Volume 12 — Teissier's Louisiana Reports

<p>Syllabus.</p> <p>1. Even though the averments of a petition are insufficient in charging a contractual liability on the part of defendant, still the exception of no cause of action should not be maintained, where independently of these averments, the allegations of the petition are ample to sustain a cause of action ex delicto.</p> <p>2. The defense of independent contractor is one of law and of fact, and its determination depends upon the terms of the contract and the manner in which it is executed.</p> <p>3. The course of prescription of a claim against a foreign corporation is interrupted neither by service upon a person who is’unauthorized by law. or by contract to receive citation upon its behalf, nor by service in the mode prescribed by Act 23 of 1900, the provisions of- which have been held unconstitutional.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 83,746. Hon. T. C. W. Ellis, Judg’d.</p>

<p>Syllabus.</p> <p>The meaning of Paragraph 4, Section 5, Act 203 of 1898, is that a sheriff (Parish of Orleans excepted) is entitled to receive for recovering fugitives from justice, a single fee of ten cents per mile going and coming (not ten cents per mile for each deputy) and five cents per mile, returning, for each fugitive conveyed, in addition to all actual expenses incurred (including railroad fare).</p>

<p>On Rehearing.</p> <p>Appeal from the Civil District Court, Parish of Orleans, Division “D,” No. 101,089. Hon. Porter Parker, Judge.</p>

<p>Appeal from the 'Civil District Court for the Parish of Orleians, Division “C,” No. 104,477. Hon. E. K. Skinner, . Judge.</p>

<p>Appeal from tlie Twenty-eigthth Judicial District Court, Parish, of S-t. John the Baptist, No. 156. Hon. P. E‘. Edrington, Judge.</p>

<p>Syllabus.</p> <p>When a suit is instituted, prior to July 9th, 1914, in the name of a corporation,, appearing through one of its officers, and the authority of the officer to represent the corporation is denied he must prove that he had special authorization from the board of directors, or that such authority was conferred by the charter, or that his action was ratified by the board of directors.</p>

<p>Appeal from the 28th Judicial District Court for the Parish of St. John the Baptist, No. 379. Honorable P. E. Edrington, Judge-</p>

<p>■Appeal from the Civil District Court, Parish of Orleans, Division “A,” No. 100,794. Hon. T. '0. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>When the testimony raises a very strong presumption that one of the defendants was a member of the defendant partnership, and he is present at the trial and fails to take the stand to deny it, his silence will condemn him.</p> <p>Mechanics associated together as a company to carry on the business of plumbers are ordinary and not commercial partners, and as such are liable only jointly and not solidarity even though their contracts require them as an incident to their business to furnish supplies.</p>

<p>Syllabus.</p> <p>Involves only issues of fact.</p>

<p>Syllabus.</p> <p>'Between equally credible witnesses the presumption is in favor of the one who swears affirmatively.</p>

<p>Syllabus.</p> <p>A debtor’s suit for the recovery of damages for slander and malicious prosecution is not exempt from seizure under execution issued by his judgment creditor.</p>

<p>Appeal from the Civil District ’Court for the Parish of Orleans, Division “A,” No. 106,090. Honorable T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>Forfeitures for non-payment of taxes assessed in the name of dead persons and persons not the owners of the property are void and are not cured by the prescription of. three years.</p>

<p>Appeal from the Civil District 'Court, Parish of Orleans, Division “D,” No. 99,312. Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>1. Under the Bankruptcy Law the only life insurance policies of the bankrupt which pass to his trustee are those specified in the proviso to subdivision 5 of Section 70 of said Act.</p> <p>2. The.phrase in said proviso, “payable to himself, his estate or personal representatives” qualifies the word “policy” and does not relate to the phrase “cash surrender value,” and consequently it is only those policies of the bankrupt which are payable to himself, his estate or personal representatives and which have a cash surrender value, that pass to his trustee in bankruptcy.</p>

