Volume 4 — Teissier's Louisiana Reports

<p>Appeal from Civil District Court Division A.</p>

<p>Appeal from Civil District Court, Division E.</p>

<p>1. The defendant was guilt}’’ of gross negligence in failing to-have in its employ a competent man on its ferry boat to attend the “exit bar,” and the disembarking of passengers.</p> <p>2 The fact that the “exit bar” was not removed by one of its employees, but by a passenger or some person not in its employ, does not relieve defendant of liability.</p> <p>3. Plaintiff being the last of the fifteen or twenty passengers on the ferry boat to leave the ferry boat, it is reasonably clear that she exercised prudence and care, and did not contribute to the accident.</p>

<p>Stale demands against parties- deceased must be established with more than reasonable certainty, and the unfavorable presumption created by the delay can be removed only by peculiarly strong and exceptionally conclusive testimony.</p>

<p>1. The right to proceed by rule, or on motion, implies the pendency of a suit between the parties, and is confined to incidental matters which maj' arise in the progress of the contestation, except in certain cases, where a summary proceeding is expressly allowed by law.</p> <p>2. The right -to summary proceedings cannot be extended beyond the cases authorized by law.</p>

<p>x. A defendant in a suit for a partition is called upon to urge all the defenses on which he proposes to rely, and his failure to do so before judgment decreeing the partition, concludes him from afterwards attacking plaintiff’s title, the basis of the action in partition. The title to the property sought to be partitioned is the subject matter of the action and the decree in partition is res adjudicata as to the title between the parties to the action. 47 An. 66cr.</p> <p>2. Article 23 of the Code of Practice, to the effect that “The universal successor, etc., etc., are entitled to the same actions and exceptions as the person whom they succeed,” is not intended to restrict the legatee to the answer filed by the party whom he succeeds where the action is one of partition, and therefore, based on title, but he must assert in said proceeding all other defenses that he may have, personal to himself as well as those which could properly have been urged by the one from whom he inherits.</p>

<p>Issues of fact only are involved herein.</p> <p>Appeal from Civil District Court, Division B.</p>

<p>Appeal from Civil District Court, Division E,</p>

<p>'Appeal from Civil District Court, Division D.</p>

<p>Issue of fact only is involved in this case.</p> <p>Appeal from Civil District Court, Division E.</p>

<p>Appeal from Civil District Court, Division C.</p>

<p>Appeal from Civil District Court, Divisions A and E.</p>

<p>Appeal from Civil District Court, Division E.</p>

<p>Appeal from Civil District Court, Division B.</p>

<p>1. A conditional acceptance of an assignment of a credit becomes absolute and binding on the happening of the condition.</p> <p>2. No particular or specific instrument of writing is required in the transfer or assignment of credits. It may be, and usually is, done by the giving of a simple order to pay a third person; and the acceptance of the transfer by the creditor is equally binding on him whether verbal or in writing.</p> <p>3. No amendment of a judgment may be made in favor of the appellee who has not answered the appeal and prayed for such amendment.</p>

<p>r. Where goods are delivered in good condition to the-, initial carrier and are delivered in a damaged condition to the consignee by the last carrier, the last carrier will be presumed at fault, and will be held liable unless it can show that the damage did not occur on its line.</p> <p>2. The reason for this rule is found in the fact that the goods are in the exclusive charge of the carriers from the point of shipment to the point of delivery, and that evidence of the cause and extent of the damage is peculiarly within the knowledge and power of production of the carriers.</p>

