Volume 14 — Teissier's Louisiana Reports

<p>Syllabus.</p> <p>1., An accommodation endorser is, within the meaning of the Negotiable Instrument Law, Act 64 of 1904, secondarily and not primarily liable.</p> <p>2. • An endorser notwithstanding that he has waived demand, notice of non-payment and protest, is nevertheless' released if, after the maturity of the note, the holder, without the endorser’s consent, enters into a binding agreement with the maker granting additional time to the latter to discharge his obligation.</p>

<p>SYLLABUS.</p> <p>It is a condition imposed by law that the undertaker shall do his work in a workmanlike manner and fitted for the purpose for which it was intended; and if he does not, that the owner may have the work done over in a proper manner, at the expense of the undertaker.</p> <p>The officers of a corporation that has gone out of business of not making themselves responsible for its debts by continuing in- possession of its property and collecting the accounts due to it and paying its debts.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 106,859, Division “B”; Hon. Fred. D. King, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No.109,903. Division “D” Honorable PORTER PARKER, Judge.</p>

<p>Syllabus.</p> <p>1. A person who in bad faith takes logs belonging to another and manufactures same into lumber, is liable to the owner for their value, in their manufactured state, less the costs of manufacture.</p> <p>2. Where the sum demanded is unliquidated and not readily ascertainable, such as by mere computation or by reference to established market values or the like, interest will be allowed from date of judgment only.</p>

<p>Syllabus.</p> <p>1. An administrator is competent to execute to the purchaser a formal deed of the property adjudicated to him at a succession sale conducted by an auctioneer appointed by the Court for that purpose.</p> <p>2. Where the price of an adjudication at a succession sale is paid in cash, there is no legal objection to the ad-judicatee assigning his rights as such to another and causing the deed to be made in' the latter’s favor.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 110,976, Division “C”; Hon. E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 109,025, Division “C”; Hon. E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>Where the petition claims a personal judgment against defendant, but the execution of the judgment is limited to certain property of the defendant, or quasi in rem, there is no merit in the claim that the judgment does not correspond with the prayer of the petition.</p>

<p>Syllabus.</p> <p>In determining the value of an object, the price it brought at a Sheriffs Sale and at a private sale made by the purchaser from the Sheriff will control rather than the opinion of witnesses as to its value.</p>

<p>Syllabus.</p> <p>1. The exception of want of citation is waived by appearing and pleading for purposes other than to urge this defect.</p> <p>2. A forfeiture will not be exacted in favor of one whose own laches, partly at least, caused it to be incurred.</p>

<p>SYLLABUS.</p> <p>The remedy of the proprietor for the failure of the contractor to fulfil his obligation is an action in damages for the losses sustained. R. C. C. 2769.</p>

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1969, Hon. John E. Fleury, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 109,220, Division “B”, Honorable Fred D. King, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans. No. 116,316, Division “C”; Honorable E. K. Skinner. Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 110,432, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans,</p> <p>No. 104,931, Divisions “A and B”; Honorable T. C. W. Ellis and Fred D. King, Judges.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 113,668, Division “B”; Honorable Fred D. King, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 99,951, Divisions “A and C”; Honorable T. C. W. Ellis and E. K. Skinner, Judges.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No; 103,313, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>A domicile once acquired is presumed to continue, and the burden of proof is upon him who alleges a change.</p> <p>When a party has removed from one parish to another, but has not made any declaration of his intention to change his domicile in the manner pointed out by Aricle 42 of the Civil Code, he may be sued in the Parish of his former domicile at any time during one year succeeding the date of his removal.</p> <p>A temporary absence for health, pleasure or business does not constitute a change of domicile.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 108,947, Division “E”; Honorable George H. Theard, Judge.</p>

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

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,426, Division “B”; Honorable Fred. .D. King, Judge.</p>

<p>Syllabus.</p> <p>Where the legal effect of a transaction is to be gauged by-the intention of the parties, the intention of one expressly declared and communicated by him to the ■ other at the moment of the undertaking and not then challenged by the latter, will be taken as constituting their common intention.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,859, Division “A”; Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 113,064, Division “B”; Honorable Fred D. King, Judge.</p>

