13 Tiess.

Volume 13 — Teissier's Louisiana Reports

141 opinions

13 Tiess. 3Glennon v. Holmes (1915)
Appeal from the. Civil District Court, Parish of Orleans, Division “D,’’ No. 85,018. Honorable Porter Parker, Judge.
13 Tiess. 5Miller-Goll Manufacturing Co. v. Metropolitan Building Co. (1915)
Syllabus. No agreement for work exceeding five hundred dollars which has not been reduced to writing and recorded according to law enjoys a privilege either in favor of the original con. tractor or in favor of any material man upon the building constructed. If the contractor has no privilege the materialman has none, because he acquires only such rights as the contractor has.- It is only the materialman who has furnished directly to the owner who has a privilege. In order that a privilege shall have a preference over an existing mortgage it must be recorded within the time prescribed by law.
13 Tiess. 10De Reyna v. New Orleans Railway & Light Co. (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division "B, ” No. 101,836. Honorable F. D. King, Judge.
13 Tiess. 13Christina v. Gautreaux (1915)
Appeal from the 28th Judicial District Court, Parish of Jefferson. Honorable P. E. Edrington, Judge.
13 Tiess. 16Central Glass Co. v. German American Insurance (1916)
Syllabus. Experts and auditors appointed by Courts in the eases provided by law are entitled to such compensation for their services as the Court may determine, and such compensation forms part of the costs, and must be paid by the party east: There is an “esprit 'ie corps” prevailing among men of the same profession which prompts them to value their services at the highest possible value, so that the truth is usually found in the lowest estimate. Where the investigation involved an amount of $33,200 and the time consumed was about five months, a fee of $1,800 is considered a sufficient compensation for the services rendered by an expert and auditor appointed by the Court.
13 Tiess. 25Rouprich v. Cazes (1915)
Syllabus. Involves only issues of fact.
13 Tiess. 27Louisiana Meadows Co. v. Commercial Security Co. (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “C.” No. 108,503. Honorable E. K. Skinner, Judge.
13 Tiess. 28Rosomano v. Kearns (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 104,401. Honorable E. K. Skinner, Judge.
13 Tiess. 31Singleton v. Singer (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 110,478. Honorable Porter Parker, Judge.
13 Tiess. 33Standard Electric Construction Co. v. Federal Sign System (Electric) (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 106,783. Honorable P. D. King, Judge.
13 Tiess. 35Brady v. Fidelity Mutual Life Ass'n (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,’’ No. 111,083. Honorable E. K. Skinner, Judge.
13 Tiess. 40Merchants' National Bank v. Whitney Central National Bank (1915)
Syllabus. 1. The conditions under which a bank agrees to collect checks payable outside of its domicile, providing that it will forward such checks to banks out of this city, but assumes no responsibility for the negligence of such banks, and that in the absence of instructions to the contrary cheeks will be sent to the bank on which they are drawn, are law unto the parties depositing cheeks for collection. 2. The delay within which a-bank, charged with the collection of a check, must notify the depositor of the checks that the bank out of this city has not remitted the amount of a check forwarded for collection depends upon surrounding circumstances. A delay of eleven days from the day the check was deposited for collection in this case is not considered too long, when there was no occasion for apprehension and the bank was using the usual means for effecting the collection. 3. A plaintiff must make his claim certain; to make it probable is not sufficient.
13 Tiess. 50Roth v. Fairchild Auto Co. (1915)
Syllabus. Questions of fact only are involved.
13 Tiess. 52Tompkins v. Perrin (1916)
Whatever’ may be the liability of joint tenants when nothing is said on that subject, yet when the parties intend to limit their liability to the landlord and the latter consents thereto, the contract, and not the general rule, is the law between the parties. Syllabus.
13 Tiess. 55Auto Repair & Garage Co. v. New Orleans Railway & Light Co. (1915)
Syllabus. Involves only issues of fact.
13 Tiess. 57Reinecke v. Bernhardt (1916)
Appeal-from the Civil District Court for the Parish of Orleans, Division “A,” No, 109,614. Honorable T. 'C. W. Ellis, Judge.
13 Tiess. 60Rea v. Riggs (1915)
Syllabus. For the reasons given by this Court in this ease and in the ease of Wolf vs. Thomas, No. 6511, this day decided, it is ordered that the judgment herein be amended and affirmed.