<p>Appeal from Civil District Court Division D.</p>

<p>Appeal from Civil District Court, Division I).</p>

<p>Appeal from Civil District Court, Division B.</p>

<p>Appeal from Civil District Court, Division D.</p>

<p>Appeal from Civil District Court, Division D.</p>

<p>1. If, without any serious ground of complaint, a man should send away a laborer whose services he has laired for a certain time, before the time has expired, he shall be bound to pay such laborer the whole of his salary which he would have been entitled to receive had the full term of his services arrived. But if the laborer is discharged for a just cause the wages due him up to the day of his discharge are not forfeited.</p> <p>2. So, if on the other hand, a laborer after having hired out his services should leave his'employer before the time of his engagement has expired, without having a just cause of complaint against his employer, the laborer shall then forfeit all the wages that may be due him and shall moreover be compelled to repay all the money he has received, either as due for wages or in advance thereof on the running year or on the time of his engagment. But if he leaves for a just cause he is entitled to all the wages due him and is not compelled to repay what he has received on account thereof.</p> <p>3. The penalty inflicted on the employer who discharges his laborer without just cause, and the forfeiture imposed on the laborer who leaves without a just cause of complaint, under Articles 2749 and 2750 C. C., may not be extended by implication to other tlian the specific cases mentioned in the articles supra.</p> <p>4. Forfeitures are not t© be implied or extended, or penalties enforced which are not directed by. the law or stipulated by the parties, though the power is expressly given to the Judge to modify the penalty stipulated by the contracting parties when the principal obligation has been partly executed.</p>

<p>Appeal from Civil District Court, Division E.</p>

<p>1. Where a contract recites that the work must he completed within ninety days, and further stipulates that the pipes are guaranteed not to leak for a period of one year, and the bond contains the clause to the effect that, “If any suits at law or proceedings in equity are brought against the surety to recover any claim hereunder, the same must be instituted within six months after the completion of the work specified in the contract.</p> <p>HELD: The prescription of six months specified in the bond will begin to run not from the completion of the work (expiration of ninety days), but from the expiration of the year after completion.</p>

<p>1. The purpose of Act 101 of 1898 is to settle forever the question of title between parties claiming adverse interests, and the action need not be brought against those to whom the property was assessed or who have parted with their ownership, but may properly be instituted against the one claiming ownership at the time of institution of the suit.</p> <p>2. The pendency of an action in any Court of the Parish of Orleans is not notice of the claim to third persons not parties to said action, unless a notice of pendency stating the napie of the Court, the title and number and object of the suit, the date of filing and a description of the property affected, is recorded in the mortgage office.</p> <p>3. If a tax debtor has not had actual or corporeal possession of property a constructive or civil possession results from the registry of the title of the State or its vendee, which is sufficient to support th§ constitutional prescription protecting the title from attack.</p> <p>4- In computing the period of prescription, the purchaser from the State has the right to avail himself of the time which elapsed when the title was in the State.</p> <p>5. The party who pleads prescription must prove the facts necessary to sustain it.</p>

<p>Appeal from Civil District Court, Division E.</p>

<p>Appeal from 28th Judicial District Court, Parish of Jefferson.</p>

<p>I A thing of which the buyer reserves to himself the trial is not sold until the buyer is satisfied with the trial, but such buyer is bound to use the same diligence in preserving such thing as he uses in preserving his own property.</p> <p>2. The testimony herein is conflicting in essential particulars; taking it as a whole and without attaching undue importance to isolated expressions, we do not find sufficient warrant for disturbing the conclusions of fact of the judge who saw and heard the witnesses.</p> <p>3. Where no offer of payment is made to the creditor himself, the debtor merely offers at his own office to the creditor’s bookkeeper to have a check drawn for that pa;t of the claim which is admitted to be due if such check be accepted in full settlement, the bookkeeper’s refusal to accept the same cannot form the basis of an alleged waiver of the tender required by law.</p>

<p>x. Where property which is held in common by a minor and his surviving parent is adjudicated to the latter at the price of appraisement under Art 343 C. C., a special mortgage results therefrom and attaches to all the property sold as security for the payment of the price of adjudication.</p> <p>2. Independent of this special mortgage resulting from the adjudication the minor also has a legal mortgage on that property, and all other property owned by the natural tutor as security for all acts of the tutor growing out of the tutorship.</p> <p>3. The action of the minor against his tutor respecting the acts of tutorship, for the security of which the minor has a legal mortgage, is prescribed by four years beginning from the day the minor attains his majority.</p> <p>4. When this prescription has ran the legal mortgage, which is but an accessory to the principal obligation, necessarily follows it and disappears with it.</p>