<p>Syllabus.</p> <p>Knowledge of agent is knowledge of principal.</p> <p>A stakeholder owes no costs after the date of his deposit in ' Court of the money in his hands.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 110,381, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>Where a motion and order of appeal leave no doubt as to who appeals, the appeal will not be dismissed.</p> <p>When a party alleges a donation to himself, the burden of proof upon him, and he must make his claim certain ; to make it probable is not enough.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,312, Division “B”; Honorable Fred D. King, Judge.</p>

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

<p>Syllabus.</p> <p>Where the holder of two (2) notes, secured by the same mortgage, assigns one of them, he cannot come in competition with the holder of the note assigned in the distribution of the price of sale of the property mortgaged if it is insufficient to pay both notes.</p> <p>Attorney’s fees become due when the holder of the note must employ counsel to collect his note.</p>

<p>Syllabus.</p> <p>1. Under the valued policy .law of this State (Act 135 of 1900) an insurance company must restore the property damaged by fire to its original condition, if that can lawfully be done; but if this cannot be done the property must "be restored in accordance with the "building laws in force at the time the policy is issued; otherwise the company must pay the assured the cost of doing so, not, however, in excess of the amount of its policy.</p> <p>2. The only purpose of the valued policy law, and even of the policy itself, in distinguishing between total and partial losses, is to make it clear that the contract is one of indemnity, and not a mere wager; and the difference between the company’s liability for a total loss and its liability for a partial loss is simply one of degree and not of kind.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 103,772, Division “D,” Honorable PORTER PARKER, Judge.</p>

<p>Syllabus.</p> <p>1. Á defendant, whose exception to the jurisdiction of the District Court has been overruled, but who subsequently has judgment 'in his favor on other grounds, waives the exception when in an answer to the appeal, and without first reserving the benefit of the •exception, he prays that the judgment in his favor be affirmed.</p> <p>2. A property owner may, without formal and express averment of special injury, maintain an action to abate a nuisance, such as the removal of an unauthorized obstruction in the sidewalk and street directly in front of his property, where the apparent and necessary consequence of the obstruction is to cause him peculiar damage not suffered by the public generally.</p> <p>3. The statutory remedy of an individual to suppress a nuisance by mandatory injunction is not exclusive but Cumulative, and merely supplementary to his ordinary action in damages for the injuries sustained. Consequently the fact that the injury is compensable in money is no bar to the injunction.</p> <p>4. Section 15 of Act 136 of 1898, as amended by Act 111 of 1910, does not authorize the .City of Gretna to grant to an individual the right to erect and maintain on the public thoroughfare of said city a permanent obstruction devoted exclusively to his strictly private business.</p>

<p>Syllabus.</p> <p>It does not necessarily follow that because one subsequently becomes the owner of the property, he thereby for-fits the right to recover the value of improvements placed thereon by him while it was owned by another.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,142, Division “A”, Honorable T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>The correct names of streets given as boundaries of a square will prevail over an error in the number of a square in a tax sale.</p> <p>An error in the name of the owner in. an assessment for taxes is prescribed by three -(3) years, under Article 2S3 of the Constitution,</p> <p>Plea of dual assessment will not avail in the absence of allegations of payment of the tax.</p> <p>Where the owner was not in the actual possession of the property at the time of the tax sale to the State, it will not be estopped from claiming title under a tax sale to 'itself by continuing to assess the property in the name of the former owner and receiving payment of taxes from him.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,507, Division “A”; Honorable T. C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>When a party makes a contract with another, the presumption is that he is acting for himself and he will be liable personally. If he is not acting for himself, he must, in order to overcome this presumption, make it clear to the other party that he is acting in a representative capacity.</p> <p>One who assumes to act as agent warrants his capacity; and if he has no such capacity he makes himself personally liable to one who deals with him in the honest belief of such capacity.</p> <p>The action of a party against the other who has assumed to act without procuration is ex contractu and is not prescribed by one year.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 112,719, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>A sale for taxes is unassailable after three years where the description is sufficient to identify the property and the tax debtor is not in physical possession.</p>