<p>Syllabus.</p> <p>Questions of fact only are involved.</p>

<p>Appeal from the Civil District 'Court, Parish, of Orleans, Division “A,” No. 104,914. Honorable T. C- W'. Ellis, Judge.</p>

<p>Syllabus.</p> <p>The sale of real estate for taxes advertised as the property of “Widow Nathan Hart” who never owned it, is void, when the real estate was assessed at the date of assessment in the name of its owner “Widow Matthew Hare,” and belonged at the date of sale to some one else.</p> <p>A purchaser in good faith at tax sale owes rents and interest thereon only from the date of suit against him, and is entitled to recover from the plaintiff the price paid by him with 20 per cent, and all taxes paid by him for years anterior to his purchase and for years for which he is' charged with rents, and the sum paid by him for repairs, improvements and other necessary expenses incurred by him, and interest thereon, but not for insurance.</p>

<p>Petition for Writ of Habeas Corpus*</p>

<p>Syllabus.</p> <p>The manner in which the parties have acted under their contract is better indication of their common intent than their subsequent and conflicting testimony in relation thereto.</p>

<p>Appeal from the 28th Judicial District 'Court, Parish of Jefferson, Honorable P. E. Edrington, Judge.</p>

<p>Syllabus.</p> <p>The franchise of the Street Railroad Company obligates it to “Keep" in good order and repair” all that portion of the street between its tracks, besides 18 inches on either side. Upon the petition of the property owners the city removed entirely all the square block pavement existing at the time the franchise to the railroad company was granted and replaced it with Belgian blocks pavement. Held: That inasmuch as the railroad company, under its contract, could not have been required to do the new paving, it could not therefore be made to pay for the cost of it.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 105,430. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division-“A,” No. 105,596. Honorable T. C. W. Ellis, Judge;</p>

<p>Syllabus.</p> <p>The surety on a bond releasing property provisionally seized must show that the property released and which he tenders in discharge of his obligation is free from all liens and privileges.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 107,876. Honorable T. C. W. Ellis,’Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 91,041. Honorable T. '0. W- Ellis, Judge.</p>

<p>Syllabus.</p> <p>1. When machinery ceases to be made use of in carrying on a plantation, and is sold separately from the plantation it loses its character of immovable by destination, and resumes its natural character of a movable.</p> <p>2. To affect third persons the purchaser of movables must be put in possession thereof, but no law requires that he should remove them; if subsequent to the delivery the movable remain with the vendor under a precarious title, the purchaser is bound to prove that the sale was real and bona fide.</p>

<p>On Motion to Dismiss Appeal.</p> <p>Appeal from the 27th Judicial District 'Court, Parish of St. James, No. 289.0; Honorable Charles T. Wortham, Judge.</p> <p>On The Merits.</p>

<p>Syllabus.</p> <p>The judgment of the trial Judge will be affirmed where the amount allowed by him to an attorney at law for professional services is not manifestly insufficient or excessive.</p>

<p>Appeal from the 27th Judicial District Court, Parish of St. James. Honorable Charles T. Wortham, Judge.</p> <p>On Application for Rehearing.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “A,” No- 107,155. Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 107,338. Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 107,371. Honorable G. H. Theard, Judge.</p>

<p>Syllabus.</p> <p>When the judgment of the trial Court on questions of fact is not manifestly erroneous it will be affirmed.</p>

<p>Syllabus,</p> <p>A suit may be maintained upon a building contract although the work may be defective, and the remedy of defendant in such a ease is for a reduction of the price agreed upon to the extent of the damages sustained by reason of the defective performance of the work. E. C. G., 2769.</p>

