Volume 5 — Teissier's Louisiana Reports

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

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

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

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

<p>1. Benefit certificates in a mutual benefit society are subject to, the rules cf law governing life insurance policies, except so far as. those rules must be held to be modified by the peculiar organization, objects and policy of such societies.</p> <p>2. The beneficiary designated by the assured has no property nor vested rights in the benefit, because his interest is contingent and uncertain.</p> <p>3. Hence, a designated beneficiary who dies before the assured does not transmit any right in the benefit of his heirs.</p> <p>1. The Code provides that, under the name of children, not only the children of the first degree, but the grandchildren, great-grandchildren, and all other descendants in the direct line are comprehended.</p> <p>But, this definition is confined to the word as used as a term of 2. law in the Code itself and it is not applicable when the: word is used in the ordinary affairs of men, or in written instruments containing their agreements or the disposition of their property.</p> <p>Previous decree remains undisturbed.</p>

<p>1. There is nothing prohibiting heirs In a succession from consenting to the sale of particular properties therein, or to a partial partition thereof.</p>

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

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

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

<p>1. The settlement or extinguishment of a promissory Note and its surrender to its maker is a valid consideration for a new promissory note.</p> <p>2. The owner of any promissory note, to order or hearer has the right to collect the whole amount of such promissory note, notwithstanding that the rate of discount at which the same may he, or has been discounted has been beyond the rate of eight per cent per annum.</p>

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

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

<p>Issues of fact only are involved in this cause.</p> <p>Appeal from Civil District Court, Division “E.”</p>

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

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

<p>1. A telegraphic inquiry directed to a person not a banker, as to ■whether a “checque” drawn by a third person, if presented at New Orleans, will he paid, and who answers in the affirmative, is liable when it transpires that the instrument is in the form of a draft, not technically a “checque.”</p> <p>2. The substance of. the transaction was the guarantee of a loan. The form in which it was 'embodied is of no import.</p>

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

<p>1. The legal mortgage of the minor covers not only amounts due, and the liabilities of the tutor at the time of his appointment, but also the rights of the minors accruing subsequently, the mortgage being allowed as a security for the tutor’s adminisrration from the time of qualification, and continuing until liquidation and settlement of his account, when it is ascertained what amount is due to the minor.</p> <p>2. Under express provisions of law the action of the minor against his tutor respecting the acts of tutorship may be brought at any time within four years from the day of his majority.</p>

<p>1. In order to constitute lis pendens there must be another suit pending between the same parties, for the same object and growing out of the same cause of action, before another Court of concurrent jurisdiction. .</p> <p>2.. These are essential prerequisites. If any one fails, the exception of his pendens cannot prevail.</p>

<p>Questions of fact alone are involved herein.</p> <p>Appeal from Civil District Court, Division “A.”</p>

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

<p>1. 'Where it appears that proof exists material to the issue hut not furnished from misapprehension or other cause not implying a desire to withhold the proof or gross neglect on the part of the litigant, in such cases, in furtherance of justice, the Court will remand the cause.</p> <p>2. It is clear that in this case, certain proof is available which, through inadvertence was not produced and we think that sound discretion and the interest of justice require a remanding of the cause.</p>

<p>1. When the pleadings indicate that the sole attack on the judgment of a Court of competent jurisdiction of another State is based upon the want of citation of an amended answer setting out a cross-bill or reconventional demand, and the law and rules of practice of said State do not appear to require- that said process be served on the original plaintiff, and the record showing the proceedings to have been regular in other particulars, our Court will not declare the nullity of such judgments.</p> <p>2. It must be presumed that the Judge of th-e Court of a sister State has observed every requisite formality during the progress of the suit leading to judgment.</p>

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

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

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

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

<p>1. The doctrine heretofore announced by us that, where a message was unintelligible to the Telegraph Company (a'cipher message), and it is not shown that it had any knowledge of the purport or character of the message, nor that any damage or loss' would result from any error in the message or its non-transmissión, only nominal damages will be allowed, is adhered to.</p> <p>2. Where the price of the message is not claimed by the plaintiffs, it will not be allowed.</p>

<p>Questions of fact alone are involved herein.</p> <p>Appeal from Civil District Court, Division D.</p>

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

<p>Evidence, not relevent to any issue, tendered by -the pleadings, will if timely objected to, be excluded.</p>

<p>1. When, in the advertisement ior the sale at public auction for real estate, said advertisement does not recite that an incum-brance in the shape of a judgment duly registered bearing on the property, is to be satisfied and cancelled by payment with the funds realized at said sale, the adjudicatee is not required to consummate such a sale by the passage of an authentic' act, and notice to him to appear at notary’s office to s:gn such act, is not such a putting in default as is contemplated under the law and our jurisprudence.</p> <p>2. A condition precedent to putting the purchaser in default was the tender to him of a clear and unincumbered title to the property. In this ease this was not done, and the adjudicatee is entitled to the relief which the law gives him.</p>

