case to show by parol that a proper legal service had been made. The testimony tendered was objected to on the ground that the only evidence of service that should be admitted is the sheriff’s returns on the citation and writ. The court, in effect, admitted the evidence subject to the objection. We are of the opinion that the legality of the service, the jurisdiction of the court, and the validity of the judgment and sale, must be determined solely upon what is contained on the face of the sheriff’s returns on the citation and writ of attachment. Evidence of the service of process aliunde should have been excluded. Leblanc v. Perroux, 21 La. Ann. page 26; Harris v. Alexander, 1 Rob. 30.

However, we may state in this connection, that if the parol evidence which was ■thus admitted be considered, it does not establish that legal service was made, but tends to show the contrary.

We think the district court correctly overruled the exception of no cause or right of action. The plaintiff Collins’ right of appeal on tne judgment rendered in the attachment proceeding was not his exclusive remedy. He was entitled to assert his •right .in an acción of nullity. The case falls clearly within the provisions, of article 606 of the Code of Practice, which authorizes actions of nullity ■ for vices of 'form. As Collins, the defendant in the attachment proceeding, was not legally cited, the seizure was invalid, and the court was without jurisdiction of the subject-matter.

The plaintiff, in his answer to the appeal; attacks .the judgment, rendered against him by the district court on the reconventional demands, upon the following grounds:

(1) The court‘erred in assuming jurisdiction of the reconventional demand, Since the cause of action was a contract between the parties entered into in a sister state having jurisdiction of both the plaintiff and defendant.

(2) That such cause of action could not be asserted in an action of nullity when plaintiff submitted himself to the jurisdiction for no other purpose than to vindicate his rights.

(3) That the judgment in recdnvention was based on testimony received over objection, and wholly insufficient to warrant the judgment.

No authority is cited for the first of these contentions. The state of Arkansas is to the same extent, and for the same reason, without jurisdiction of the person of the defendant McCook as the state of Louisiana is without jurisdiction of the person of the plaintiff Collins. McCook is a resident of Louisiana, and Collins is a resident of Arkansas, and, that being true, it is immaterial as to where the cause of action arose. The question is, as presented by plaintiff’s second assignment of error: Did the plaintiff submit himself to the jurisdiction of the Louisiana court by in-yoking its relief from the operation of a void judgment?

We are advised in brief that the trial couijt was of the opinion that the question should be answered in the affirmative, on •the authority of Andrews v. Sheehy, 125 La. 218, 51 So. 122.

The Supreme Court did not pass on the question in Andrew v. Sheehy, but refused to do so because it was, presented for the first time in brief on appeal.

Article 375 of the Code of Practice reads, in part, as follows:

“Provided, that, when the plaintiff resides out of the State, or in the State, but in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with, or incidental to the main cause of action. * * * ”

In the case of Dawson v. Frazar,. 150 La. 203, 90 So. 570, 571, the Supreme Court said in its original opinion, after quoting the above from article 375 of the Code of Practice:

“The law thus referred to, draws no distinction between those who go into court through necessity to protect or to assert their rights and those who go in for other reasons, if such other there be; the idea being that, if each of two persons has a claim against the other and they reside in different places, the one who is sued shall have the right to assert his claim at the same time and in the same forum, that he is compelled to defend against the claim of the other.”

'Mr. Justice Provosty dissented from the majority of opinion in Dawson v. Frazar, but, on rehearing, was the organ of the court, and used the following language:

“Dawson’s learned counsel recognize that personal jurisdiction of a non-resident is acquired by his voluntary appearance, but contend that the appearance of Dawson for suing out the injunction was not voluntary, but forced, in order to protect his property against an illegal seizure.
“No process of the court compelled Dawson to appear; hence his appearance was voluntary. Indeed, as a matter of fact, he might have exercised his legal rights through the curator ad hoc, and thus personally kept away.”

We believe it clearly the law that, if a non-resident invokes the jurisdiction of a court in this state for any purpose, he thereby submits himselt to the jurisdiction of the court for all purposes. The same rule obtains generally throughout the states. We find it stated in 2 R. C. L. page 333, as follows:

“Such an appearance (an appearance as here for the purpose of attacking a void judgment for want of service of process), however, is unquestionably a submission of the person of the defendant to the jurisdiction of the court for further proceeding, after the vacation of the judgment, without further process. One against whom a judgment has been entered without jurisdiction-of his person submits himself to the jurisdiction of the court by appearing for the purpose of quashing a garnishment proceeding to subject his property to the satisfaction of the judgment, and to contest a motion to amend the return of service.”

We find no error in the conclusion of the trial judge that the evidence was sufficient to support the reconventional demand. The amount allowed is correct; it being the sum credited to the plaintiff by virtue of the sheriff’s- sale, which has been decreed a nullity.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,678
    Orleans
    CONTINENTAL JEWELRY CO. v. WEILBACHER
    (July 1, 1931. Opinion and Decree.)
    Milner & Porteous and F. Carter Johnson, of New Orleans, attorneys for plaintiff, appellant.
    Arthur Landry, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a corporation of Cleveland, Ohio, engaged in the sale at wholesale of jewelry, through J. R. De Steigner, a salesman, obtained from defendant an order for jewelry totaling $276. The jewelry was delivered in due course, but, as the purchase price was not received by plaintiff, this suit is now brought for the recovery thereof. In defense to the suit it is contended that settlement was made by defendant with De Steigner; the said De Steigner having agreed to receive back some $200 worth of the jewelry, together with $45 in cash and a note due 60 days thereafter for the balance, to-wit, $31. Plaintiff contends that the said De Steigner had no authority to make any such settlement, that his authority was limited to the sale of merchandise, and that such settlement is not binding upon it.

It is contended on behalf of defendant that at the time of the sale De Steigner told defendant’s agent that the jewelry could be returned if any difficulty was experienced in selling the same. This agreement, however, does not appear in the written contract of purchase, and, in view of the language of that contract, it appears to us that evidence tending to prove the making of the verbal agreement should not have been admitted. See Civil Code, art. 2276; J. L. Mott Iron Works v. Renaud, 8 Orleans App. 144; Katz v. Karnofsky, No. 9614 Court of Appeal, Parish of Orleans, (unreported) [see Louisiana and Southern Digest].

The particular language in the contract of sale to which we* refer is as follows:

“Salesman’s authority is limited to taking orders on this form and nq change or condition is binding unless, in writing on the original order accepted by us at Cleveland, Ohio.”

For several months after the receipt of the goods it is evident that defendant experienced difficulty in diposing thereof, and on or about January 5th, which was slightly over two months after the goods had been received, the said De Steigner called at the place of business of defendant, having in his possession a printed document which was sent him by plaintiff, giving him the information necessary to call on defendant in an effort to effect settlement qf the claim. On this form defendant, through his agent, prevailed upon the said De Steigner to write the following:

“Jan. .5, 1928.
“Reed from F. E. Weilbacher n on account #129 in full settlement (show case to remain his property) $200.00 two hundred dollars. Merchandise per invoice 333247 Cash ($45.00) forty five dollars and note of sixty days for $31.00.
“Continental Jewelry Co.
“By J. R. de Steigner.”

It is contended that, inasmuch as De Steigner had this form in his possession, defendant was justified in assuming that he had been vested with authority to make any settlement which in his judgment might seem best, and that thus defendant was justified in making the settlement referred to. Plaintiff meets this contention with the argument that the salesman had no authority to do anything except sell goods and that this limitation appeared on the original order executed by defendant. In this situation, however, we do not believe that the original order can be taken into consideration because that had been fully executed, and when De Steigner, the agent, again called on defendant, it was in compliance with instructions from his employer, plaintiff, and he was apparently clothed with authority by reason of the document which he presented to defendant, and which to the layman was apparently instructions from his principal authorizing him to discuss the matter with defendant and to make some adjustment thereof.

It is true that one who deals with' an agent does so at his peril. See Chaffe v. Stubbs, 37 La. Ann. 656; Wilder v. Wilder, 89 Ala. 414, 7 So. 767, 9 L. R. A. 97, 18 Am. St. Rep. 130; Mechem on Agency, section 289. But there is another principle which we find involved here, and that is that, where a loss is sustained and it must be placed on one of two innocent parties, he who has so acted as to lead the other into error must bear the loss.

The trial court found for defendant and dismissed the suit, and we think that no error was committed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it Is, affirmed, at the cost of plaintiff and appellant.