13 Tiess. 68O'Neil v. Morris (1915)
Syllabus. The judgment of the lower Court on questions of fact is presumed to be correct and will be affirmed on appeal unless it is shown to be manifestly erroneous. "When all the facts of a transaction are more peculiarly within the knowledge of one side and the evidence is more within its power, the burden of proof will rest upon it. When suspicion is cast upon the actions of an agent it is his duty to explain and establish his innocence.
13 Tiess. 72State ex rel. Eaton v. Fitzpatrick (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 111,352. Honorable T. ’O. W. Ellis, Judge.
13 Tiess. 74Dervis v. Schick (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 108,756. Honorable Gr. H. Theard, Judge.
13 Tiess. 76National Surety Co. v. Crescent City Manufacturing Co. (1915)
Appeal.from the Civil District Court for the Parish of Orleans, Division “A,” No. 108,596. Honorable T. C. W. Ellis, Judge.
13 Tiess. 78Block v. Liquidators Henry Block Co. (1916)
110,074. Honorable Porter Parker, Judge. Per Curiam. In this matter, Judge Godchaux having recused himself, and the other judges being unable to agree, it is ordered that this case be reassigned for argument, and that Honorable Fred. D. King, Judge of the Civil District Court, be called in to hear said cause and sit as the third member of the Court. Order rendered, January 4th, 1916.
13 Tiess. 81McaDams v. Wells, Fargo & Co. (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 103,438. Honorable Porter Parker, Judge.
13 Tiess. 85Dreibholz v. Fisher (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No- 105,391. Honorable E. K. Skinner, Judge.
13 Tiess. 90Succession of McLain (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 107,585. Honorable G. H. Theard, Judge.
13 Tiess. 94Mohr v. Swoop (1915)
Syllabus. An architect who has performed part of his contract and is prevented from completing.it by the act of the other party, is entitled to compensation for the work actually done. Courts are not bound by any schedule of compensation it may have pleased the American Institute of Architects to adopt, especially when the plaintiff architect is not a member of the Institute and the owner is not shown to have any knowledge of its rates.
13 Tiess. 99Conn v. United States Fidelity & Guaranty Co. (1916)
Syllabus. 1. The surety upon a contractor’s bond under Act 167 o£ 1912 when called into a concursus for the purpose of contesting the claims urged against the property, occupies a position akin to that of a personal warrantor towards the owner, and citation by the owner alone sufficies for a judgment establishing the.amount of such claims and condemning the surety to deposit in Court a sum sufficient to discharge such claims and release the property. 2. A surety who binds himself for a fixed sum cannot be condemned to pay more.
13 Tiess. 104Lindsey v. Amrheim (1915)
Syllabus. 1. A succession is vacant when no one elaims it, or when the heirs áre unknown or have renounced it. G. C-, 1095. 2. Prescription runs against a vacant succession, even though no curator has been appointed. G. G., 3526.
13 Tiess. 105Columbia Brewing Co. v. Dauterive (1916)
Syllabus. The testimony of two defendants that certain writing on the back of a note endorsed by them was not there at the time they affixed their signatures, will not prevail against the testimony of two witnesses for the plaintiff and other corroborating circumstances.
13 Tiess. 108Lejeune v. New Orleans Land Co. (1916)
Syllabus. 1. Although the absence from Court during a legislative session of an attorney at law who is a member of the General Assembly constitutes a peremptory cause for' a continuance, the failure of a party at interest to timely apply on that ground for a continuance, or thereafter for a new trial, though" having ample time to do the latter after the ad- / journment of the Legislature, is a waiver of the right. 2. Nor will that ground, coupled with the further complaint that incompetent evidence was admitted in the trial Court, appeal to the equitable power of this Court to remand for a new trial, when there has been . sufficient legal evidence, properly received, to sustain the judgment, and the defendant and appellant fails to suggest or indicate that he has a just, serious or available defense. Syllabus. On Rehearng. Act 196 of 1912, p. 383, providing for the continuance of eases in which attorneys are employed who are members of the 'Legislature confers only a privilege or a right which may be waived by the party in whose favor it is established. Parol testimony may be given of the contents of an instrument lost or destroyed. The loss of an instrument must. have been advertised when plaintiff demands its enforcement, but not when it is offered merely to establish a collateral fact. '
13 Tiess. 116Vaughn v. New Orleans Railway & Light Co. (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 107,316. Honorable Porter Parker, Judge. ■
13 Tiess. 121Twichell v. Buell (1916)
Syllabus. 1. A citation addressed to the wife and to the husband to authorize her and served upon the wife in -person at then-domicile is effective as a citation of the husband. G. P,, 182, 192. 2: Where the wife and her husband to authorize her are both duly cited, and the wife alone appears, the husband’s authorization for the wife to stand in judgment will be presumed. G. P., 118. 3. The phrase “living apart from her husband, though not separated by judgment of Court”- (Act 170 of 1912; R. C. C., 2334) does not refer to a situation where the spouses are separated by the mere temporary absence of the husband from his home occasioned by- the demands of his business.