<p>Appeal from Civil District Court, Division A.</p>

<p>1. Where a broker, without good cause, closes out a customer’s contract for future delivery of a commodity, the measure of damages for the injury is the highest intermediate value between the time of such closing out and a reasonable time after the customer has had notice of the fact, and has had an opportunity to take steps to^nin-imize his loss by replacing the contract.</p> <p>2. The rule of law is that where a party can with reasonable exertions reduce a loss resulting from a breach of contract, it is his duty to do so.</p> <p>3. What constitutes reasonable time is a matter to be determined according to the circumstances of each case and with reference to the means and ability of the party.</p>

<p>Where the tax is imposed, not for the direct benefit of the party who sues to recover it back as paid in error, but for the. general support of the commonwealth, and when it is levied on property or on a profession exempt by law from taxation, then the money must be refunded, but where • the tax is on property, whether exempt from general taxation or not and where the assessment may rather be considered a toll or contribution than a tax and where the property derived a direct benefit from the improvements made by the imposition of such a tax or assessment, as for example, the levee tax, devoted exclusively to the building and maintenance of levees along the Mississippi River, the party cannot then recover back his money, because as he enjoys a direct advantage from its expenditure, it is not equitable that he should have both the benefit and the money.</p> <p>There is a natural obligation on him to pay, therefore, he cannot recover it.</p>

<p>Appeal from Civil District Court, Division A.</p>

<p>Appeal from Civil District Court, Division A.</p>

<p>Appeal from Civil District Court Divisions D and C.</p>

<p>I. If a consignee fails or refuses to take or accept the goods when ready for delivery, the delivering carrier remains liable for them as warehouseman only, and is under no obligation to return them to the consignor</p> <p>:z. Where the initial carrier undertakes to transport goods beyond its own line and does so by delivering them to its connecting carrier who makes due carriage thereof to point of destination; and where the assignee fails or refuses to accept delivery and the last carrier notifies the .initial carrier of that fact, the latter in its turn notifying the shipper, and the goods are ordered returned, the failure of the original delivering carrier to promptly return the shipment is a fault not imputable to the original initial carrier. The latter is liable only when he in his turn has failed to promptly carry the goods after they have been delivered to him by the connecting carrier.</p>

<p>1. Where the same attorney acts for 'two parties and each party communicates, with him, their communications, though clearly privileged from disclosure at the instance of third parties, are not privileged in a controversy between the two original parties.</p> <p>2. The issues of fact on defendant’s reconvention al demand are resolved against him,</p>

<p>1. Where a creditor enters into an agreement with his co-creditors, for their mutual benefit, to suspend the execution of a judgment held by him against their debtor until the termination of a certain suit in which their debtor is interested, but reserves the right to sell said judgment, and does dispose of the same by sale, held: That the purchaser of the judgment so burdened possesses under it, no greater rights than were enjoyed by his vendor, and he is equitably and legally estopped from executing said judgment.</p> <p>2. The proof disclosing that it was not intended the party should sign the agreement, his verbal acceptance is sufficient and binding.</p>

<p>Appeal from Civil District Court, Division A.</p>

<p>■Appeal from Civil District Court, Division E.</p>

<p>Issues of fact alone are involved herein, and the opinion of the District Judge is approved and adopted.</p>

<p>ON MOTION TO DISMISS.</p> <p>No appeal lies from an interlocutory judgment when such judgment may not cause an irreparable injury.</p> <p>An order dissolving an injunction on bond is interlocutory.</p> <p>It is well settled that no appeal lies from an order dissolving an injunction on bond in compliance with Art. 307 C. P. where the facts of the case show, as found in the petition, that the dissolution can work no irreparable injurj1' to plaintiff.</p> <p>Where the allegations of the petition make it evident that the injury is compensable in money there is then no irreparable injury.</p>