JANVIER, j., takes no part.


author: STEPHENS, J.

text:
    No. 3863
    Second Circuit (Second Division)
    ADAMS v. CITIZENS’ BANK
    (July 16, 1931. Opinion and Decree.)
    Henry W. Bethard, Jr., of Coushatta, attorney for plaintiff, appellee.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff alleges that on the 27th day of March,1922, the Citizens’ Bank of Campti instituted a suit in the Tenth judicial district court in and for the pafish of Natchitoches, against him, W. J. Walker, and the estate of C. L. Ma-bin, on a promissory note for the sum of $550; said suit being numbered 16941 on the docket of said court. He further alleges that on the 27th day of May, 1922, the Citizens’ Bank of Campti obtained judgment in said suit against him and his co-defendants, in solido, for the full amount of his claim and costs, and that said judgment was immediately thereafter recorded in the mortgage records for the parish of Natchitoches.

The plaintiff further alleged that he is not bound by the judgment rendered in said cause, as it is an absolute nullity, and without effect either in fact or in law, for the reason that he was never legally cited in said suit as tne law directs.

He prays that the judgment be decreed a nullity and ordered canceled from the mortgage records of the parish.

The defendant filed an answer denying the invalidity of the judgment sought to be annulled, and in the alternative, in re-convention, prayed that it have judgment for the full amount of the note sued on, less certain credits of amounts collected on the judgment from the estate of C. L. Mabin.

The plaintiff filed pleas of prescription of one, three, and five years in bar of defendant’s reconventional demand.

A trial of the case resulted in a judgment in favor of plaintiff, decreeing the nullity of the judgment and ordering its cancellation from the mortgage records as-prayed for, and further sustaining the plea of prescription of five years. The defendant appeals.

The case was submitted to the trial court on the following agreed state of facts:

“1. It is admitted that B. F. Adams, plaintiff, signed the note sued on in cause No. 16,941, and that judgment was rendered thereon against him and his co-makers on May 27, 1922, which judgment was immediately filed for record and recorded in the Office of the Recorder of Mortgages in and for the parish of Natchitoches, in Book-page - of the official mortgage records of the Parish of Red River.
“2. That the note sued on was an in solido obligation, and was for the sum of $550 with eight per cent per annum interest from July 10, 1921, and ten per cent attorney’s fees; that prescription ordinarily commenced to run on said note from its maturity date, July 10, 1921. The matter of the interruption of prescription being submitted to the court as one of the issues of the case.
“3. That the judgment originally obtained in said cause No. 16,941, was for the principal sum of the note with interest and attorney’s fees and costs, and that after the same was obtained a credit of $325.88 was realized and applied thereon on May 23, 1924 by judicial proceedings directed against the Estate of C. L. Mabin, and through the sale of the property belonging to said succession.
“4. That the only service m'ade on B. F. Adams in said cause No. 16,941 was made by J. A. Holman, a resident deputy sheriff and constable of Natchitoches parish, Louisiana, who went beyond the Parish of Natchitoches and into the Parish of Red River and made said service at Coushatta, in said Parish of Red River.
“5. That suit No. 16,941 was. instituted in Natchitoches Parish in March, 1922.”
“7. It is admitted that the balance due on the judgment, being the amount of the note less the credit set forth in Article 3 hereof, is not paid.”

We have eliminated from the statement of facts those articles which relate to the residence or domicile of the plaintiff at the time of the service of the citation, which was the foundation of -the suit resulting in the default judgment sought to be annulled, for the reason that it is conceded by counsel for defendant in his brief that a legal service cannot be made by a sheriff beyond the territorial confines of his own parish. In the proceedings here attacked, the deputy sheriff of Natchitoches parish served the citation and a copy of the petition on B. F. Adams in the parish of Red River. It is- immaterial whether Adams was a resident of - Red River or Natchitoches parish, as in either case the service of citation was illegal.

Clearly, the judgment rendered against Adams, plaintiff herein, founded on a citation thus illegally served, should be annulled and canceled from the mortgage records.

We find the sole question in the case to be: Has the plaintiff been released from his obligation on the note by the prescription of five years?

While counsel for the defendant concedes the illegality of the service of citation, he is by no means in accord with the counsel for the plaintiff upon the effect of that service as it relates to the interruption of .prescription. Defendant’s, contention is that prescription was interrupted by the service of citation as made, and that, however irregular or illegal the citation was, the interruption continued until it was judicially determined to be illegal, null, and void. In support of its contention, the defendant cites article 3518 of the Civil Code, Christopher Satterley v. Morgan, 33 La. Ann. 846, and Babin v. Lyons Lumber Co., 132 La. 873, 61 So. 855.

The plaintiff contends that the citations which were the subject of the litigation in ■the cases cited by the defendant were merely defective, but that the citation which we have under consideration here is ah absolute nullity; that a defective citation does interrupt prescription, but, if the citation be an absolute nullity, it can have no legal effect.

We think the plaintiff is correct in this contention. A distinction has been clearly drawn by the Supreme Court between the effectiveness of a citation as a basis, for judgment and for the purpose of interrupting prescription. Mr. Justice Provosty directed attention to this distinction in the case of Schwartz v. Lake, 109 La. 1081, 34 So. 96. He said:

“Counsel for plaintiff argues, however, and correctly, that this court has made a distinction between citation for the purpose of serving as a basis for judgment, and citation for the purpose of interrupting prescription, emancipating the latter from the strict compliance with requirements of article 179, Code Practice, exacted in the case of the former. But this court has never held, and could not hold, that prescription can be interrupted by the service of a document such as. the one here in question.”

In that case the citation was properly served, but was not signed by the clerk. The court éxhaustively reviewed the jurisprudence, and concluded thqt, if a citation was merely irregular or defective in some slight particulars, it would serve to interrupt prescription; but that, if it was insufficient to convey the mandate of the court to the defendant, it could serve no such purpose. A citation not signed by the clerk was held to be insufficient service as the basis for the interruption of prescription, and with reference thereto, it is stated in the opinion:

“Unless a defendant can be cited without . a citation, we do not see how it can be contended that the defendant in this case was cited. This unsigned paper was certainly not a citation, and the copy of the petition was not a citation, and the two together were not a citation. A citation is an order from the court to the defendant •to appear and answer, and this order can emanate only from the clerk, and only under his signature. It is the clerk’s signature that imparts legal life to the document called a ‘citation.’ Without the clerk’s signature, the document is nothing more than mere writing or print.”

The citation in the case at bar is as incapable of producing legal effect as the citation in question in Schwartz v. Lake. Service of citation must proceed through legal channels in order that the mandate of the court move directly to the defendant. It is not sufficient for the purpose of interrupting prescription that the suit be filed and knowledge thereof conveyed to the defendant. It cannot reasonably be contended that service of citation by a private citizen would interrupt prescription; nor could it be contended more convincingly, that citation served by a deputy sheriff beyond the territorial limits of the parish in which he officiates would have greater legal efficacy than service by a private citizen. A deputy sheriff of Natchitoches parish, with respect to his power and authority to serve citation in Red River parish, is a private citizen. No legal effect would result from service) of citation by a private citizen; likewise none would flow from service of citation by a deputy sheriff with no greater authority than a private citizen.

There was no citation of plaintiff in the former suit. Therefore there was no interruption of prescription resulting from the provisions of article 3518 of the Civil Code.

The defendant relies primarily upon the case of Babin v. Lyons Lumber Company, supra. The decision in that case is not in conflict with the decision in Schwartz v. Lake, but in our opinion is consistent with it. The syllabu's in the former case, written by the court, reads as follows:

“For ordinary purposes of a suit and judgment a citation or judicial demand addressed to a person other than the one intended to be sued, though delivered to the latter, is ineffectual; but, where such demand has been served upon' the right person and conveys full information, a slight error in the designation or description of the person intended to be sued, which could mislead no one, will not prevent its interrupting the prescription of the claim so demanded.”

The decision in Schwartz v. Lake has not been overruled, either directly or impliedly, and the reasons therein assigned for judgment we think should govern the disposition ol' the question here presented.

The prescription was, however, interrupted as to the plaintiff, B. F. Adams, by the prosecution of the suit against his co-debtors, in solido; but it began to run anew from, the date of the judgment in that proceeding. Richard v. Butman, 14 La. Ann. 144.

The judgment sought to be annulled was rendered May 27, 1922. Prescription was again interrupted as against plaintiff, B. F. Adams, by the filing of the reconventional demand in this case on December 7, 1929. But as. five-year prescription had accrued more than two years prior to the latter interruption, it was properly sustained by the district court.