13 Tiess. 124Cabiro v. Bradford (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “D,” No. 111,789. Honorable Porter Parker, Judge.
13 Tiess. 128Genella v. McClure (1916)
Syllabus. 1. "Where separate demands are presented in the same petition, acquiescence in the judgment as to one demand does not affect the right of appeal as to the other. 2. A contract is concluded by an offer on one side and an acceptance on the other. 3.- A prospective purchaser of real estate is entitled to a reasonable time in which to examine the title, obtain certificates, and complete the act of sale. 4. Any preliminary agreement for the sale of real estate, i. e., any agreement which does not purport to transfer the property at once and ■ irrevocably, without further formality, is a promise of sale; and a deposit made at that time a mere forfeit, i. e., earnest money within the meaning of C. C., 2463.
13 Tiess. 134Greco v. Millano (1916)
Appeal from the Civil District 'Court for the Parish of Orleans, Division ££E,” No. 117,770. Honorable G. H. Theard, Judge.
13 Tiess. 142Mule v. Pajewski (1916)
Syllabus. 1. Earnest is a sum of money which one of the contracting parties gives to the other at the time of the contract, and is presumed to be a forfeit in the absence of evidence to the contrary. 2. A forfeit is a penalty, and a contract with a forfeit to bind it, is simply a contract with a penal clause. 3. Where the principal contract is not binding, the penal clause is' not enforceable. -
13 Tiess. 144Quaker Realty Co. v. O'Rourke (1915)
Syllabus. "Where property has been validly forfeited or sold for taxes to the State, the tax debtor can raise no objection to a sale by ■ the State to a third party which the State itself could nor set up.
13 Tiess. 148State ex rel. Marrero v. Fortmeyer (1915)
Syllabus. 1. Where the law contemplates that an elected officer shall not enter upon the discharge of his duties until he receives a commission and further provides that no commission shall issue to him until thirty days after .his election, the term of such officer does not begin until thirty days after his election. 2. Regular terms of office succeed each other in rotation without intermission, the one expiring when the other begins, and vice versa.
13 Tiess. 156Robinson v. Pisciotto (1916)
Syllabus. A seller, who has retained the custody and enjoyment of the property, cannot recover the price nor the expenses incident to his possession, without producing or accounting foi the subject-matter of the sale as well as the revenues and profits it may have yielded during his tenure.
13 Tiess. 159State ex rel. McGill v. Renshaw (1915)
Syllabus. In a proceeding by mandamus to compel the granting of an appeal, the question is not as to the correctness of the judgment complained of, but whether or not the relator may be adversely affected thereby.
13 Tiess. 161Couret v. Hopkins-Rhodes & Co. (1916)
Appeal from the Civil District .'Court for the Parish of Orleans, Division “B,” No. 104,219. Honorable F. D. King, Judge.
13 Tiess. 165Pairque v. Ortolano (1916)
Syllabus. The plaintiff in a redhibitory action must prove that the vice existed before and at the time of sale when the vice has manifested after three days. The Supreme Court has repeatedly held that the conjectual opinion of physicians as to the existence and duration of diseases founded on a post mortem examination were not by themselves full proof of the fact.
13 Tiess. 170Barrow v. La Salle Realty Co. (1916)
Appeal from the Civil District 'Court for the Parish of' Orleans, Divisions “B” and “D,” Nos. 94,967, 94,892. Honorables P. D. King and Porter Parker, Judges.
13 Tiess. 174Hotel Grunewald Co. v. Brakenridge (1916)
Syllabus. Money belonging to a prisoner and taken from Ms person and held by the criminal authorities effecting Ms arrest, is in legal contemplation still upon his person except for the purposes for which it was impounded; and it is therefore as free from the pursuit of his creditors through the process of attachment or garnishment as though it had remained In fact upon his person.