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

<p>Where it appears that the life of a bond under its terms is to he measured by the status of the contract, and that the surety is to he discharged from liability upon completion of the work, the surety can recover only such premiums as remain unpaid at the • time the work is completéd and accepted, i. e., the premiums proportionate to the duration of the risk.</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 56 of 1904.</p> <p>Case transferred.</p>

<p>Jurisdictional allegations in the petition as to the value of property to dispute must yield to the proof found in the record, of such value.</p> <p>The facts of this case bring it within the scope of the decision of the Supreme Court in Citizens Bank vs. Marr, 45 S. R. 715.</p>

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

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

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

<p>A n appellate • court may properly remand a cause whenever it clearly appears that the ends of justice will be promoted thereby.</p>

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

<p>1. In a proper case a review of the' proceedings or relief from alleged erroneous action of the trial Court in the exercise of the power to punish for contempt of Court- — may be had, but the method of such review is not by appeal.</p> <p>2. -Nor does the fact that the case in which the contempt of Court has been committed is appealable, render the proceedings for contempt appealable.</p>

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

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

<p>This case is governed by the decision in Minot vs. King, No. 4157 of our docket.</p>

<p>Where the way hill of a railroad company recites that the consignment consisting of a car of coal is shipped “from” the City of New Orleans, “to” the “spur” hearing the name of the consignee of the coal so shipped, and the facts in the case establish that it has been the custom and practice of the carrier to place such consignment so 'billed on the “spur” of the consignee, delivery will not be complete if the car is left on a siding or switch of the railroad, unless notice of such action by „ the carrier is given the consignee, in which-event the carrier would be absolved from following the custom which had obtained from previous course of dealing with the consignee.</p>

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

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

<p>1. In charging a jury, the Judge should abstain from saying anything about the facts or even recapitulating them so as to exercise any influence on their decision in this respect.</p> <p>2. The decision of this cause depends upon the interpretation of the written contract which is not attacked for fraud or erro»</p>

<p>I11 a motion to dismiss an appeal on the ground of acquiesence on the the part of the appellant in the cause, the allegations of which motion are sworn to hy reputable counsel, this Court, while retaining the appeal, will remand the cause to the District Court with instructions to hear evidence of the facts alleged as constituting acquiescence and to thereafter transmit the record thereof to this Court.</p> <p>It is shown, that the Judgment herein has been acquiesced in.</p>

<p>Clerks of Court are not forced to rely on the conditional security of an appeal 'bond for their costs for preparing and certifying the record of Appeal in a case where the plaintiff is the appellant. For this service they have the right to demand that the surety he absolute.</p> <p>The issues involved in this case are identical with those in the case of The Ahrens & Ott Manufacturing Company vs. E. J. Caire et als, decided this day.</p>

<p>WRIT OF MANDAMUS ON CLERK.</p> <p>Appeal from Twenty-Seventh Judicial District Court, St. James.</p>

<p>The issues involved in this case are identical with those involved in Finlay, Dicks & Co., vs. Caire et als, decided this day.</p> <p>t. Where parties, sued as individuals, seek to shelter themselveá under the ’protection of Corporate rights and privileges and by virtue thereof claim exemption from personal responsibility, the onus is upon them to establish that they have become a corporation by compliance with the requirements of the law.</p> <p>2. A corporation must have full and complete organization and existence as an entity, and in accordance with the law to which it owes its origin, before it can assume its franchise or enter into any kind of contract or transact any business.</p> <p>3. To create corporate existence under Act No. 36 of 1888, known as the “Limited Liability Act,” there must be, at least, a substantial compliance with the provisions of the law of the State governing corporations in general and as embraced in Section 685 and 686 Rev. Sta't, as well as the same compliance with the specific provisions of the Act itself; and the burden of proving this compliance is upon those who, when sued individually, claim immunity under this act</p>

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

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

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

<p>When, from the motion and. order of Appeal, it is clear that it is tlie litigant, through his counsel, who complains of the judgment and who prays for and is granted the appeal, such an appeal will not be dismissed because of some slight confusion in the pronouns used.</p> <p>The law' does not provide any special method of conveying notice to a party of the acceptance to become surety on a contract. .If from the circumstances of the case it is shown that the offerer as surety on a building contract has Knowledge brought to him of the acceptance of the contract and of his offer through the actions of the principals on the contract and his own participation as a furnisher of supplies to be used on said contract, °he making no inquiry about the matter nor formally withdrawing his offer, he must be deemed to have waived formal notice, and is estopped from urging the want of it.</p>

<p>Questions of fact only are involved herein.</p> <p>Appeal from Civil District Court, Division “A.”</p>