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


author: DREW, J.

text:
    No. 4056
    Second Circuit
    NATCHITOCHES MOTOR CO., INC., v. CAMPBELL
    (July 14, 1931. Opinion and Decree.)

      R. W. Oglesby, of Winnfield, attorney for plaintiff, appellant.
    Cas Moss, of Winnfield, and C. H. McCain, of Colfax, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for $125, alleging that defendant, a general contractor for the Louisiana highway commission, was engaged in constructing a road near St. Maurice, La.; that it sold and delivered an automobile to E. L. Epperson, who was at the time doing work as a subcontractor for defendant; that the said Epperson gave petitioner an order on defendant to pay to petitioner the moneys due him on the truck pay roll, Epperson being at the time engaged in hauling for defendant; that on the same day defendant gave petitioner a written promise to pay the sum of $125, on or about June 20, 1930, and it attached the two documents to its petition and made them a part thereof.

It further alleged that defendant has failed to pay out of the money due Epperson, which was sufficient to pay the said order; it alleged that the order was accepted in good faith by plaintiff and accepted by defendant, through his agent, A. V. Hudnall, who had charge of the pay roll on-this particular job; and that the money due Epperson was diverted to other channels, and that defendant is therefore liable.

Defendant filed an exception of no cause or right of action, which was referred to the merits. Answer was filed denying the principal allegations of plaintiff’s petition and especially denying that A. V. Hudnall was authorized to accept the order alleged on or to give an order or promise to pay for defendant or to sign said defendant’s name to said order or acceptance. That he was without mandate or authority to issue a written obligation to pay plaintiff any amount.

He called in warranty Booth Motor Company, Incorporated, to whom the money due Epperson had been paid on a prior order given by Epperson and accepted by defendant. Booth Motor Company, Incorporated, answered, setting up the same defense as made by defendant and admitting its liability to defendant should he be held liable to plaintiff under the written agreement made with defendant at the time the money due Epperson was paid to warrantor.

The lower court rendered judgment rejecting plaintiff’s demands, and it has appealed to this court. Defendant did not appeal and has not answered the appeal. Therefore the exception of no cause or right o.f action is hot before us for decision.

Defendant has specifically denied the authority of A. V. Hudnall to accept the order given by Epperson and to issue a promise to pay, and the burden of proving the authority of Hudnall is therefore upon the plaintiff. In that plaintiff has failed. McCarty v. Straus, 21 La. .Ann. 592.

“An express authority is. necessary to authorize an agent to bind his principal, by a contract of suretyship, for a stranger.” Rev. Civ. Code, article 2997; Gates v. Bell, 3 La. Ann. 62; State ex rel. Merchant v. Daspit, 30 La. Ann. 1112.
“The power of an agent to acknowledge a debt must be more specific than that which enables him to contract one.” Richard v. Bird et al., 4 La. 305.
“Whoever deals with an agent is put on his guard by the very fact and does so at his risk. It is his right and duty to inquire into and ascertain the nature and extent of the powers of the agent and to determine whether the act or contract about to be consummated comes within the province of the agency and will or not bind the principal.” Chaffe v. Stubbs, 37 La. Ann. 656.

The documents on which plaintiff relies for recovery read as follows:

“St. Maurice, La., June 12, 1930.
“Natchitoches. Motor Co., Natchitoches, La.
“Gentlemen: Upon request of Mr. E. L. Epperson, we will honor order on moneys due him on truck payrolls.
“Very truly yours,
“A. C. Campbell
“By A. Y. Hudnall.”
“St. Maurice, La., June 12, 1930.
"Natchitoches Motor Co., Natchitoches, La.
“Gentlemen: We hold Mr. E. L. Epperson’s order in your favor in amount one hundred and twenty-five dollars ($125.00), and will pay you on or about June 20th any moneys due him on our truck payrolls, up to this amount.
“Very truly yours,
“A. C. Campbell
“By A. V. Hudnall.”

The record discloses that Hudnall was in the employ of defendant as assistant engineer and general utility man; that he assisted»with the books and in preparing the pay roll; that he did not have authority to issue checks, this being done by defendant only; that L. T. Henderson was the general superintendent, under whom Hubnall works; that Hubnall had no authority, either express or implied, to bind the defendant by contract or as surety, or to promise to pay the debt of another, or to accept an order on defendant, the only power conferred upon him was to perform the duties of an engineer and to do whatever else he was instructed to do.

It is shown that the documents sued on were not sent to the office of the defendant and were not brought to his. attention until he was in the act of paying the moneys due Epperson to the Booth Motor Company, Incorporated, under an order previously given and accepted, or acquiesced in by the defendant. Hudnall would have had to have express authority from defendant before he could bind defendant on the order and acceptance sued on (Rev. Civ. Code, art. 2997), and it is enough to say that the- record fails to disclose that he had such express authority. To the contrary, it clearly shows that he did not have authority either express or implied, and that his actions, when brought to the knowledge of defendant, were at once repudiated. Whether defendant paid .the moneys due Epperson to Booth Motor Company, Incorporated, or to Epperson, is immaterial, the plaintiff cannot recover.

Defendant has advanced other reasons why plaintiff cannot recover, but, under our finding on the point discussed, it is unnecessary to pass on it. The judgment of the lower court is correct, and it is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with all costs of both courts.


author: HIGGINS, J,

text:
    No. 13,806
    Orleans
    RICHARDSON v. CRESCENT FORWARDING & TRANSP. CO., LTD.
    (July 1, 1931. Opinion, and Decree.)
    (July 20, 1931. Rehearing. Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    A. H. Reed, of New Orleans, attorney for plaintiff, appellee.
    John May, A. M. Süthdn and John A. Smith, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J,

Plaintiff claims compensation under the provisions of Act No. 20 of 1914 (as amended), alleging that hie was employed by defendant as a laborer in its drayage business and that he was injured on the river front oü November 20, 1930, while, loading 1,000-pound drums on defendant’s truck.

The sole defense is that plaintiff does not come under the provisions of the Compensation Law because drayage business is not listed in the said law as a hazardous occupation dr business.

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The evidence shows that defendant is engaged in the drayage business of hauling heavy freight with motortrucks. Plaintiff had been in its employment for a number of years, formerly as a driver of one of its trucks, but for several1 years prior to the accident as a member of a crew of four men, who went with the trucks for the purpose of loading and unloading the freight from them.

On the day in question the crew was attempting to load heavy steel drums on the truck and the “skidder” on which they were attempting to roll the drums upon the truck slipped, causing a drum to fall on plaintiff’s foot and resulting in the injury complained of.

The issue presented here was decided by this court in the case of Labostrie v. Weber, 15 La. App. 241, 130 So. 885, 886. In that case plaintiff was a negro laborer employed by defendant to drive his motor-truck and assist in loading and unloading it. At the time he was injured he had been ordered by his employer to assist in demolishing a' building where defendant intended to erect a new building to house the motortrucks. The defense was that the employer’s business was not enumerated among those classifications mentioned as hazardous under the Compensation Act and that the injury did not arise out of or during the course of plaintiff’s employment. In disposing of these issues we said:

“Did Weber’s business come within the enumeration of occupations classified .as hazardous under the compensation statute? Subsection (a) .of paragraph 2 of section 1 of Act 20 of 1914 reads as follows:
“ ‘Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in the following hazardous trades, businesses and occupations: * * *
“ ‘The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.’
“In considering this section, the Supreme Court, in Haddad v. Commercial Truck Co., 146 La. 897, 84 So. 197, 9 A. L. R. 1380, held that the operation of a motor-truck was a hazardous occupation because motortrucks are propelled ‘by gasoline engines or motors, which by the use of gasoline produce their own energy or motive power. The driving of such motortrucks necessarily involves the operation of such engines.’ The court then gives a definition of the word ‘engine,’ and concludes that the operation of a gasoline engine is as much contemplated by the statute as hazardous as the operation of a stationary engine.
“It follows, therefore, that an employer, who is engaged in moving furniture by means of a motor-driven vehicle, is engaged in an occupation which comes within those enumerated in subsection (a) of paragraph 2 of section 1 of Act 20 of 1914. Consequently, we find as a fact that Labostrie, by reason of his employment in the operation of a motor-driven vehicle, was engaged in a hazardous occupation. See, also, Beebe v. McKeithen Const. Co., 5 La. App. 179; Plick et al. v. Toye Bros. Auto & Taxicab Co., 13 La. App. 525, 127 So. 59.
“Finally, it is contended that Labostrie was not injured in the course of his employment. This argument is based upon the fact that Labostrie was not driving the motortruck when injured. Hence it is said that his injury was not received during and did not arise out of his employment. He was attempting to remove the roof from the building, when a part of it fell and injured him. If he had been hurt while standing still upon his employer’s premises, in a location where his business required him to go, he would, nevertheless, be entitled to recover, because, it having been established that his employer’s business was hazardous, he could recover under the Compensation Statute, whether his injuries were received while engaged in the hazardous or nonhazardous feature of his employment; no distinction being made in -the act between the duties of an employee which may be said to be hazardous and those which are otherwise.
“In Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, 304, the court said:
“‘In the present case, plaintiff’s husband was admittedly engaged in both hazardous and nonhazardous branches of his employer’s business. It was all one employment for which he received but one compensation. Therefore, it is immaterial whether his nonhazardous duties constituted his major employment to which his hazardous duties were merely incidental, or vice versa. The fact remains that the deceased met his death while actually engaged in performing duties, whether main or incidental, called for by his employment.’
“See, also, Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677.”