<p>Appeal from the 'Civil District Court for the Parish of Orleans, Division “A,” No. 104,790. Honorable T. O. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>One cannot enjoin the seizure and sale of property which he does not own and in which he has no interest.</p> <p>The wife has no authority to enjoin the seizure and sale of property which belongs to the community.</p> <p>The wife during community can purchase property in her own name and make it paraphernal. But in order to do so she must satisfy two conditions. In a sale where cash has been paid by her, she must prove that the payment was made with paraphernal funds. In a credit sale she must show that her revenues from the property purchased and from other sources will justify a reasonable expectation that they will be sufficient to enable her to meet the deferred payments.</p> <p>In the absence of, such proof the purchase is for account of the community and the husband alone, and not the wife, is liable for the notes furnished by the wife for the credit portion of the price.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “B,” No. 104,477. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “!C,” No. 83,881. Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “A,” No. 86,674. Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District 'Court for the Parish of Orleans, Division “D,” No. 95,919. Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>An unliquidated claim for damages cannot be set off against a liquidated claim upon a contract, where the parties reside in the same parish and the claim for damages does not arise out of the contract sued on.</p>

<p>Syllabus.</p> <p>1. A judgment, even though confessed, is prima facie evidence of the debt and privilege recognized therein.</p> <p>2. A cause of action cannot be set forth by stating merely a proposition of law, but the' facts, must be stated from which such conclusion of law is drawn.</p>

<p>Syllabus,</p> <p>When goods are injured while in transit in the possession of the carrier the measure of damages is the difference between their 'v§Iue in their damaged state, to be ascertained by an auction sale, and’their value in good order at the port of destination.</p> <p>When the consignee refuses to accept delivery of the goods, it becomes the duty of the carrier to properly care for them. If the goods are perishable, or if damaged, they may grow worse by delay, the carrier must sell them.</p> <p>Judgment reversed-; judgment now rendered in favor of plaintiff for $568.95 with costs in both Courts.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division ££E,” No. 108,532. Honorable G. H. Theard, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “B,” No. 105,995. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 105,023. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 100,834. Honorable Gr. H. Theard, Judge.</p>

<p>Syllabus.</p> <p>An appeal lies from a judgment of the District Court dismissing a rule having for its object to carry out and give vitality and effectiveness to a judgment of this Court.</p> <p>Syllabus.</p> <p>A tax title and the right of possession under it will not oe invested by a judgment annulling the tax adjudication upon which such title and right of possession is founded, unless said judgment has been rendered effective in the manner prescribed by Article 233 of the Constitution, that is, by the reimbursement of the price of the adjudication, the taxes paid and interest, etc.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Divsion “D,” No. 106,893. Honorable Porter Parker Judge.</p>

<p>Syllabus.</p> <p>Material erasures, cancellations or other alterations appearing upon the face of an instrument are presumed, to have been made subsequent to its execution and delivery and without authority. The party relying upon such an instrument assumes the burden of establishing that the alterations were made under circumstances that would render them effective.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 106,644. Honorable Gr. H. Theard, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 107,143. Honorable Gr. H. Theard, Judge.</p>

<p>Appeal from the ’Civil District Court for the Parish of Orleans, Division “D,” No. 105,070. Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 102,905. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 94,977. ' Honorable P. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 105,695. Honorable T. C. ~W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Divisions “B,” and “E,” No. 104,175. Honorables G. H. Theard and P. D. King, Judges.</p>

<p>Syllabus.</p> <p>One who sustains no injury to his private rights — no special damage not suffered by the public generally — by reason of another unauthorized appropriation to private use of a ■ portion of the shores and bed of Lake Pontchartrain, title to which is vested in the State for public use, is without authority to maintain an action 'to enjoin such appropriation.</p>

<p>Syllabus.</p> <p>One who is neither owner, nor in possession as owner of a contiguous estate, nor is vested with a real right therein, is without interest or authority to maintain an action • in boundary.</p>

<p>Syllabus.</p> <p>1. The rule that parole evidence shall not be admitted to contradict or vary the terms of a written instrument, applies only in controversies between parties to the instrument, and not in controversies between a party thereto and a third person.</p> <p>2. The rule that parole evidence shall not be admitted to prove a promise to pay the debt of a third person, has no application where the original debtor is discharged and a new debtor accepted in his- stead.</p>

<p>Appeal from the 29th Judicial District Court, Parish of Plaquemines. Honorable R. E. Hingle, Judge.</p>