13 Tiess. 176Wolf v. Thomas (1916)
Syllabus. 1. The transf-erree of a note cannot stand by and see the -drawer of the note make partial payments of that note for a series of years to a former owner and transferror whom he believes to De still the owner, and afterwards 'repudiate said payments and claim the whole amount of the note from the maker. 2. A legal tender although unaccompanied by consignment stops interest. 3. Plaintiff in executory process is not entitled to attorney’s fees or costs when the writ issues after l-egal tender and without necessity.
13 Tiess. 185State ex rel. Centani v. Marrero (1915)
Appeal from the 28th Judicial District Court for the Parish of Jefferson, No. 1929. Honorable P. E. Edrington, Judge.
13 Tiess. 197State ex rel. Bourgeois v. Marrero (1915)
Appeal from the 28th. Judicial District Court for the Parish of Jefferson. Honorable P. E. Edrington, Judge.
13 Tiess. 198State ex rel. Brady v. Marrero (1915)
Appeal from the 28th Judicial District Court for the Parish of Jefferson. Honorable P. E. Edrington, Judge.
13 Tiess. 199Riecks v. Mednikow, Doing Business, Etc. (1916)
Syllabus. Questions of fact only are involved.
13 Tiess. 201Steinel v. Fagot (1916)
Syllabus. In the absence of evidence to the contrary, the price of an article of merchandise is chargeable to the persons to whom it is delivered and by whom it is used.
13 Tiess. 203Hotard v. Fey (1916)
Appeal from the 27th Judicial District 'Court, Parish of St. James, No. 2922. Honorable Charles T. Wortham, Judge.
13 Tiess. 204Estate of Feahney v. Lundgren (1916)
Syllabus. The purchaser of a stock of goods who fails to receive from his vendor a sworn written list of his creditors becomes accountable to such creditors for all the goods that have come into his possession under such a sale or for their value. Section 6 of Act 114 of 1912 is not a violation of Article 31 of the Constitution. Judgment reversed and judgment for plaintiff as prayed for.
13 Tiess. 209State ex rel. Connell v. Boulet (1915)
Syllabus. On Motion to Dismiss Appeal. In a proceeding by mandamus to order tbe Register of Conveyances to cancel tbe inscription of a tax sale contradictorily with the purchaser at tax sale, the Register is only a nominal, party to the appeal and need not be cited. Though the name of the surety is not inserted in the body of an appeal bond, the fact that such surety has signed the bond under the name of the principal is sufficient.
13 Tiess. 210Dubos v. Hardin (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 110,298. Honorable Porter Parker, Judge.
13 Tiess. 213Smith v. Granger (1916)
Syllabus. A title translative of property from any person whom the purchaser honestly believes to be the real owner, accompanied by possession of ten years, will secure a perfect title as against all persons against whom prescription runs.
13 Tiess. 216Alexius v. Oertling (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 106,837. Honorable E. K. Skinner, Judge.
13 Tiess. 219Brush v. Reid (1916)
Syllabus. 1. A dishonored note does not cease to be such by the fact that it bears an endorsement, executed and dated subsequent to its maturity, extending the time of its payment. "When so endorsed it retains but a restricted negotiability, and a subsequent holder, though purchasing in good faith and for value before its extended maturity, nevertheless takes it subject to all equities existing against his transferror. 2. No valid payment of a note can be made to one not the holder thereof, whether the holder acquired it before or after maturity. 3. As between the original parties a mortgage does not perempt for failure to reinscribe it within ten years. It is only the effect of the inscription that ceases after the lapse of ten years, and this is immaterial except as to third persons.
13 Tiess. 223Randazzo v. Louisiana Mutual Aid Fire Indemnity Society (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “O,” No. 105,991. Honorable E. K. Skinner, Judge.
13 Tiess. 229State ex rel. Brisbois v. Recorder of Mortgages (1915)
Appeal from the Civil District 'Court for the Parish of Orleans, Division “B,” No. 113,700. Honorable F. D. King, Judge.
13 Tiess. 235Lalonier v. Philip Werlein Co. (1916)
Syllabus. Parties undertaking to take the law in their own hands instead of resorting to legal process should be made to feel the weight of judicial condemnation.
13 Tiess. 237Stone v. German Protestant Home for the Aged & Infirm (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 103,915. Honorable F. D. King, Judge.
13 Tiess. 239Succession of Kennedy (1915)
Appeal from the Civil District ‘Court for the Parish of Orleans, Division “B,” No. 113,201. Honorable F. D. King, Judge.