<p>in order that a natural child may recover from the succession of her mother, she must have been duly acknowledged by her and the manner of this acknowledgment must be as provided by the Civil Code, Articles 918 and 203.</p>

<p>Issues of fact alone are involved herein</p>

<p>1. When a person employs • another to do certain work without any agreement as to compensation, the law implies a promise to pay for the services as much as they may deserve or merit.</p> <p>2. When, however, in a suit on a quantum mariut for services rendered to an invalid, it is shown not only that the relations between the plaintiff and the invalid were of a very intimate character, but that the services rendered by plaintiff were given voluntarily and without any solicitation on the part of anybody, compensation for such services will not be allowed.</p>

<p>Appeal from Civil District Court, Division A.</p>

<p>ON MOTION TO DISMISS.</p> <p>1. Where an appeal is taken to this Court in a cause wherein the amount involved is beyond our maximum jurisdictional limit, the appeal will not be dismissed, but will be transferred to the Supreme Court.</p>

Under Act 180 of 1894 the furnishers of materials used in the construction of a building may recover judgment in solido for the unpaid price of said materials, against the owner of the building and the surety on the bond of the contractor who undertook to do the work, when neither the building contract nor the bond were recorded within one week after the contract was entered into and the bond signed.

<p>A mandamus will not be granted to compel a Judge to rescind an order of appeal unless he has transcended the bounds of his jurisdiction or of his judicial power. The remedy is on motion to dismiss in proper season for which a mandamus to vacate cannot be substituted.</p>

<p>Appeal from First City Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from First City Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “B-.”</p>

<p>1. Where the community of acquets and gains is dissolved by the death of the wife, the respective interests of the surviving husband and of the deceased wife attaches at the moment of its dissolution to the property of the community.</p> <p>2. Under the theory of the law a community of acquets and gains has, after the decease of one of its members a fictitious existence for the purpose of liquidation and settlement cf community debts. But when there existed no community debts at the date of the dissolution of the matrimonial partnership by the death .cf one of the spouses, the respective interests of the survivor and the heirs of the deceased attaches to the community property at once and irrevocably and, thereafter, it continues to be the property held in joint ownership by them.</p> <p>3. Where community property standing in the name of the head of the community is sold to satisfy a mortgage debt of the community, the community however being dissolved by the death of the wife, and there remains a surplus in the hands of the Sheriff after satisfying in full the mortgage debt, and it is not shown that there exists any other debts of the community and the surviving hu/iband is not the heir of his deceased wife, nor the legal representative of her heir or heirs, or of the succession, the surviving husband may not legally be entitled to demand and receive from the sheriff more than one half of the surplus fund in the hands of the latter.</p>

<p>1. Where judicial interpretation of a tax statute is necessary to determine whether or not the tax as demanded is imposed by law, the question of legality vel non of the tax is raised and the appeal must be taken to the Supreme Court.</p> <p>2. When the appeal in such case has been taken to this Court, it will not be dismissed but will be transferred to the Supreme Court in accordance with the provisions of Act No. 56 of 1904.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>The interpretation and construction of a tax law, with reference to whether or not the tax claimed under it is due, necessarily brings in question the legality of the tax; hence an appeal in a cause of this character is to the Supreme Court only.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>1. The valuation of property for taxation by the Assessors is in. the nature of a judicial act, protected by all presumptions in favor of its fairness and correctness, and subject to reduction only on clear affirmative proof that it is excessive.</p> <p>2. The circumstance that the revenues of a piece of real estate have been; by testamentary disposition, given in perpetuity to charitable institutions, and that no disposition has been made of the naked ownership of the property, thereby placing said property hors de commerce, will net in itself furnish any reason for a discrimination between the actual values of this property and the adjoining properties.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. Where an act recites the price paid for real estate to have been one dollar ($1.00), and other consideration, and is signed by all the heirs (majors), who subsequently ratify and confirm the original sale by executing other acts in which they recite and declare the price to have been one dollar ($i;.oo) and “other consideration,” exceeding in value the sum of five hundred dollars ($500.00), said confirmatory deeds will be held to have taken the transaction out of the category of a donation.</p> <p>2. One of the vendors, a married woman, having been authorized by her husband to sign the original act of sale, it was unnecessary that she should be again authorized to sign the declaration setting out the value of “the other consideration,” the said “declaration” or ratifying act being kindred if not part of the original act.</p>