<p>Syllabus.</p> <p>In a subsequent suit for damages against defendant, the judgment in a criminal proceeding, if admissible at all, is by no means conclusive of the fact that he did or did not commit the act for which he was criminally prosecuted and for which it is sought to hold him civilly liable.</p>

<p>■ Appeal from the Civil District Court, Parish of Orleans, No. 110,380, Division “E”; Honorable George H. Théard, Judge.</p>

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

<p>Syllabus.</p> <p>When no term is fixed for the performance of an obligation, it may be enforced at the will of the obligee.</p> <p>A receiver may demand from delinquent subscribers of stock not only an amount necessary to pay the corporation debts but also the total amount of subscription needful to equalize the losses among the stockholders.</p> <p>Sec. 13 of Act 267 of 1914 does not apply to cases of insolvency and bankruptcy.</p> <p>The receipt of a sum of money in part payment of a subscription to stock is an acceptance of the subscription.</p> <p>A subscription for stock creates the obligation to pay it, and the benefits expected from it form the consideration; no action of the directors can relieve the subscriber from this obligation as far as the creditors are concerned.</p>

<p>No. 114,526, Division “D”; Honorable’ Porter Parker, Judge.</p>

<p>Appeal, from the 28th Judicial District Court, Parish of St. John the Baptist, No. 298; Honorable Prentice E. Ed-rington, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 102,600, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Appeal from the Twenty-eighth Judicial District Court, Parish of St. John the Baptist, No. 474.</p>

<p>Syllabus.</p> <p>A corporation may assume liability for the- acts of its pro-motors prior to its organization -where it has received or availed itself of the benefits of such acts.</p>

<p>Syllabus.</p> <p>1. Where defendant claims that a copy served upon him is not a true copy of the original, he must produce the very copy served, and not some other copy, since the presumption is that the copy served was true and correct.</p> <p>2. Property sold to effect a partition, must be sold without limit; hence no prior appraisement thereof is necessary, as this would be a vain and useless formality.</p> <p>3. In a sale for partition, the presumption is that the Judge ordering the sale, had before him sufficient evidence that the property was not divisible in kind. .One who contends the contrary for the purpose of setting aside the sale, should make proof of his contention.</p> <p>4. Property held in indivisión by the co-heirs of a succession may be sold by the probate court of the place where the succession was opened, even though the property be situated in different parishes.</p> <p>5. Where property is sold in one parish (even though situated in another) it must be sold according to the method prescribed by law and custom for sales made in that parish.</p> <p>6. There is no law requiring that property sold in one parish shall be advertised in some other parish, even though situated in such other parish.</p>

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

<p>Syllabus.</p> <p>The constitutional presumption that every tax sale is prima facie valid, and hence was preceded by notice to the delinquent tax debtor, can be rebutted only by direct and positive evidence to the contrary.</p>

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

<p>Appeal from the Civil District Court, Parish of Orleans, No. 115,987, Division “D”; Honorable Porter Parker, Judge.</p>

<p> Syllabus. </p> <p>1. A purchaser at tax sale is not entitled to reimbursement of the price, taxes, costs, etc., paid by him when the adjudication is annulled on the ground that the taxes were paid prior to such sale.</p> <p>2. A tax certificate issued in conformity with Section 74 of Act 170 of 1898 is conclusive evidence of such prior payment in favor of those acting upon the faith of such certificate.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,118, Division "A”; ■ Honorable T. C. W. Ellis, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 112,206, Division “E”; Honorable George H. Theard, Judge.</p>

<p>Appeal from the 28th Judicial District Court, Parish of St. Charles, No. 668, Honorable Prentice E. E'drington, Judge.</p>

<p>Syllabus.</p> <p>The last clause of. the third paragraph of Section' 1 of Act 20 of 1914 (Employer’s Liability Act) robs the whole paragraph of’ its original meaning; but the 'clause must be given effect, and accordingly no Court can by its judgment enlarge the list of occupations declared hazardous by the Act, so as to bring within the operation of the Act claims arising before the submission of the question to the Court.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 115,691, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,190, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>On Motion To Dismiss.</p> <p>1. Unless the appeal be taken by motion in open court at the same term as the judgment was rendered, the ap-pellee must be cited to answer the appeal and in default thereof the appeal will be dismissed.</p> <p>2. Alleged agreements between counsel, unless reduced to writing will not be recognized.</p>