13 Tiess. 245Piazza v. Stef (1916)
Syllabus. One who without authority assumes to contract for another obligates himself. ■
13 Tiess. 247Sanchez v. Woodmen of the World (1916)
Syllabus. Involves only issues of fact.
13 Tiess. 249Berthelot v. New Orleans Railway & Light Co. (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Divisions “A” and “D,” Nos. 93,976, 93,986 and 93,987. Honorables T. C. W. Ellis and Porter Parker, Judges.
13 Tiess. 253Sutton v. Yazoo & Mississippi Valley Railroad (1916)
Appeal from the 28th Judicial District 'Court, Parish of St. Charles, No. 600. Honorable John E. Fleury, Judge.
13 Tiess. 255Ohio Falls Iron Co. v. Succession of Kaufman (1916)
Syllabus. In order to hold one for the debt of a third person the assump-' tion must be absolute and unequivocal; doubt is fatal to. plaintiff’s claim.
13 Tiess. 257Cazzo v. Ulrich (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “A,” No. 114,142. Honorable T. 'O. "W. Ellis, Judge.
13 Tiess. 260State ex rel. Babin v. Democratic Parish Executive Committee (1915)
Syllabus. On Motion To Dismiss. Although the party named as the surety in an appeal bond does not sign the bond, it will be good as a bond if signed by another party under the signature of the principal and on the part of the bond where sureties usually sign.
13 Tiess. 264State ex rel. Elfer v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 479. Honorable John E. Pleury, Judge.
13 Tiess. 268State ex rel. Tenplain v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 477. Honorable John E. Fleury, Judge.
13 Tiess. 269State ex rel. Cieutat v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 482. Honorable John E. Fleury, Judge.
13 Tiess. 270State ex rel. Haydel v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District ’Court, Parish of St. John the Baptist, No. 483. Honorable John E. Eleury, Judge.
13 Tiess. 271State ex rel. Gendron v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 485. Honorable John E. Fleury, Judge.
13 Tiess. 272State ex rel. Webre v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 486. Honorable John E. Fleury, Judge.
13 Tiess. 273State ex rel. Cassagne v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 482. Honorable John E. Fleury, Judge.
13 Tiess. 274State ex rel. Lasseigne v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 490. Honorable John E. Pleury, Judge.
13 Tiess. 275State ex rel. Webre v. Democratic Parish Executive Committee (1915)
Appeal from the 28th Judicial District Court, Parish of St. John the Baptist, No. 489. Honorable John F. Fleury, Judge.
13 Tiess. 276Jackson Brewing Co. v. Daubert (1916)
Appeal from the ’Civil District Court for the Parish of Orleans, Division “E,” No. 108,476. Honorable G. H. Theard, Judge.
13 Tiess. 280Barker v. Jung (1916)
Appeal from the ’Civil District Court for the P-arish of Orleans, Division “D,” No. 108,147. Honorable Porter Parker, Judge.
13 Tiess. 285Crescent Forwarding & Transportation Co. v. City of New Orleans (1916)
Syllabus. The Public Belt Railroad Commission is but the City of New Orleans itself administering and operating its own property through its designated officials. It is not a corporation nor an entity separate and distinct from the corporation of the City of New Orleans.
13 Tiess. 287Wright v. New Orleans Land Co. (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division ££D,’’ No. 110,231. Honorable Porter Parker, Judge.
13 Tiess. 290Bahns v. Earnest A. Carrere Co. (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “D,” No. 113,416. Honorable Porter Parker, Judge.
13 Tiess. 292State ex rel. Szabary v. Recorder of Mortgages (1916)
Syllabus. When several parties are plaintiffs or defendants they may all-join in one petition of appeal and furnish one bond. The allegation that the amount of the bond as fixed by the Court, is insufficient is not a ground to dismiss an appeal; the remedy is to apply to the lower Court to increase the amount. Mandamus is the proper remedy to cause the Recorder of Mort- ■ gages to cancel inscriptions of privileges claimed by con- • tractors and others upon buildings when it is alleged that said privileges have been extinguished. Relator who has neither mortgage nor privileges upon certain lots, nor claim against- the owner, discloses no right of action for the cancellation of inscriptions upon said lots in favor of others. The action of undertakers of buildings is not prescribed by three years but by'ten years. Architects are assimilated to undertakers and the same prescription applies to their action for the recovery of their compensation.