<p>Appeal from the Civil District Court, Division “E.”</p>

<p>1. In a suit for damages on a quantum meruit where actual ■ damages are shown, it is not competent for the Court to award nominal damages.</p> <p>2. However, where the expert witnesses summoned to testify as to the value of certain work or labor, the basis of the suit and when the estimates of said experts vary from $5 to $400.00 or $500.00, it is in that case competent for the Court, after carefully considering and weighing the evidence, to award what it conceives to be a just and fair compensation, and unless the finding of the trial judge, who has seen and heard the witnesses, is manifestly erroneous, it will not be disturbed on appeal.</p>

<p>Where a creditor holding a special mortgage and vendor’s privilege on property standing in the name of the head of the community, permits it to be sold in the succession of the debtor’s deceased wife, the sole asset of her succession consisting of her community interest in said property, he subordinates his vendor’s lien to the payment of the administrator’s commission, the Clerk’s, appraisers and Notary’s fees to the extent that their services were required in the matter of selling the property and to the fees of the attorney when the latter’s services were necessary in order to put the Cpurt’s action into motion. .</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from First City Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from 28th Judicial District Court, Parish of St. John the Baptist.</p>

<p>1. A party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings, is bound by its effect.</p> <p>2. Where a contract of insurance provides that the assured must have title in fee simple in the property, an equitable estate in fee simple is sufficient to support an insurable interest.</p> <p>3. Other, over, or double insurance is defined as being additional and valid insurance, prior or subsequent, upon the same subject, risk and interest, effected by the same assured or for his benefit and with his knowledge or consent.</p> <p>4. The reason for the insertion in a policy of the clause prohibiting double insurance is, that it is deemed advisable, in the interest of the public as well as of the moral risk, that part of the insurance shall be carried by the insured in order to secure effecting precautions on his part, for the preservation of the property.</p> <p>5- It is a general, but not a universal rule, that the knowledge of the agent is the knowledge of the principal, and jurisprudence has made exceptions in the application of the rule.</p> <p>6. The true test as to whether or not there is double insurance is the condition of the insured’s motive for the preservation of the property; hence the knowledge intended must be actual and not merely constructive.</p> <p>7. The plaintiff herein, having shown his good faith, his want of actual knowledge of the existence of the previous policy, and an insurable interest, is entitled to recover.</p>

<p>1. Under Art. R. C. C. 446, an unincorporated association cannot sue except in the individual names of all the members who compose it, and, under Art. 15 C. I’., an action can be brought only by one having a real or actual interest.</p> <p>2. 'But, jurisprudence has recognized and enforced a distinction to the effect, that whoever is answerable to another for a thing placed in his possession has such a special property in it, as enables him to maintain an action for the possession, if taken by a stranger.</p>

<p>Appeal from- First City Court, Division “B.”</p>

<p>ON MOTION TO DISMÍSS.</p> <p>Under Act. 52 of 1904, the .Supreme Court is given the discretion, when an appeal has been wrongfully lodged in that Court, to transfer said appeal to the Court of Appeal conditioned upon appellant making affidavit within ten days that the appeal is not taken for delay, but appellant’s failure to avail himself of the provisions of the Act of 1904 and of the order of transfer made under it by the Supreme Court, operates as a dismissal and not as an abandonment of his appeal, and places him in the same attitude that .he would have occupied prior to the enactment of the law. His rights to a devolutive appeal within the year after judgment is not lost to him.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civid District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Ciivl District Court, Division “D.”</p>