But counsel for defendant say this authority is not in point because plaintiff in this case was not employed as a truck driver. It is quite true that he was not employed as a truck driver, but his duties brought him necessarily into frequent contact with trucks and on many occasions required that he ride on them. In this way it was necessary for him to w'ork in and around machinery, and whether or not he himself operated the machinery is of no great importance.

We quite agree with counsel for defendant that the mere fact that certain phases of the general work conducted by a master are hazardous does not result in bringing under the ¡protection of the act all employees, whatever may be their duties. For instance, stenographers, office boys, bookkeepers, and such other employees as are not brought into contact with the hazardous features of the master’s business are not protected, and, if injured, must seek redress under article 2315 of the Civil Code. But, where certain phases of the work are hazardous and are within the contemplation of the compensation statutes, all employees engaged therein, or necessarily brought into direct contact therewith, are afforded the protection which the compensation statutes were designed to furnish. In an interesting Illinois case a company was engaged in the manufacture and sale of ice, coal, coke, etc., and maintained a barn in which it kept horses used in the delivery of its products. The deceased was a teamster employed by the company to deliver ice and coal, and he was killed as a result of being kicked by a horse while he was feeding it. It was strenuously argued that the deceased was not engaged in the hazardous part of the company’s business, but the court said:

“Here the duties of the deceased required him to work in and around the plant where the ice was manufactured, and included the loading of ice and the care of the horses in a large stable on the premises of plaintiff in error immediately adjacent to the main ice plant. We cannot see how it can fairly be held that the employment in which the deceased was engaged was not a part of plaintiff in error’s business or occupation of manufacturing and selling ice. * * * The men in the building of plaintiff in error where the machinery was located and the ice manufactured were certainly within the act. The workmen around the building and caring for the property were within the act. Those whose duties took them to the plant to take away the product were within the act, and we can reach nq other conclusion than that the duties of the deceased were of such a nature, so related to and-connected with the occupation of plaintiff in error, as to require that plaintiff in error, under the provisions of the Workmen’s Compensation Act, shall be held liable for the injury.” Suburban Ice Co. v. Industrial Board of Ill., 274 Ill. 630, 113 N. E. 979, 981, 14 N. C. C. A. 1080.

We find the reasoning above quoted applicable here.

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

JANVIER, J., takes no part.


author: HIGGINS, J.

text:
    No. 13,884
    Orleans
    MENEFEE MOTOR CO., INC., v. PIQUE
    (July 20, 1931. Opinion and Decree.)
    Clarence de Lucas, of New Orleans, attorney for plaintiff, appellee.
    J. O. Chamberlain, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO DISMISS

HIGGINS, J.

Appellee moves to dismiss this appeal upon the following grounds: First, that the appellant has failed to furnish an appeal bond; and, second, that the transcript is incomplete because it does not contain four exhibits which appéllant offered in evidence in the trial court.

We have not been favored with a brief by counsel for appellant.

The record shows that the plaintiff was awarded a monied judgment against the defendant, who obtained an order for a suspensive appeal and furnished an appeal bond.

On a rule taken by the plaintiff, the trial court held the surety on the bond to be deficient and ordered defendant to furnish a proper surety within four judicial days. Within the allotted time a second suspensive appeal bond was given, and a rule was again taken, to test the surety. The court again held that the surety was deficient and set aside the order granting the appeal. The defendant and appellant did not appeal from' either of these judgments.

The law governing the case is found in the provisions of Act No. 284 of 1928 amending section 3 of Act No. 112 of 1916, the relevant part of which reads as follows:

“* * * That should any bond be declared invalid for any reason whatsoever, the party furnishing such bond shall have the right, within four judicial days thereafter, to furnish a new bond; and provided further, that should this new bond be found to be defective in any respect whatever, or the surety or sureties, insufficient, the person furnishing such new bond shall not thereafter be entitled to furnish any additional bond.”

It would appear from the foregoing that where a defective or insufficient bond has been given, the party furnishing it is allowed an opportunity to substitute a proper bond. But, if the second bond proves to be defective, the furnisher of the bond shall not thereafter be permitted to give any additional bond.

The articles of the Code of Practice require, in cases of monied judgments, that a bond in the sum of one and one-half times the amount of the judgment be furnished securing the payment of any judgment that might be rendered in the cause on appeal. Code of Practice, art. 575. The situation is the same as if no bond at all had been given, consequently the motion to dismiss must prevail.

It is unnecessary to discuss the second point.

For the reasons assigned, it is ordered, adjudged, and decreed that the motion to dismiss the appeal be, and it is hereby, sustained, and the appeal dismissed at appellant’s cost.


text:
    No. 4054
    Second Circuit
    OUACHITA FLOUR & SEED CO. v. B. A. OLIVE & SON
    (July 14, 1931. Opinion and Decree.)
    Shotwell & Brown, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Bastrop, attorneys for defendants, appellants.
   DREW, J.

This matter comes before- the court on an application on behalf of B. A. Olive to remand the case for a new trial. Attached to the application is a certificate from the clerk of court of the parish of Morehouse, certifying to the fact that the record has never been lodged in this court and setting forth his reasons for not returning same here. However good his reasons may be for not completing the record, they are not good for his not returning the record as is into this court.

There is nothing before this court to remand. The record or no part of it has ever been returned here, therefore, the motion to remand the case for a new trial will have to be denied.

Causey et al. v. Central Construction Co., 2 La. App. 637.


author: DUNBAR, Judge ad hoc.

text:
    No. 13,879
    Orleans
    KARDIS v. BARRERE
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellee.
    Carroll, McCall & Plough, of New Orleans, attorneys for defendant, appellant.
   DUNBAR, Judge ad hoc.

Plaintiff seeks to recover the purchase price of two certain ice cream boxes sold by him to the defendant, described in 'an advertisement which brought about the sale as “two frigidaire ice cream cabinets,’’ and described in the notarial act of sale as “two certain ice cream frigidaire boxes, containing eight holes. White enameled.”

The defendant in his answer alleges a repudiation and rescission of the sale, and denies liability for the purchase price on three separate grounds, although the three defenses, are not clearly and logically separated in the answer and evidence, to-wit:

(a) That there was an express verbal understanding between the defendant and plaintiff at the time of the purchase and delivery of the property, and also at the time of the execution of the act of sale, that the defendant, as purchaser, would not be required to pay either the original cash portion of the agreed purchase price, which the act of sale recited had been paid, or the notes representing the balance of the purchase price, if, after trial of the boxes in defendant’s place of business, the two ice cream boxes did not develop a temperature of twenty degrees below zero, Fahrenheit;

(b) That the boxes leaked and were unfit for the purposes for which they were purchased; and

(c) That plaintiff represented in his advertisement, and agreed in the act of sale that the boxes sold were “Frigidaire boxes” and that defendant intended to buy and assumed that he was buying a well-known and widely advertised product, to-wit, “Frigidaire boxes,” manufactured by the Frigidaire Company, and that as a matter of fact the boxes were “Russ boxes,” manufactured and sold by another company, and that only the compressors and coils-were manufactured by the Frigidaire Company.

The evidence is- conflicting with regard to the first two defenses referred to above, and we are inclined to agree with the finding of the learned judge of the district court in -this connection, who heard the witnesses and stated that on the whole he did not feel the burden of proof had been sufficiently sustained by the defendant.