<p>Syllabus.</p> <p>1. The presumption in favor of the truth of the recitals of a sheriff’s return can be overcome only by positive and direct evidence.</p> <p>2. The official acts of persons, not mere trespassers or usurpers, holding office under color of right, are valid and binding and cannot be collaterally questioned.</p> <p>3. A defendant in an expropriation suit has no cause to complain that the summonses to jurors failed to properly disclose the location of the Court House as prescribed by C. P. 179, Sec. 4, unless he shows that the jurors were misled thereby and failed to seasonably attend at the Court House on the day they were summoned to appear.</p> <p>4. In expropriation proceedings the Clerk and Sheriff derive their authority to draw the jury from R. S. 1481 (R. C. C. 2632), no mandate of the Court being required. And if the jury is in fact drawn by them in accordance with the statute, it is immaterial that an informal or irregular order of Court was directed to them or either of them upon the subject.</p> <p>5. Under R. S. 1481 (R. C. C. 2632), which requires that the jurors shall be summoned to attend “on the tenth day after the date of the summons,” the date of an undated summons is either the date of its issuance or the date of service thereof.</p> <p>6. Defendants are properly condemned for the costs in an expropriation proceeding where a tender is made in accordance with R. C. C. 2638.</p>

<p>Syllabus.</p> <p>A witness who feigns forgetfulness of the circumstances collateral to his main story and which he must recollect if he has any memory at all, and in respect to which he would be open to contradiction • if his testimony is untrue, is unworthy of belief.</p>

<p>Syllabus.</p> <p>A certificate from a Recorder, is incomplete until it is dated and signed, and those who act upon a certificate in an unfinished state, do so at their own risk and peril, and cannot look to such recorder for the damages they may suffer therefrom.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 118,968, Division ”D”; Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>Plaintiff sustains the burden of proof when he shows that at the time his plants were destroyed the defendant’s adjoining factory was emitting noxious gases destructive of plant life, and that there was no other known agency of destruction at the time.</p>

<p>Syllabus.</p> <p>The lessor to whom the movable property affected by his pledge is adjudicated at a sale made to pay debts in the succession of his lessee, may retain in his hands the price of adjudication up to the amount of rent due to him, until the amount of charges and privileges preferred to him is ascertained, on his giving security in a sum equal to that retained by him, to pay the above charges and privileges when ordered to do so by judgment. .</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,957, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Petition for a writ of mandamus peremptory.</p>

<p>Syllabus.</p> <p>Where the assets to be administered upon by a Receiver or Liquidator exceed $2000 in value, an appeal from a judgment appointing, such Receiver or Liquidator will lie to the Supreme Court and not' to the Court of Appeal.</p>

<p>Syllabus.</p> <p>1. When the law is changed after prescription begins to run, the time elapsed before the change is to' be corn-puted according to the old law, and that which follows according to the new. That is to say the unexpired portion of the prescription must be lengthened or shortened in the same ratio that the new period of prescription bears to the old.</p> <p>2. This doctrine of proportionate prescription is not open to constitutional objection, on the ground that it summarily cuts off a right of action, or leaves room for an arbitrary estimate of reasonable time on the part of the Court.</p> <p>3. Under Act 223 of 1914, fixing a prescription for actions for the recovery of erroneous freight charges, any charge which is not the proper charge is an erroneous charge, no matter how paid or exacted.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>1. The amount involved in a controversy is to be found from the pleadings and not from the evidence, and when the pleadings show that more than $100 is claimed, this Court has appellate jurisdiction although the evidence may show that less than $100 is actually due.</p> <p>2. The name of the individual who may happen to be Clerk of Court is mere surplusage in an appeal bond, and hence an error in naming such individual, can not prejudice the appeal, especially since the adoption of Act 112 of 1916.</p>

<p>Syllabus.</p> <p>Where a cotton broker carries various accounts in the name of another member of the Cotton Exchange for account of his several customers, he cannot consolidate all such accounts and compensate one credit account in one name against another debit account in another name.</p> <p>Any such custom, if shown to exist, would be- contrary to law and could not be recognized by courts.</p>