<p>1. The cost and expense of accommodating railroad tracks to the exigencies of the public sewerage and public water and drainage systems of the City of New Orleans must be borne by the railroad company and not by the Sewerage and Water Board.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>X. Parol evidence is admissable to establish clerical errors in the description of lands which are conveyed in a deed, to explain lurking ambiguities; to show boundaries, etc.</p> <p>2. While it is undoubtedly the general rule that one tenant in common cannot acquire an outstanding title adverse to his co-tenant’s and that the purchase of such inures to the benefit of all the co-tenants upon equitable contribution being made, there are well defined and well established exceptions to the general rule as where co-tenants have acquired their respective titles, by different instruments and no relation of trust and confidence existed between them.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>This is an action for personal injury in which questions of fact only are involved, and these are resolved in favor of plaintiff.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. A case will be remanded on the ground of newly discovered evidence filed in the appellate Court, when it shall ■ appear that the circumstances of the application are extraordinary and exceptional and the ends of justice require remanding.</p> <p>2. The appellate Court has in its own hands the remedy against attempts made to delay appeals under cover of a motion to remand and will protect itself against undeserving applications.</p> <p>3. A suit to revive a judgment is not an exclusive mode of arresting the current of prescription against it, and the acknowledgement in writing of the judgment by the judgment debtor is equally effective for that purpose.</p>

RULE ON CLERK. Paragraph IV of Art. 131 of the Constitution, as amended by Sec. 6, of the XXIII amendment to the Constitution, does not abrogate Sec. 7 of Act 136 of 1.880, which fixes the fee which the Clerk of this Court may charge and retain as his compensation for filing appeals from District Courts.

<p>The requirements of the law that plaintiff in order to obtain an attachment against a non-resident must swear that the “debt is due” is satisfied when the affidavit recites that the plaintiff has suffered a fixed loss resulting'from the non-execution of a contract.</p>

<p>Appeal from Civil District Court, Divsion “A.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from 27th Judicial District Court, Parish of St. James.</p>

<p>Appeal from Civil District Court, Diivsion “C.”</p>

<p>1. A broker who is employed to negotiate a sale fully performs his duty when he has procured a purchaser ready and able to buy the property upon the terms stipulated by his principal when the broker’s services were engaged, whether the sale is effected lor not as the result of the refusal and inability of the principal to complete the contract.</p> <p>But where the proposed purchaser is not ready and willing to buy on the terms thus proposed and the sale is not made solely on account of his refusal to take the property, the broker’s commissions have not been earned.</p>

<p>1. The corporate capacity of plaintiff having been called m question, it was incumbent upon it to establish, by the production of its act of incorporation or other evidence, its status as alleged in the petition, and it was error to overrule the exception plead to capacity when the record does not disclose that proof oí this fact was administered at the trial.</p> <p>2. Appellate Courts are constrained to ignore agreements of counsel not in writing and made part of the record, and must confine themselves to, and determine the issues, on the face of the record.</p> <p>3. We are without authority to permit the filing in the lower Court, nunc pro tunc, of the evidence, the filing of which was omitted on the trial below, but such proof being at hand, the ends of justice will be best subserved by remanding the case to allow evidence of the corporate character of the plaintiff to be administered.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from District Court, Division “.C”</p>

<p>When required, the defendant who is the party cast in a suit, is of right entitled to an itemized or detailed statement of the costs expended by the plaintiff, such statement showing, sto far as it can be furnished, the time and manner in which the costs were incurred.</p> <p>A statement presented of the aggregate of the costs will not be deemed sufficient, nor will it suffice to dismiss the demand for an itemized'account by referring the person against whom the costs have been taxed to the dockets or books of the various officials in which the costs are entered. It is for the plaintiffs to furnish the data.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. In the absence of allegations of fraud and error, parol is inadmissible to show anything against or beyond what is mentioned in the written contract-, or as to what may have been said before or at the time of making it, or since.</p> <p>2. Where a written contract provides that the labor and ma-Jterial together are to amount to a specified sum and that the cost of materials is to be deducted therefrom, testimony as to the cost of such materials is admissible, but testimony as to estimates alleged to have been made before the contract was reduced to writng is not admissible.</p>