The facts- in relation to defendant’s third defense, however, are supported by the evidence and testimony of both the plaintiff and defendant. When defendant saw plaintiff’s advertisement in the paper, offering Frigidaire boxes for sale, he called at plaintiff’s place of business and agreed to purchase the boxes, and the boxes were delivered by plaintiff to defendant. In a few days thereafter, the act of sale was passed, and the two boxes were described by -the plaintiff in the act of sale as “two certain ice cream frigidaire boxes, containing eight holes. White enameled.” Defendant testified that prior to the purchase of the two boxes involved in this case, he had purchased and had been using for some time in his business “Servel” ice boxes; that he had had difficulties with them, and had finally, by purchasing a new compressor, gotten these boxes to work satisfactorily; that he decided, however, that he would not buy any more “Servel” boxes and that when he needed additional boxes he had decided that he would purchase “Frigidaire” boxes, manufactured by the Frigidaire Company. In this connection, defendant testified that he had a high opinion of “Frigidaire” ice cream boxes manufactured by the. Frigidaire Company, that he knew of this well-known and widely advertised product and determined that he would not have any other kind of boxes in his place, and that -therefore, in the present case, he intended to purchase boxes manufactured by the Frigidaire Company, and would not have agreed to purchase or to have accepted delivery of the boxes if he had known that they were not “Frigidaire” boxes manufactured by the Frigidaire corporation. Defendant stated that, although he knew of the reputation and standing of “Frigidaire” boxek manufactured by the Frigidaire Company, he was not sufficiently familiar with the physical appearance of the different boxes manufactured by the different companies to recognize boxes manufactured by Frigidaire Company when he saw them, and for this reason did not know that the two boxes he had purchased were not “Frigidaire” boxes until an employee of the Frigidaire Company, after examining the boxes, informed him as to this fact.

There was no fraud or fraudulent misrepresentation in connection with the transaction, because the evidence shows that both the plaintiff, - as seller, and the defendant, as purchaser, understood and assumed that the two boxes were “Frigidaire boxes” manufactured by the Frigidaire Company. Evidently neither the plaintiff nor the defendant could. recognize a Frigidaire box when they saw one, because the plaintiff testified that he represented the two boxes as Frigidaire boxes in the advertisements and the act of sale, because “he bought them for Frigidaire boxes.” Plaintiff’s statement, therefore, in the advertisements, and his representation and description in the bill of sale, were evidently innocently made.

The testimony shows that, although the plaintiff and defendant assumed that the boxes were Frigidaire boxes, manufactured by the Frigidaire Company, the two boxes' were actually “Russ” boxes, although the compressors and coils attached to the boxes were manufactured by the Frigidaire Company. This fact was accidentally discovered for the first time by defendant several weeks after the boxes had been delivered, when he called in the sales manager of the Frigidaire Company to examine the boxes as a result of the dispute between plaintiff and defendant as to whether the boxes leaked and as to whether they would develop a low enough temperature for use in defendant’s business. Defendant testified that, upon discovering that the boxes were not Frigidaire boxes, he notified the plaintiff to take back the boxes and refused to pay the purchase price.

We are compelled, in the absence of any facts or circumstances to the contrary, to accept defendant’s statement that he intended to buy, and assumed that he was buying two Frigidaire boxes manufactured by the Frigidaire Company, and that he would not knowingly have agreed to buy or accept any other product or boxes manufactured by any other company, and defendant’s assumption that he was buying and accepting Frigidaire boxes seems to have been an essential and dominating factor in inducing him to purchase the boxes. The plaintiff’s advertisement and the description in the act of sale are clear and unqualified, and evidence an express promise and warranty to sell and” deliver two Frigidaire boxes. The fact that plaintiff assumed that the two boxes he was selling were Frigidaire boxes, complete in all respects as such, is immaterial. The plaintiff did not fulfill his promise and representation that the two boxes were Frigidaire boxes. The defendant, when he discovered that the boxes which had been sold and delivered to him were not the kind and character of boxes he intended to buy, hnd which he reasonably assumed he was buying, had a right to rescind the contract of sale and refuse to pay for the boxes, because the promise and, representation as to the character and quality of the boxes was the moving and dominating factor in inducing the defendant to agree to purchase and accept the property.

Although there is considerable conflict in the jurisprudence at common law, the weight, of authority and the opinion of eminent legal scholars, are in support of the conclusion we have reached in this case. The status of the common law authorities and the reason and public policy underlying the cases, and the view we have adopted are very clearly and briefly stated by Mr. Williston in his book on Sales, vol. 2 (2d Ed.) secs. 608 and 608a, in which he discusses the right of rescission for breach of warranty:

“608. Recoupment and an action or counterclaim for damages are generally admitted remedies for breach of a warranty of goods sold; but the third remedy, that of rescission, has been the cause of much discussion. More seriously than that the restoration of the status, quo is impossible, it has been urged that rescission, as it involves a transfer of title back from the buyer to the seller, that even if rescission were ordinarily permissible by the act of one party, it cannot properly be allowed where the obligation is collateral to the main contract as a warranty is said to be.
“As to the first of these objections, it has been shown in another connection that in many cases a transfer of title by the act of one party is allowed. As to the other objection, it should be observed that a warranty in the English law is not always collateral — in form at least. A promise which forms part of the description becomes a warranty when title passes. * * *
“The remedy of rescission, if allowed at all, is allowed on broad principles of justice. The basis of the remedy is that the buyer has not received what he bargained for. The desirability of such a remedy depends purely on the business customs of a community and on whether it appeals to the natural sense of justice. Do merchants who value their reputation for fair dealing take back goods which they have untruthfully, though innocently, asserted possessed particular qualities: Do reasonable buyers who have bought goods under such circumstances expect the seller to take back the goods and refund the price? These are the essential inquiries, and there can he little doubt of the answers. If' a sale is. induced by fraudulent statements, rescission is admittedly proper. And if a seller knows of the falsity of the statements he makes which constitute a warranty, he is fraudulent, and the bargain may be rescinded in jurisdictions which deny the remedy of rescission for breach of warranty generally. The morality of taking advantage afterwards of false statements innocently made by insisting on retaining the advantage of a sale induced thereby, is almost as questionable as that of making knowingly false statements to bring about the sale. It is. a difficult question of fact, and one which in very many cases of broken warranty, how far the seller knew that his warranty was false. It is a practical advantage if the decision of this question becomes immaterial as it does where rescission is allowed for breach of warranty.
“608a. The English Law clearly denies the right of rescission of an executed sale for breach of warranty. A diminishing number of the United States also deny it. But the majority of them allow it. (Citing authorities.) And the adoption of the Uniform Sales Act in many American jurisdictions has. greatly increased the prevalence of this view. * * * ’’

An. interesting analogy to the allowance of the remedy of rescission which we have already discussed will be found in the law governing “innocent misrepresentation.” Since the promise or representation in the present case was an innocent one, the common-law authorities, dealing with and discussing “innocent misrepresentations” are more logically applicable in support of our decision in the present case. Though it is not yet perhaps universally established that innocent misrepresentations give a right of rescission, the recent tendency of the common law is strongly in that direction. The status of the law and authorities in relation to innocent misrepresentation is stated by Professor- "Williston in his treatise on Sales (2d Ed.) vol. 2, sec. 632, as follows:

“It is not necessary in order that a contract may be rescinded for fraud or misrepresentation that the. party making the misrepresentation should have known that it was false. Innocent misrepresentation is sufficient. For though the representation may have been made innocently, it would be unjust to allow one who has made false representations, even innocently,1^ to retain the fruits of a bargain induced by such representations. This is often called a doctrine of courts of equity as distinguished from courts of law, and doubtless in its origin it was such; but, at the present time, it is rather a distinction between a right of rescission on the one hand, whether that right is asserted in a court of equity, in a court of law, or without the aid of a court; and an action for damages on the other hand. It is, however, a modern doctrine, and though its justice and the weight of authority already in its favor make it clear that it will prevail (citing authorities), there is no little authority for the statement that a right of rescission cannot be established because of misrepresentation, if the misrepresentation though false was made with belief on reasonable grounds in its truth. It is to be remembered also that rescission presupposes. a restoration of the status quo, and is precluded if this becomes impossible.”