13 Tiess. 299Succession of Bragg (1916)
Syllabus. 1. One who holds a public office or employment by election or appointment even for a fixed time has no such contract with the government or appointing body as to prevent the Legislature or proper authority from abolishing the office, or diminishing its duration or pay, or removing him from office. But after the services have been rendered under a law or resolution which fixes the rate of compensation there arises an implied contract to pay for those services at tha; rate, the obligation of which is vested and perfect. 2. The right so acquired is property belonging to the claimant and passes by will as any other property belonging to him at his decease. 3. The payment of such a claim by the government however tardy is not a gratuity, but simply the discharge of an obligation due the claimant.
13 Tiess. 303Orlesch v. Fairchild Auto Co. (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “C,’’ No. 108,378. Honorable E. K. Skinner, Judge.
13 Tiess. 307Newspaper Feature Service Co. v. Southern Publishing Co. (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “A,” No. 113,930. Honorable T. C. W. Ellis, Judge.
13 Tiess. 309Revol v. Grout (1916)
Syllabus. The principle of estoppel by acquiescence has no possible application where the conduct of the party against whom it is invoked is one of repeated and persistent protest. •
13 Tiess. 311Johnson v. Grand Lodge Knights of Pythias (1916)
Syllabus. ' A mutual association is without right to suspend a member for matters having no connection with the association and not detrimental to it. A member illegally suspended or expelled has a double action against the association, one for damages and another for reinstatement. ■
13 Tiess. 318Succession of Labosterie (1916)
Syllabus. When the owner of one-fourth of certain property dies, and art order for the sale of his interest is obtained in his succession, and the other owners of the remaining three-fourths give the auctioneer authority to sell their share, the adjudication by the auctioneer of the whole property by virtue of these two authorizations will confer a valid title upon the purchaser.
13 Tiess. 321Bertucci v. Cappell (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “B,” No. 113,120. Honorable F. D. King, Judge.
13 Tiess. 331C. S. Jackson & Co. v. Ahrens & Ott Mnfg. Co. (1916)
Syllabus. 1. Where the writings passed between the parties constitute the entire contract between them, parol evidence is inadmigai. ble to vary its terms. 2. Where a party is charged with the cost of supplying a deficiency in the quantity called for by a contract, it would be a double charge to condemn him also to refund the value of that same deficiency.
13 Tiess. 334Ketteringham v. Eureka Homestead Society (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “C,” No. 114,297. Honorable E. K., Skinner, Judge.
13 Tiess. 336Jackson Brewing Co. v. John Panno & Co. (1916)
Syllabus. Section 11 of Act 176 of 1908 does not prohibit a brewery from acquiring in due course in payment of a debt, the barroom license issued to its defaulting debtor, or from thereafter selling same to another.
13 Tiess. 338Taul v. Graffato (1916)
Appeal from the 'Civil District Court for the Parish of .Orleans, Division “E,” No. 111,426. Honorable Gr. H. Theard, Judge.
13 Tiess. 344De Bautte v. Weil Bros. (1916)
Syllabus. One notified that a contract has been made for him by another pretending to have authority, will be presumed to have ratified' it, unless he repudiates it immediately after being notified.
13 Tiess. 348Atlantic Fruit Distributors v. Texas & Pacific Railway Co. (1916)
Appeal from the ’Civil District Court for the Parish of Orleans, Division “B,” No. 106,751. Honorable F. D, King, Judge.
13 Tiess. 351Land Development Co. of Louisiana, Ltd. v. Dreyfous (1916)
Syllabus. A general power of attorney or proxy granted by all stock-holaers to an agent, authorizing him to attend all meetings of the corporation and vote their stock, does not empower him to directly order the sale of ’the corporation’s property without the formality of such meeting or other corporate action — particularly when the charter invests all corporate functions in the board of directors.
13 Tiess. 353Huck v. Louisville & Nashville Railroad (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “A,” No. 104,534. Honorable T. C. W. Ellis, Judge. • .
13 Tiess. 358Bonart v. Rabito (1915)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 110,940. Honorable P. D. King, Judge.
13 Tiess. 362Gassen v. Lehmann (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 635.
13 Tiess. 369Bloch Bros. v. Ferchaud (1916)
Appeal from the 27th Judicial District 'Court, Parish of St. James, No. 2980. Honorable Charles T. Wortham, Judge.
13 Tiess. 371Succession of Mobery (1916)
Syllabus. 1. Where the by-laws of a mutual benefit .society provide that a benefit shall be paid to certain persons and no others, the Courts cannot extend the number of such persons. 2. Such benefits form no part of the estate of the deceased.