<p>Syllabus.</p> <p>In considering whether a petition discloses a cause of action all the allegations of the petition must be taken as true.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 100,533. Honorable F. D. King, Judge.</p>

<p>Syllabus.</p> <p>One who has a lien only in the insured property has no claim to the insurance money realized by the insured in the event . of a loss of the property, for a claim on the insurance money can only arise out of a contract.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “D,” No. 103,607. Honorable Porter ' Parker, Judge.</p>

<p>Syllabus.</p> <p>1. Where the original judgment itself shows affirmatively that the same was never signed, thus contradicting a recital in the minutes that such judgment was signed, such physical fact, apparent on the face of the* record, must prevail over the minutes.</p> <p>2. The Court will notice ex officio that a final judgment is not signed, and dismiss an appeal therefrom ex proprio motu.</p> <p>3. As no appeal lies from a final judgment until signed, "it follows that an appeal may be taken therefrom by motion, without citation, at the same term at which such judgment was signed, even though rendered at a prior term of Court.</p>

<p>Syllabus.</p> <p>1. . Where two vehicles, traveling towards each other at a right angle, approach an intersection, the rights of each are equal, and accordingly each should exercise reasonable care to avoid injury to the other.</p> <p>2. Where, in such case, a collision occurs through the joint or combined negligence of both parties, no right of action accrues for the injuries sustained.</p>

<p>Syllabus.</p> <p>Involves only issues of fact.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “O',” No. 102,694. Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 108,288. Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “B,” No. 101,194. Honorable F. D. King, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 104,587. Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division ‘ £B, ’ ’ No. 105,301. Honorable F. D. King, Judge.</p>

<p>Syllabus.</p> <p>1. Signatures to obligations are not mere ornaments. If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves; him to have the instrument read to him and listen attentively whilst this is being done.</p> <p>2. One who seeks to avoid the effect of his written obligation upon the ground that its contents have been misrepresented to him, must support his claim by something more appreciable than his own uncorroborated testimony.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “A,” No. 107,785. Honorable T. C- W. Ellis, J udge.</p>

<p>Appeal from the Civil District’ Court for the Parish of Orleans, Division “D,” No. 102,155. Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>Where the lower Court dismissed an appeal for insufficiency of the surety, a motion in this Court to dismiss the appeal, accompanied by the judgment of the lower Court to that effect, will prevail in the absence of any indication that the ruling of the lower Court has, in a manner provided by law, been brought up for review.</p>

<p>On Merits.</p> <p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No 108,748. Honorable F. D. King, Judge.</p> <p>On Rule Against Clerk.</p>

<p>Syllabus.</p> <p>1. Although as a general rule the silence of a judgment as to some demands where others are passed upon between the same parties is equivalent to a rejection of the demands not passed upon, nevertheless this is a mere rule of interpretation and has no application where to enforce it would do violence to the rest of the judgment.</p> <p>2. It is of the essence of a plea of res judicata that the former judgment so pleaded have been rendered between the same parties.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “D,” No. 107,069. Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 109,823. Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 106,428. Honorable T. C. W. Ellis, Judge. ,</p>

<p>Syllabus.</p> <p>Punitory damages may be imposed where the act, though not prompted by ill feeling or an intent to injure, is the result of gross carelessness or a reckless indifference to the rights of others.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “C,” No. 108,070. Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>The burden of proof is upon the maker of a note to establish the want of consideration thereof.</p> <p>When the unsupported testimony of plaintiff is contradicted by the testimony of defendant, and the credibility of neither has been attacked, the testimony of the plaintiff must be considered insufficient to establish a fact.</p>

<p>Syllabus.</p> <p>Act 229 of 1910 permits Appellate Courts to tax costs equitably between the parties.</p>

<p>Syllabus.</p> <p>One who purchases merchandise is presumed to act for himself, and is personally liable because credit is given to him. If he would relieve himself of responsibility on the ground that he was acting as the agent of another, he must allege and prove, with reasonable certainty, that at the time of the sale he communicated to the vendor the fact of his agency, and that he was not purchasing for himself but as the agent of another.</p> <p>The rule is more rigidly applied when the alleged principal is a non-resident.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 107,881. Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,’’ No. 106,196. Honorable F. D. King, Judge.</p>