Many of the cases cited by counsel for defendant in his brief, such as Lyons Milling Co. v. Cusimano, 161 La. 198, 108 So. 414; Stringfellow v. Botterfill Automobile Co., 63 Utah, 56, 221 P. 861, 34 A. L. R. 533 and note; Held v. Goldsmith, 153 La. 598, 96 So. 272; Kansas Flour Mills Co. v. Moll, 106 Kan. 827, 189 P. 940; W. T. Ferguson Lumber Co. v. Hiawatha Lumber Co., 105 Okl. 193, 232 P. 67; Truman’s Pioneer Stud Farm v. Hansen, 108 Kan. 717, 196 P. 1087; Alabama Broom & Mattress Co. v. Nashville Broom & Supply Co., 208 Ala. 222, 94 So. 83; Southern Colonization Co. v. Derfier, 73 Fla. 924, 75 So. 790, L. R. A. 1917F, 744 — although they illustrate breaches of express promises and warranties in contracts of ■ sale similar to the breach in the present case, are not strictly applicable to the problems involved in this case, because, in the decisions cited, title to the property had not passed, and the only questions presented for decision were whether the buyer was justified in refusing to accept delivery of the goods, or was entitled to an action for damages for the breach of warranty. The right to refuse to accept goods because of a breach of warranty or to sue for damages for the breach, after title has passed and after acceptance of the goods, especially when the breach is material and substantial, seems to be supported by the great weight of authority, both at common law and in Louisiana. In this connection, see Williston on Sales (2d Ed.) vol. 1, secs. 178-187, vol. 2, secs. 484-491; Payne & Joubert v. Lumber Co., 110 La. 750, 34 So. 763. In the present case before us, however, it is to be especially noted that the property sold was identified, title had passed, and the boxes had been delivered to and accepted by the buyer before the breach of warranty was discovered. The conflict in the common-law decisions we have previously referred to arises as a result of the relative and different emphasis given by the courts to the fact that title has passed, and whether under such circumstances rescission should not be denied and the purchaser’s rights confined to a suit for damages.

The law of Louisiana, as announced in the Civil Code and commentators, seems to be in accord with the weight of authority at common law, in so far as our decision in relation to the facts involved in the case now under discussion is concerned. The articles of the Louisiana Civil Code dealing with questions analogous to the problems referred to above in the quotations from Mr. Williston and discussed by him from the viewpoint of the common law are articles 2520 and 2540, inclusive, dealing with “Redhibition.” Article 2520, which allows redhibition or rescission in general, in its terms is confined to cases involving “some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” In the ease before us, however, we have an innocent misrepresentation or a breach of an express promise and warranty and not a “vice or defect in the thing sold” as described in article 2525, which in many respects is similar to a breach of an implied warranty at common law. Laurent tells us that redhibitory vices may not be confounded with the absence of certain qualities that the buyer thought to be in the thing sold, for the absence of a quality* is not a vice. 24 Laurent, Principles de Droit Civil Praneais (3d Ed. 1878) De La Vente, sec. 281, p. 275.

Although article 2520 seems to be restricted, the right of redhibition or rescission, however, is apparently • extended by article 2529 to all cases where there is a breach of an express warranty where the misrepresentation is made in good faith. Article 2529 provides:

"A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.”

It is clear that under this article quoted above a redhibition is allowed where there has been an innocent misrepresentation as •to the quality or character of the thing, even though there is not “vice or defect” within the meaning and intent of article 2520. In our opinion, article 2529 clearly extends the class, and character of cases in which redhibition or rescission is' permitted, and the word “quality” used in the article must be given a reasonable and liberal interpretation, and, if so construed, refers to misrepresentations in relation to the character, make, nature, characteristic, manufacture, and trade-mark and trade-name of things. In the present case, if the word “quality” is given a liberal and reasonable construction, there was, in fact, a misrepresentation of the quality and character of the thing sold which would justify redhibition.

It is to be noted that article 2529 of the Louisiana Revised Civil Code, as we construe it, announces in substance the same principle and rule as the common-law cases dealing with “innocent misrepresentations” alr.eady referred to. In order for an innocent misrepresentation to justify redhibition, however, the Louisiana Code provides that the misrepresentation must be with regard to a quality of the thing which “was the principal motive for making the purchase.” It is probable that the Louisiana law in this connection is more rigid in its requirements with reference to rescission than the common law, although many common-law cases state the rule in substantially the same terms as our Civil Code. Since. we are of the opinion, however, that the misrepresentation in the present case that the two boxes were “Frigidaire Boxes” manufactured by the Frigidaire Company, was the principal motive for making the purchase, the distinction, if any, between the common laW and the Louisiana law on this subject is immaterial in so far as the decision in this case is concerned. For an exhaustive discussion of the articles of the Louisiana Code dealing with “Redhibition,” see two notes in the Tulane Law Review, vol. 4, pp. 433 and 627. See, also, for a discussion of the Roman and Continental law on this subject, Williston on Sales, vol. 2 (2d Ed.) secs. 606 and 609, and the authorities cited.

It may be well to add, in connection with the authorities discussed above, that it is well settled that a buyer is not compelled to keep property simply because it is shown to be equal to or as good as the article or kind of property he intended to purchase and assumed that he had bought. The buyer is entitled to the exact article or the article possessing the exact qualities he expressly bargained for, if the kind of article or quality of the article is the principal motive for making the purchase. Bourne v. Shand, 2 A. C. (H. L.) 463, 475, 480, and authorities cited in Held v. Goldsmith, supra.

Counsel for defendant, in his brief, relies on the articles of the Civil Code with reference to error as to the motive and object of the contract, and cites Louisiana Revised Civil Code, articles 1841-1845, and 1896. These articles deal with the same problem as the analogous common-law cases giving a buyer the right to rescind a contract for “mistake.” If parties enter into a contract on the assumption that certain things are true, it is inequitable to enforce the bargain or to allow it to stand if the mistake relates to a matter so fundamental that it must be assumed -that the parties would not have entered into the transaction had they known the truth. Williston on Sales (2d Ed.) vol. 2, sec. 656. Although the authorities already referred to in relation to innocent misrepresentation and article 2529 of the Louisiana Code are sufficient to dispose of this case, we are of the opinion that if the word “quality” in article 2529 is -to be narrowly construed and is not applicable to the facts of the present case, in such event, the articles of the Code in relation to error and the common-law jurisprudence dealing with the subject of “mistake” justify and support the conclusions we have reached.

The only remaining question to consider is plaintiff’s' contention that the failure of the defendant to discover that the two boxes were not Frigidaire boxes and complaint of this fact until approximately a month after the two boxes had been delivered to him, amounted to a waiver on defendant’s part, which precludes him from asserting the defense and demanding a rescission of the sale. The evidence shows that soon after the boxes were delivered complaints were made by the defendant purchaser that the boxes leaked, and there were also complaints that the boxes would not, after being used and tested, develop a temperature low enough for use in defendant’s business. In other words, there was a series of different and continuous complaints in relation to the boxes, and, as a result of these complaints and the controversy between plaintiff and defendant as to the condition and quality of the boxes, the defendant sent for the sales manager of the Frigidaire Company ’and learned for the first time that the boxes were not in fact “Frigidaire boxes.” The defendant then, which was about a month after the delivery of the boxes, repudiated the sale by requesting the plaintiff vendor to take back the boxes and by refusing to pay for them. The conduct of the defendant buyer in this case was therefore characterized by continuous complaints based on one ground or another, finally culminating in the discovery, followed by an immediate complaint of the vital-fact, that the two boxes delivered to him were Russ cabinets with a Frigidaire compressor and coils, and not complete Frigidaire boxes manufactured by the Frigidaire Company. In the light of defendant’s conduct and continuous complaints, ending with an objection -to the kind and character of boxes received, it is impossible, in our opinion, to find a reasonable basis for an inference of acquiescence or waiver on his part.

A buyer does not waive his right to assert a breach of any promise Qr warranty in connection with a sale, unless he fails to give notice to the seller of the breach of the promise or warranty within a reasonable time after he knows of such breach. The question as to whether there has been a waiver is a question of fact in each case. Williston on Sales (2d Ed.) secs. 484-486, vol. 2. We are of the opinion that the complaint was made by the defendant in this case within a reasonable time after the breach was discovered by him, and that the evidence considered as a whole negatives any reasonable inference of a waiver in this case.