13 Tiess. 373Metairie Ridge Nursery Co. v. Armour & Co. (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 111,136. Honorable E. K. Skinner, Judge. ' .
13 Tiess. 374Demourelle v. Pittsburg Plate Glass Co. (1916)
Appeal from tlie 'Civil District Court for tlie Parish of Orleans, Division “B,” No. 106,724. Honorable F. D. King, Judge.
13 Tiess. 377Succession of Monnier (1916)
Syllabus. Where the mortgage creditor employs counsel because his debt can be collected through judicial proceedings alone, the fact that at the instance and for the benefit of the debtor estate, he consents that the proceeding for the discharge of the debt assume the form of a succession sale, does not impair his claim for attorney’s fees under a stipulation in the act of mortgage entitling him thereto “in case it shall become necessary to institute legal proceedings for the recovery” of the mortgage debt.
13 Tiess. 380Brierre v. Fidelity Homestead Ass'n (1916)
Appeal from the ‘Civil District Court for tbe Parish of Orleans, Division “ C, ” No. 111,444. Honorable E.- K. Skinner, Judge.
13 Tiess. 383McMahon v. Baench (1916)
Syllabus. Though a mandate is presumptively gratuitous, it is not always necessary for the agent to establish an express agreement to receive remuneration for his services. An agreement to compensate the agent may be inferred from the nature of the services rendered and the relation of the parties.
13 Tiess. 386Hopkins v. Hopkins (1916)
Syllabus. On a question of fact the conclusion of the trial Judge will be adopted unless manifestly erroneous. A document by which the owner of a business gives an employee an interest in the business is the creation of a partnership and not a donation and need not be by notarial act.
13 Tiess. 392State ex rel. Posey v. Ellis (1916)
Syllabus. Where the only evidence in the record shows that the property in controversy exceeds in value the sum of two thousand dollars ($2,000.00), this Court is without jurisdiction of the appeal.
13 Tiess. 394Pitard v. Junius Hart Piano House, Ltd. (1916)
Syllabus. The judgment of the trial Judge on a question of fact will be affirmed unless it appears to this Court that it was manifestly erroneous.
13 Tiess. 397State ex rel. Southern Publishing Co. v. Ellis (1916)
Per Curiam. Tine rules of this Court provide (Rule 12, Section 3) that “.all writs of mandamus, prohibition, and the like, shall be fixed and submitted on printed or written briefs, and without oral argument.” The uniform practice of this Court has been to consider the return .day fixed in the preliminary order, or rule to show cause, as a “fixing” of the writ within the meaning of the foregoing rule, and to require all such writs to- be submitted on said return day.
13 Tiess. 399Vilm Milling Co. v. Guarino (1916)
Appeal from the 'Civil District Court for the Parish of Orleans, Division “E,” No. 113,300. Honorable G. H. Thearcl, Judge.
13 Tiess. 406Newspaper Feature Service, Inc. v. Southern Publishing Co. (1916)
Syllabus. On Motion To Dismiss. 1. A party is entitled at somé time to a trial upon the merits before an appellate Court, unless he has .lost that right by abandonment or lapse of time, and hence to take any reasonable step to séeure the same such as supplementing by a devolutive appeal a suspensive appeal in danger of dismissal. 2. It is a sufficient compliance with the new practice act (No. 300 pf 1914, p. 611) for the answer to deny the allegations of the petition paragraph by paragraph without dividing or breaking up the contents of each paragraph, or repeating tne same in negative form.
13 Tiess. 413Holloway v. Texas & Pacific Railway Co. (1916)
Appeal from the ’Civil District Court for the Parish of Orleans, Division £iE,” No. 104,351. Honorable G. H. Theard, Judge.
13 Tiess. 416Farrugia v. Weiss (1916)
Syllabus. In order to recover damages on the ground of fraud the plaintiff must establish that the defendant has been guilty of an assertion of what was false or a suppression of what was true.
13 Tiess. 420Succession of Reynaud (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No 113,011. Honorable Gf. H. Theard, Judge.
13 Tiess. 423Security Bank & Trust Co. v. Hibernia Bank & Trust Co. (1916)
Syllabus. On Motion To Dismiss. 1. It is not necessary that, the motion and order of appeal state the character of the appeal. That is fixed by law according to the time within which the appeal is taken, and the nature and amount of the bond given. 2. The law does not require a party appealing to recite in his petition or motion that. the judgment is erroneous It is sufficient that he intends to appeal and gives notice of his intention to do so. Syllabus. On The Merits. A bank receiving on deposit for collection plaintiff’s own check on a non-resident bank is not liable for failure to protest the check for non-payment and to give immediate notice thereof to the plaintiff, when it did give notice of non-payment to the plaintiff in time for it to have used the same steps it might have taken against the drawee bank had earlier notice been given, and no damages is shown by the delay in giving notice.