<p>Syllabus.</p> <p>A party .who advises another as an act of friendship to invest his money in a mortgage note, and who himself invests his own money in the same mortgage, is not responsible, for an error of judgment and in the absence of fraud, if the property mortgaged proves insufficient to pay the mortgage.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 115,909, Division “B”; Honorable Fred D. King, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 118,670, Division ^D'”'; Honorable Porter Parker, Judge.</p>

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

<p>■ Appeal from the Civil District Gourt, Parish of Orleans, No. 117,383, Division “D”; ¡Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, Division “D”, No. 117,029; Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,294, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the 28th Judicial District Court, No. 2301.</p>

<p>Syllabus.</p> <p>An agreement whereby a brewer gives to a retailer certain benefits or advantages so long only as the retailer continues to handle in his business the beer of said brewer and no other, it is not against the public policy of the State or the statutes declaratory thereof, as tending to restrain trade, create a monopoly or stifle competition. Act 86 of 1890; Act 90 of 1892; Act 11 of 1915, E. S. .</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 103,264, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 118,357, Division “A”; Honorable T. . C. W. Ellis, Judge.</p>

<p>Syllabus.</p> <p>An architect who makes plans and specifications for another under the following agreement: “If you will give me an exact cost and plans subject to refusal without cost”, is not entitled to compensation when his plans and specifications have been refused.</p>

<p>Syllabus.</p> <p>1. The transferee of a note cannot stand by and see the drawer make partial payments to a former owner whom he still believes to be the holder thereof, and afterwards repudiate such payments and claim the amount of the note from the maker.</p> <p>2. When the transferee of a note keeps himself in the background so as to remain unknown to the maker of the note, and receives partial payments made to the former owner, the fact of the matter is that he wishes the maker to continue in the belief that such former owner is still the holder of the note; and this constitutes such former owner his agent for the purpose of collecting upon the note until he gives the maker notice to the contrary.</p>

<p>Syllabus.</p> <p>A manufacturer and vendor of an appliance, termed a truss, who, in connection with such business or vocation, advertises that he treats, relieves and, in certain cases, cures through the use thereof a bodily ailment, infirmity, deformity or defect, known as “hernia”, and who, prior to fitting and applying the truss, ascertains from a physical examination, of the prospective purchaser, the nature of the hernia and its curability, and thus determines the strength, size and conformation of the truss required to properly effect the relief or cure, is “practicing medicine” within the terms of Section 13 of Act 56 of 1914.</p>

<p>Syllabus.</p> <p>1. Though a larger amount is claimed than is afterwards decreed to be due, an attachment will nevertheless be maintained to t'he extent of the amount awarded, provided the claim was made in good faith.</p> <p>2. In an action in damages for breach of contract of deposit a defendant cannot urge by way of reconvention or setoff a claim distinct from the contract of deposit.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, No. 114,987, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>A benefit association which refuses to pay a policy must fail in its defense when it does not establish with certainty the cause upon which it relies in avoidance of the policy.'</p>

<p>Syllabus.</p> <p>When a lessor, with full knowledge of all the facts, acquiesces in a course of conduct of his tenant violative of the terms of the lease, he cannot thereafter without previous notice to his tenant suddenly change his attitude and claim a forfeiture of the lease on the ground of these past violations.</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, No. 114,765, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Syllabus.</p> <p>1. Where the by-laws of a mutual benefit society provide a death benefit for the wife of a deceased member, she acquires a right therto by virtue of the by-laws-; and where a member registers his concubine as his wife, it is a fraud upon the association which cannot benefit the concubine or prejudice the lawful wife.</p>

<p>Appeal from the 28th Judicial District Court for the Parish of Jefferson, Noi 2221, Honorable John E. Fleury, Judge.</p>

<p>Syllabus.</p> <p>1. The word “poolroom”, within the meaning of Act 128 of 1904, is a place maintained for carrying on or facilitating betting, but removed from or out of view of the game, contest or event upon which the wagers are laid; and it embraces betting not only on horse races but also on the result of baseball games.</p> <p>2. “The ordinary meaning of the words of the statute, Act 128 of 1904, construed together, unmistakably denounce as illicit the-act of betting in poolrooms.”</p>