<p>Appeal from the ’Civil District Court, Parish of Orleans, Division “E,” No. 108,639. Honorable "Gr. H. Theard, Judge.</p>

<p>Appeal .from the Civil District Court, Parish of Orleans, Division “D,” No. 103,028. Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>Wholesale liquor establishments that likewise make sales at retail in quantities of less than five gallons, are liable for a license under Section 1 of Act 176 of 1908. The license is imposed without regard to the character of the) place where the sales are made.</p>

<p>Syllabus.</p> <p>Involves only issues of fact.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “B,” No. 104,684. Honorable P. D. King, Judge.</p>

<p>Syllabus.</p> <p>1. The proposition that one citizen of this State may contract a debt towards another, and discharge that debt by the simple process of betaking himself to parts unknown during the time necessary for prescription to run, is one which finds no support either in law or in equity.</p> <p>2. Attorneys at law employed by a wife to obtain a separation or divorce from her husband, and who do obtain the same, may recover -from her upon quantum meruit the value of their services.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 106,677. Honorable Porter Parker, Judge.</p>

<p>Appeal from the 28th Judicial District Court, for the Parish of Jefferson. Honorable P. E. Edrington, Judge.</p>

<p>Syllabus.</p> <p>As a general rule the manager of a corporation has no authority to lease the property oí the corporation unless such authority is conferred upon him by the charter or by the bylaws, or by resolution of the board of directors.</p> <p>When parties agree to lease property with the intention of reducing the lease to writing, either party may recede before signing.</p>

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1642. Plonorable P. E. Edrington, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 106,922. Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “A,’’ No. 107,413. Honorable T. 'C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>Involves only issues of fact.</p>

<p>Appeal from the Civil District ’Court for the Parish of Orleans, Division “E,” No. 108,045. Honorable G. H. Thaard, Judge.</p>

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1831. Honorable P. E. Edrington, Judge.</p>

<p>Syllabus.</p> <p>The dilatory exception of prematurity pleaded for the first time in an answer filed after a judgment by default comes -too late.</p>

<p>Syllabus.</p> <p>One who possesses for ten years, in good faith, as owner, under a • -' deed translative of title, becomes in fact and in law, the real owner of the property thus possessed, and may sell, or otherwise dispo'se of such property as he pleases.</p>

<p>Syllabus.</p> <p>If a public sale be voidable, the adjudicatee cannot be compelled against his will to comply with the adjudication, even though the vices in the sale be subsequently cured.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 105,455. Honorable P. D. King, Judge.</p>

<p>Syllabus.</p> <p>Plaintiff must prove the allegation essential to his recovery, or . judgment will go against him.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 104,448. Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>A contractor executing a contract of public improvement must so prosecute the work as to cause no unnecessary damage to the property of others. And where it is.shown that by additional precaution in the conduct of the work the damage could have been averted, the contractor can relieve himself from liability only by proving that it would be unreasonable to require him to adopt these precautions.</p>

<p>Syllabus.</p> <p>One who under the color of sale and resale, or otherwise, lends money upon deposit of corporeal property, with sufficient frequency, at such rates of interest, and to such a class of borrowers, as shows that the loans are made as a strict matter of business, and not occasionally, or as a mere friendly accommodation to the borrower, is a “pawn-broker” within the meaning of the revenue license law.</p>

<p>Appeal from the 'Civil District Court, Parish of 'Orleans, Division “C,’’ No. 108,552. Honorable Ei K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>1. Commutative contracts are those in which what is done, given or promised by one party is considered as equivalent to, or a consideration for, what is done, given or promised the other. C. C., 1768.</p> <p>2. A contract containing mutual covenants shall be presumed to be commutative unless the contrary be expressed. C. C., 1770.</p>

<p>Syllabus.</p> <p>An answer to an appeal which prays for an amendment of the judgment, waives the motion to dismiss.</p>