The reconventional demand of the defendant prays for the money expended in connection with the installation of the two boxes in his place of business, and for the amount paid to the notary for the act of sale. Even under defendant’s, theory of the case and in the light of his testimony, the boxes were to be delivered to him to be used and tested, and defendant’s testimony as to the verbal agreement shows that it was never contemplated that plaintiff should bear expenses of this kind, even if the boxes were returned as a result of the rescission of the contract for any cause. Defendant’s claim in reconvention was therefore properly rejected by the lower court.

. It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so -far as it runs in favor of plaintiff on the main demand, be reversed, and it is now ordered that plaintiff’s suit be dismissed. In all other respects the judgment appealed from is affirmed; plaintiff to pay all costs.

WESTERFIELD, J. and MORENO, Judge ad hoc, participating.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,501
    Orleans
    SALLES v. STAFFORD, DERBES & ROY, INC.
    (January 19, 1931. Opinion and Decree.)
    (February 16, 1931. Rehearing Refused.)
    (March 30, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (July 17, 1931. Opinion and Decree by Supreme Court.)
    Welton P. Mouton, of New Orleans, attorney for plaintiff, appellee.
    Roger Meunier and Chas. I. Denechaud, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Dr. Paul Salles brings this suit against Stafford, Derbes & Roy, Inc., for the return of $1,681.86, with interest, che amount demanded being the sum paid by him under an agreement of sale referred to as a “bond for deed,” which it is claimed “imports no obligation, is without consideration, is unilateral, is based on potestative condition on part of defendant, is lacking in mutuality, and that the object of said alleged contract is uncertain.” In the alternative, and in the event that the agreement be held valid, plaintiff alleges that it has been breached in certain detailed particulars.

Defendant admitted the execution of the agreement and the receipt of the amount claimed by plaintiff herein, but denied that the agreement was void, or that it breached the same in any way and insisted that the contract was in all respects valid and legal.

Dr. Salles took a rule for judgment upon the face of the pleadings, alleging that all essential allegations o‘f his petition had been admitted, and, following a hearing, was awarded judgment against the defendant in the sum prayed for. From that judgment this appeal has been taken.

The facts as developed by the allegations and admissions in the pleadings are:

Plaintiff and defendant entered into an agreement whereby the defendant agreed to sell and plaintiff to buy ten lots numbered 17 to 26, inclusive, in square 2, Hanson place, Jefferson parish, La., for $2,000, part of which was paid in cash and the remainder represented by thirty-six promissory notes maturing from time to time, of which $2,000 Dr. Salles paid the amount demanded in this suit.

Stamped across the agreement of sale and forming part of it is the following provision :

“It is understood that Stafford, Derbes & Roy, Inc., may, at their discrétion, cause a new map or re-survey to be made of the property herein sold and that such map or survey, if and when made, may show a change of position, and/or location of property herein sold, provided, however, same number of square feet shown in same square or plot shall be retained.
“It is. further understood and agreed that Stafford, Derbes & Roy, Inc., may at their discretion, make, apply for and obtain dedication of streets, roadways, highways,” etc.

'It is this feature of the contract which plaintiff contends invalidates it, because, as has been heretofore observed, it is lacking in mutuality, and, since it involves no obligation on the part of the vendor, it is, therefore, without consideration, unilateral, uncertain, etc.

The point upon which most emphasis was placed in brief and in argument is the alleged uncertainty of the object of the contract, and it is this contention that we shall first consider.

Article 1779 of the Civil Code provides

“Four requisites necessary to the validity of a contract:
“1. Parties legally capable of contracting.
“2. Their consent legally given.
“3. A certain object, which forms the matter of agreement.
“4. A lawful purpose.”

Turning now to the provision of the contract under attack, we observe that the vendor has reserved the right, though under no duty in that regard, to deliver, in place of the ten lots mentioned in the contract, other property in the same square or plot with the same number of square feet, there being no other restriction or qualification of this reservation. Counsel for Dr. Salles directs our attention to the fact that under this clause the vendor need only deliver property in the same square or plot of ithe same number of. square feet and without regard to its. shape or the number or size of the lots. In other words, assuming the ten lots specifically mentioned in the contract to be rectangular in shape, any number of other lots could be delivered, spherical, triangular, or star-shaped, as the whim or interest of the vendor might suggest, provided only that they be in the same square and in the aggregate contain the same number of square feet. . This, it is said, clearly evidences the uncertainty of the object of the contract.

We were favored with a most interesting oral argument and very able brief by counsel representing the defendant. The provision under consideration was defended upon the ground that its object and motive are not forbidden, and, therefore, permitted by law, and, as to the alleged uncertainty, it is said that what is- so termed is simply an optional condition termed by the French writers “condition Facultative.” It is not contended that there exists any article of our Code recognizing or, adopting the facultative condition from the French Law, but we are referred to article 2062 .et seq., particularly article 2066, which provides:

“But where the things, which form the object of the contract, are separated by a disjunctive, then the obligation is alternative. A promise to deliver a certain thing, or to pay a specified sum of money, is an example of this kind of obligation.”

It is admitted that the optional provision in the contract is not an alternative condition, but it is said it is analogous thereto, and that the discharge of an alternative obligation is effected under the same rules and conditions which govern facultative conditions in France.

Article 2070 of the Civil Code, in speaking of the alternative condition, reduces the obligation to a pure and simple one when one of the two things promised could not be the.subject of that condition:

“The obligation is pure and simple, although contracted in an alternative manner, if one of the two things promised could not be the object of the obligation.”

The distinction between the two conditions is thus stated in Baudry-Lacantinerie et Barde, vol. 13, section 1048, page 20'S, and section 1050:

“Section 1048: We must again carefully distinguish between the alternative obligation and the facultative obligation. This one comprehends but one prestation, but with the faculty in the debtor of liberating himself by accomplishing another prestation. Thus a testator says: ‘I bequeath to Paul ten hectares of ground to be taken from my domain at N. * * * ; however I give to my heir the faculty of discharging himself towards my legatee by paying him instead a sum of 10,000 fr.’ The heir is held to but one prestation, but one thing is due by him and the legatee can demand only that, the ten hectares of land; but the heir has the faculty of discharging himself by paying another thing, the sum of 10,000 fr.”
“Section 1050: We see the difference which exists between the alternative obligation and facultative obligation. In the alternative obligation there are two things equally due, under an alternative, it is true duo sunt in obligatione. In the facultative obligation, on the contrary, but one thing is due, una est in obligatione; the other may be paid in its. place, but it is not due, it is only in Facúltate solutionis; from which the name facultative obligation, which Delvincourt was the first to give to this obligation and which has remained.” (Counsel’s translation.)

If, says counsel, the facultative condition of the contract is void under our law for any reason, the situation is. the same as that which obtains in an alternative obligation when one of the two things promised cannot be delivered, or cannot properly be the subject of the obligation when the contract is not void, but is reduced to a simple obligation for the other object.

"The obligation is pure and simple, although contracted in an alternative manner, if one of the two things promised could not be the object of the obligation.” Civ. Code, art. 2070.
“The alternative obligation becomes pure and simple if one of the things promised be destroyed, even through the fault of the debtor, or can no longer be delivered.” Civ. Code, art. 2071.

Counsel quotes from Dalloz to the same effect. Considering article 1192 of the Code Napoleon (article 2070 of our Code), that author says:

1. “The obligation is not alternative, but pure and simple, if one of the two things promised could not be the subject of an obligation. The obligation becomes again pure and simple, if the obligation contracted in regards to one of the things promised is not valid for all (any) reason other than those indicated in article 1192. In this sense. Larombiere, t. 3, art. 1192, No. 1; Demolombe, t. 26, No. 9; Demante et Colmet de Santerre, 2nd E. t. 5, No. 119 bis; Aiibry et Rau, 4th E. t. 4, sec. 300, text and note 10, p. 45; Laurent t. 17, No. 218; Hue. t. 7, No. 292.”
3. “The word ‘thing’ is taken in this instance in its most comprehensive sense; that of prestation ‘would have been more correct. It may relate, in effect, not only to a corporeal thing, movable or immovable, which the debtor promises to give, but also of the doing of an act or of abstaining of doing something. Demolombe, t. 26, No. 4; Baudry-Lacantinerie et Barde, t. 2, No. 1104.”
5. "Article 1192 applies again * * * when one of the two things promised is not a matter of commerce. Demolombe, t. 26, No. 10; Demante et Colmet de Santerre, 2nd E. t. 5, No. 119, bis; Baudry-Lacantinerie et Barde, above cited.”
6. "Or when one of the two objects is illegal (illicite), against public policy or good morals. * * * Demolombe, t. 26, No. 11, Demante et Colmet de Santerre, 2nd, Ed. t. 5, No. 119 bis; Hue. t. 7, No. 292; Baudry-Lacantinerie et Barden t. 2, No. 1045.” (Counsel’s translation.)