<p>1. Where a title, when examined by a purchaser, is not good on the face of the public records, a refusal to accept it and a suit to recover the deposit are sufficient to put the vendor in default.</p> <p>2. Under Art. 2047 R. C. C., it was competent for the district Judge to allow further time, after the putting in default, for the performance of the obligation and the perfecting of the title, but this means reasonable 'time.</p>

<p>Appeal from Ciivl District Court, Division “E.”</p>

<p>Issues of fact only are involved herein.</p>

<p>Issues cf fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>1. Where the contract is entire and there is an essential or material deficiency or difference in the goods, the purchaser is not bound to accept and pay for either the whole or a part.</p> <p>2. The issues of fact involved in this suit are resolved in favor of the defendant.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>1. Where one of several heirs to an estate, alive applies for the administration of the same, and in anticipation of his • appointment gives bond and takes the oath six days before such appointment and files same the day before such appointment and thereafter in his official capacity provokes a partition and secures the sale of the succession property, all other legal formalities having been observed, held: That such sale, notwithstanding the irregular manner of qualifying as administrator, will be valid as relates to purchasers. The appointment cannot be attacked collaterally by the purchaser.</p> <p>2.The rights of the heir whose death was presumed are certainly not lost to him should he reappear, but his action is against his co-heirs and not against the purchasers at the partition sale; the title to the property so acquired by them is above attack from that direction.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>In a controversy between two 'organizations as to the right to a name, that which adopted it first is entitled to it.</p>

<p>1. Sec. 4 of Act No. 136 of 1880 which provides, inter alia, that in all cases the surety for costs shall be considered a party to such suit or proceeding and shall be condemned for the amount of costs recoverable in solido with the party cast in the final judgment in such proceeding;” does not contemplate that the final judgment which rejects plaintiff's suit shall include therein the condemnation of the surety for the amount of costs for which he is responsible.</p> <p>2. The proper proceeding is by rule to tax after the suit has been decided.</p> <p>3- Although the suit is terminated, the costs remain as an incident of the suit and one of its issues until they are paid ; hence, a judgment on a rule to tax them does not require the signature of the judge, as it is not such as is nominated by the law, a “final judgment.”</p> <p>4. Where a judgment is rendered, ultra pciitionem, but no effort is made to correct it either by new trial or by appeal —the judgment being .one within the jurisdictional power of the Court to make — the party cast may not be permitted to controvert it by collateral attack four years after its rendition.</p>

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

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Question of fact only is involved herein.</p>

<p>1. Where a contract of sale provides for delivery at a certain place and at a time fixed, delivery elsewhere and at a different period of time, when delivery is accepted by vendee, perfects the contract of sale even as to third persons.</p> <p>2. After such perfection of the contract, the sale of the same thing by the vendor to a third person, though the latter be in good faith, is void as being the sale of the property of another.</p> <p>3. The essentials to a contract of giving payment is a fixed price and the actual possession b y the creditor of the thing given in payment.</p>

<p>1. Parties to a contract may by subsequent conduct m their ■course of dealing with each other under it, modify its terms or waive its conditions, expressly or impliedly.</p> <p>2. When a lessor month after month, even though he does not expressly agree so to do, without objection or protest receives and accepts the rental at a later date than that specified in the contract cf lease and rent notes, he cannot without previous notice to his tenant, given not later than the time of the past payment, demand said rental at an earlier day than that upon which notes were customarily paid, and a writ of prov;sional seizure, under these conditions will be held to have improvidently issued.</p> <p>3. When the record is barren of proof in support of the claim for damages, they will not be allowed.</p>

<p>Appeal from Civil District Court, Division “D.”</p>