13 Tiess. 429Lugenbuhl v. D. W. Feitel Bag Co. (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 100,709. Honorable E. K. Skinner, Judge.
13 Tiess. 436Hess v. Huffman (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “C,” No. 111,190. Honorable E. K. Skinner, Judge.
13 Tiess. 439Maggiore v. Lochbaum (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2143. Honorable P. E. Edrington, Judge.
13 Tiess. 441Zito v. Holt (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2144. Honorable P. E. Edrington, Judge.
13 Tiess. 442Christina v. Holliday (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2145. Honorable P. E. Edrington, Judge.
13 Tiess. 442Lazarone v. Jesse (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2146. Honorable P. E. Edrington, Judge.
13 Tiess. 443Chirstmas v. Lofaso (1916)
Syllabus. Where a case hinges on the credibility of witnesses and the finding of the trial Judge on this question is not manifestly erroneous, it will not be disturbed. In a damage suit for assault and battery the amount to-be allowed is left largely to the trial Judge, and his judgment will be affirmed unless the sum fixed by him is clearly insufficient or excessive. Three hundred dollars is not excessive compensation for physical and moral pain, inability to work for two weeks, and loss of two front teeth caused by an assault and battery.
13 Tiess. 450Caughey v. McCubbin (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “A,” No. 114,593. Honorable T. 'C. W. Ellis, Judge.
13 Tiess. 451Colley v. W. B. Thompson & Co. (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “E,” No. 108,942. Honorable G-. H. Theard, Judge.
13 Tiess. 454Schaff v. E. A. Quinette & Son (1916)
Syllabus. Involves only issues of fact.
13 Tiess. 456Succession of Jung (1916)
Appeal from- the Civil District Court for the' Parish of Orleans, Division “B,” No. 102,558. Honorable F.-. D. King, Judge.
13 Tiess. 458Texas & Pacific Railway Co. v. Swift & Co. (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2029. Honorable P. E. Edrington, Judge.
13 Tiess. 460Perry v. Junius Hart Piano House, Ltd. (1916)
Syllabus. A judgment against the owner recognizing another’s, defeasible right of possession of the property, is no bar to a subsequent action for its recovery by the owner, based upon the allegation that this right of possesion has since terminated.
13 Tiess. 462Carter Packet Co. v. Reinhardt (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 111,681. Honorable F, D. King, Judge.
13 Tiess. 465Town of Kenner v. Zito (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1944. Honorable Prentice E. Edrington, Judge. ~
13 Tiess. 472State v. Brown (1916)
Appeal from the Civil District Court for the Parish of Orleans, Divisions “A” and “B,” No. 116,028. Honorables T. C. W. Ellis and F. D. King, Judges.
13 Tiess. 473Frank v. Mateu (1916)
Syllabus. When questions of fact only are involved, the judgment of the lower Court will be 'affirmed unless it is manifestly erron- ' ■ eous.
13 Tiess. 478B. Cohn Co. v. Lazarus (1916)
Syllabus. 1. The concurrence of the husband in the contracts of the wife is essential even though she be separate in estate from him. R. C. C., 122. 2. A denial of all the allegations of a particular paragraph of the petition is sufficiently specific within the intendment of Acts 157 of 1912 and 300 of 1914.
13 Tiess. 480Sporl v. Borum & Whiting Co. (1916)
Syllabus. Involves only-issues of fact.
13 Tiess. 482Adler E Port Co. v. Yazoo & Mississippi Valley Railroad (1916)
Syllabus. The judgment of the District Court on questions of fact will be reversed when it appears to this Court manifestly contrary to the evidence.
13 Tiess. 489Heffern v. McWilliams (1916)
Appeal from the Civil District Court for the Parish of Orleans, Division “B,” No. 109,519. Honorable F. D. King, Judge.
13 Tiess. 492Maggiore v. Lochbaum (1916)
Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 2143. Honorable P. E. Edrington, Judge.
13 Tiess. 495C. Hyland & Co. v. Rice (1916)
Syllabus. On Motion To Dismiss. In fixing the amount of bond for suspensive appeal, interest should be computed to the date of the rendition of the judgment.