The conclusion which counsel reaches is that, though we have not recognized the facultative condition in Louisiana, yet our codal provisions relative to the alternative condition are appropriate in principle and their application here results in the reducing of the contract sued on to a pure and simple obligation, assuming the optional part of the contract to be impossible, or improper of performance. In other words, since the faculty of substitution reserved by the vendor cannot be exercised, the original object of the contract must nevertheless be carried out, since it is unaffected by any of the objectionable features of the other clause.

This is a most ingenious argument and does credit to counsel’s legal acumen, but we cannot escape the conviction that this contract is unenforceable because of the uncertainty of its object. As to the facultative condition and its analogy to the alternative, we know of no Louisiana authority upon which we might rely for guidance in this interesting but novel field of discussion.

The contract in this case was an agreement to sell, which as is well known, amounts to a sale in so far as to give "to either party a right to claim, recta via, the delivery of the thing.” Girault v. Feucht, 117 La. 276, 41 So. 572, 575.

The most superficial consideration is sufficient to demonstrate the impossibility of obtaining specific performance of the contract. Pretermitting for a moment any consideration of the wide latitude which the vendor is given for substitution of other property, if a demand should be made for the delivery of the ten lots mentioned in the contract, the vendor could object'upon the ground that it had not yet made up its mind on the question of substitution, and that, since there was no limit of time mentioned in the. contract, it could not be compelled to say what property would be offered, or when, and of what shape.

We are of the opinion that this clause is such as to strike the entire contract with nullity upon the ground that the object of the sale is uncertain in defiance of the provisions of the Civil Code on th*. subject, and, that being the case, there is no necessity to consider the other points raised.

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

JANVIER, J.

(dissenting).

“All things not forbidden by law, may legally become the subject of or the motive for contracts. * * *” Giv. Code, art. 1764.

“Nous avons a examiner ici quelles choses peuvent etre l’objet due contrat de vente, —A cet egard, eomme lorsqu’il s’agit de la capacite des personnes, la regie general# c’est le droite, c’est la faculte; la prohibition n’est que l’esception. Ainsi toutes les choses dont la possession, dont 1’usages peut procurer a l’homme quelque avantage ou quelque agreement, peuvent etre vendues, hors celles que la loi a exeeptees.” Dalloz, Repertoire De Legislation, volume 43, Vente, page 147, section 4, Article 471.

From the above it appears that it is the policy of the civil law that contracts voluntarily entered into by persons sui juris shall not be lightly set aside, and that the annulment of an agreement because of some prohibited condition is rather the exception than the rule; that courts should not interfere except where no other course is open to them.

I am unable to see that the contract here under attack is uncertain in subject-matter in the sense contemplated by the provisions of the Code to which my associates refer.

The subject of the contract is ten lots of ground in Hanson place containing a specified number of square feet. The fact that the vendors were given the right to change the location of the ten lots did not make the subject-matter uncertain. It still remained ten lots of ground containing a specified number of square feet and located in that subdivision. If the contract had provided that the vendors, might, at their option, refuse to. deliver the property at all, then the condition would have been potestative because the carrying out of the contract would have depended upon the will of the obligors, but here there was no such option. The contract can be complied with in only one way; by delivering ten lots of ground containing a specified number of square feet. Even if the contract be interpreted as giving to the vendors the right, at their whim, to select and deliver any other ten lots in the subdivision, I see nothing prohibited in that.

I may agree with you that for $10 I will sell you my red dog, or that, if I s.ee fit, I may substitute any one of my white dogs to be selected by me. Can that contract be set aside for uncertainty in the subject-matter? Most assuredly not.

If ten persons authorize one of the ten to purchase 100 acres in some desirable neighborhood and to divide the 100 acres, into ten tracts of 10 acres each, under an agreement that they will draw lots for the respective tracts, why may not such a contract be entered into? I see nothing illegal or prohibited in that. Each has agreed that he will put up his share of the necessary money to purchase the tract, and just because it is not certain in advance that A will get any particular 10 acres, or that B will get any ■ particular other 10 acres, I cannot see why the contract should not be enforced and the person authorized to purchase the property could most assuredly enforce collection from A, B, C, and the others of the amount agreed to be paid. What is the difference between that situation and the one presented here? Stafford, Derbes & Roy were the owners of a certain tract of land. Dr. Salles agreed to buy a certain ten lots and he authorized Stafford, Derbes & Roy to substitute ten other lots to be selected by them. I cannot see anything wrong with that.

To state the whole case as I see it, the defendants, Stafford, Derbes & Roy, agreed in writing to sell to the plaintiff, Dr. Salles, the following described property: “Ten lots of ground, numbered 17 to 26, inclusive, in Square No. 2, Hanson Place, Jefferson Parish.” The price was $2,000, of which the plaintiff, Salles, paid cash $304, and for the balance he furnished three notes of $432 each, and one for $400, all payable in monthly installments of $36.

On the complete payment of all of said notes, the vendors, Stafford, Derbes & Roy, were to deliver to the purchaser, Salles, a complete notarial act of sale to said ten lots.

Stamped across the face of this agreement of sale were the following words:

“It is understood that Stafford, Derbes & Roy, Inc. may, at their discretion, cause a new map or re-survey to be made of the property herein sold and that such map or survey, if and when made, may show a change of position and/or location of property herein sold, provided, however, same number of square feet shown in same square or plot shall be retained.
“It is further understood and agreed that Stafford, Derbes & Roy, Inc. may at their discretion, make, apply for and obtain dedication of streets, roadways, highways,” etc.

In pursuance of this agreement, the plaintiff, Salles, paid on account the sum of $1,681.86. It is this sum which he now seeks to recover. There was judgment for plaintiff, and defendant has appealed.

As the district court passed upon only one ground of nullity, and as that is the only one discussed in the majority opinion, I shall confine myself to a consideration of that issue which is that the agreement of sale was and is a nullity for “uncertainty in the thing sold.”

I fail to perceive any force in this objection. The lots the defendants agreed to sell, and the plaintiff promised to buy, are specifically designated and described as “lots 17 to 26 inclusive, in Square 2, Hanson Place, Jefferson Parish.” These lots might have been more completely described for identification, but their location and dimension could have been ascertained by reference to the plat of Hanson place, since “that is certain which can be made certain.”

It is true that the rubber stamp across the agreement of sale gave the right to the vendors to “cause a new map or resurvey to be made of the property herein sold and that such map or survey, if and when made, may show a change of position and of location of property herein sold, provided, however, same number of square feet shown in same square or plot shall be retained.” But that was neither a facultative nor a potestative condition relative to the performance of the agreement, but was only a condition as to the execution of it. For it was stipulated in said agreement that on the final payment of the notes or of the price, Stafford, Derbes & Roy were to deliver to Salles a formal notarial deed to the ten lots designated in the agreement. There was no uncertainty or ambiguity in this agreement. Stafford, Derbes & Roy could not refuse to execute this promise unless they alleged and proved that they had “caused a new map or re-survey to be made of the property herein sold” and also, if made, that it “showed a change of position and of location of the property herein sold,” and, again, that “the same number of square feet shown in same square or plot shall be retained.” It ■ is evident, therefore, that the only effect of that ’*ubber stamp was to authorize the defendants to perform their contract' even if the new survey changed the position or location of ■the ten lots 17 to 27. This rubber stamp created no uncertainty in the agreement, on the contrary, confirmed its certainty and binding effect by authorizing the defendants to execute it by tendering ten lots differently located.

The cases quoted by the plaintiff of Chatham-Trenary Land Co. v. Swigart, 220 Mich. 137, 189 N. W. 1000 and Barnes v. Cowan, 147 Ga. 478, 94 S. E. 564, have no application, for the reason that in neither one of these cases was the property intended to be sold, identified, or susceptible of location.

I see no force in the argument that the vendors might substitute star-shaped or circular lots. Courts may always prohibit absurd interpretations of contracts. Lots of ground must have reasonable shapes and the expression “ten lots of ground” means ten lots of reasonable shape. This contract was entered into by persons sui juris, and with their eyes open. If the real estate in that locality had enhanced in value, I doubt not that we would not now be vexing our minds with this controversy.

I respectfully dissent.