<p>Appeal from the Civil District Court for the Parish of Orleans, No.. 107,962, Division “E”; Honorable George H. Théard, Judge.</p>

<p>Syllabus.</p> <p>1. A judgment by default may.be confirmed without a formal• motion to.that effect being addressed to the Court. C. P. 312.</p> <p>2. It is not essential to the validity of a judgment that the date of the taking of testimony in support thereof should be evidenced by the minute entry alone of the clerk of court.</p> <p>3. The validity of a judgment confirming a default is not affected by the fact that it was rendered several days after the evidence in support thereof had been submitted to the Court.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 111,085, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,870, Division “D”; Honorable Porter Parker, Judge.</p>

<p>Syllabus.</p> <p>A guarantee must be construed in the light of the avowed purpose of the contract in connection with which it was given.</p>

<p>Syllabus.</p> <p>When a plaintiff sues on notes signed “G. Pitard’s Sons”, and cites “Widow Gustave Pitárd”, and prays for judgment against her on the allegation that she is “G. Pitard’s Sons”, doing business under that name, he must make proof of that fact on confirmation of default, or the judgment will be reversed.</p> <p>An affidavit made by plaintiff’s attorney at law verifying a petition that “all the facts and allegations therein contained are true and correct to the best of his knowledge and belief” is not sufficient evidence in proof of the allegations of the petition to confirm a default.</p> <p>A case will be remanded for additional evidence when in so * doing the ends of justice' will be subserved.</p>

<p>Syllabus.</p> <p>1. Where the owner of the property and the mortagee each insures separately, there may be over-insurance but there cannot be “double-insurance”, since the interests insured are entirely distinct the one from the other.</p> <p>2. The mere right to proceed with an execution pending a devolutive appeal will not alone give an insurable interest unless the party show that his claim will ultimately prevail, or that he will be liable for the amount realized under the seizure.</p>

<p>Syllabus.</p> <p>1. An entry by a bank clerk to a depositor’s credit in the latter’s pass book is not conclusive, but simply presumptive evidence of its correctness and may be contro 'verted.</p> <p>2. The testimony of a litigant who affirms* a positive knowledge upon all facts in his favor, but professes ignorance or forgetfulness upon all other facts, equally material and concerning which he must in the ordinary course of events have possessed and retained a like knowledge and recollection, is entitled to slight credence.</p>

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

<p>Appeal from the Civil District Court, Parish of Orleans, No. 113,837, Division “C”; Honorable E. K. Skinner, Judge.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 114,873, Division “A”; Honorable T. C. W. Ellis, Judge.</p>

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

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,019, Division “B”; Honorable Fred D. King, Judge.</p>

<p>Syllabus.</p> <p>A broker employed by a vendor to negotiate a sale or exchange of property is entitled to his commission when he has found a purchaser, although the sale is never consummated owing to the fault of the vendor.</p>

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

<p>Syllabus.</p> <p>1. Where an employee, under a contract for a term, shows himself unable to perform the services required of him, he may be discharged before the expiration of the term.</p> <p>2. Where a contract is abrogated by one of the parties because of the default or failure of the other, such contract is at an end and is no longer the measure of right between the parties.</p>

<p>Appeal from the Civil District Court, Parish of Orleans, No. 116,465, Division “D”Honorable Porter ■ Parker, Judge.</p>

<p>Syllabus.</p> <p>A sale of nine and one-half squares of ground, designated by certain numbers and assessed as the property of</p> <p>“A”, does not include parts of the two other squares, differently numbered, belonging to, assessed to, and already sold as the property of “B”, even though included in the outer boundaries given in the deed.</p>

<p>Syllabus.</p> <p>A real estate agent acting for the vendor in whose hands a deposit has been made by an intended purchaser to bind the sale may be sued individually by such purchaser to recover the deposit when the vendor fails to tender title within the delay stipulated, without making the vendor a party to the suit.</p>

<p>Syllabus.</p> <p>The stockholders of a corporation have a right to name liquidators to wind up its affairs; but the liquidators so named are not beyond the control of the courts, and on a proper showing may be made to render an account of their administration and otherwise perform their duties as liquidators.</p>