<p>Re-examination of tlie record lias convinced us of tlie fact that the application for a rehearing is based on a misapprehension of the evidence.</p>

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

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

<p>■ Appeal from Twenty-eighth Judicial District Court, Parish of St. Charles.</p>

<p>1. As a general r.ule no injury can 'be considered irreparable when the damage or loss occasioned by the act complained of can be made good or repaired by the payment of money.</p> <p>2. Where an interlocutory judgment does not cause an irreparable injury no appeal lies therefrom.</p> <p>]. A motion-to dissolve a writ of provisional seizure on the .ground that the lease and rent notes sued on were not signed by defendant cannot be viewed as a dilatory exception or as a peremptory exception relative to form.</p> <p>2. The purpose of such a motion is not to retard but to defeat the action, and a decision thereon practically settles the merits of the case.</p>

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

<p>1. Where the appointment of an administrator is made by a Cort of competent jurisdiction, the validity of such appointment cannot he inquired into collaterally.</p> <p>2. The purchaser at a sale under the order of a Probate Court is not bound to look beyond the decree recognizing its necessity.</p> <p>2. He must look to the jurisdiction of the Court, but the truth of the record concerning matters within its jurisdiction cannot be disputed.</p>

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

<p>ON MOTION TO DISMISS.</p> <p>Appeal from Civil District Court, Division “B.”</p>

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

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

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

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

<p>Where the subscription for the capital stock in a corporation stipulates that the stock shall he paid for at the rate of a fixed sum each month until such stock is fully paid for, such a stipulation does not constitute a variance or conflict with a clause of tlie act of incorporation which provides that the stock shall be paid for “in cash” the words “in cash” not meaning that the stock shall be fully paid for at the date of subscription or issuance, but that the stock shall be paid for in cash; that is, money, and not its equivalent.</p>

<p>1. Under Act 86 of -1896, amending Art, 1338 R. C. C., privileges may be transferred to the proceeds of sale in judicial partitions, provided the privilege holder be made a party to such judicial partition.</p> <p>2. Judicial partition means partition through the medium of a judicial proceeding; “parties” to such judicial partition necessarily means parties to the suit which seeks to bring about such partition.</p> <p>3. A rule taken on a privilege creditor after judgment and after the sale of the property cannot be regarded as making such creditor a party to the judicial partition.'</p>

<p>Where a customer’s check1 is entrusted to a 'bank for collection and it is transmitted by the bank to another bank for the same purpose, which, in turn, sends it forward to still another bank and that other to a fourth bank, all located in different cities; and where the latter bank sends the check for collection to the payee bank which remits in payment thereof, its draft or check on a bank at the domicile of the last forwarding bank; and where the check thus sent in payment is only presented- and payment refused on the ground of no funds to the credit of the bank drawing the check or draft, the drawing bank failing in the mean while; and where it is shown that the original drawee bank was the only bank at or near its domicile and that,' according to the custom of bankers well known to the forwarding bank, collections of checks or drafts on a bank located in a place where there are no other banks at or near it will be made by sending the check or draft direct to such drawee bank and receiving in payment thereof its check on a bank in some commercial centre, the original payee of the check has no cause of action against tlie last forwarding bank resulting from tñe non payment of the check.</p>

<p>1. A contract between an owner of real estate and a broker, by which the latter is to receive from the former a commission td effect a sale, contemplates an actual sale.</p> <p>2. A petition, claiming the commission which shows a conditional agreement to -buy; subject to a deposit of earnest by the proposed buyer, and which further shows that the purchaser has refused to comply with his agreement and no sale has been made, discloses no cause of action.</p>

<p>The privilege which is accorded by Act 38 of 1882 to any person advancing money or furnishing supplies to enable another to deaden, cut, haul, float or raft any logs or forest timber upon such logs or timber, covers staves cut from such logs or forest timber.</p>

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

<p>1. An'act of -partition is not an act translative of but only declaratory of property; it does rot create a new title or give a new possession and does not serve as a basis for the prescription of ten years.</p> <p>2. While it is the general rule .that parties will not bo permitted to deny their judicial allegations yet it must appear that such allegations were successfully pleaded, or that they were acted upon by the parties invoking them.</p> <p>3. In construing the effect cf such allegations, the Court may properly consider testimony received without objection.</p>

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

<p>Jurisprudence is to the effect that a creditor may sue all of his debtors in the same action, when there is either privity of contract or solidarity of obligation between them; but not otherwise.</p>

<p>An endorsement in blank makes a negotiable instrument payable to bearer, and its possession is prima facie evidence of title and payment may safely be made to the holder thereof.</p>

<p>1. A suit to avoid a contract of sale of real iDroperty instituted by a judgment creditor against his debtor and the latter’s vendee, whether the suit be the revocatory action or the action en declaration de simulation, is one involving “title to an immovable property.”</p> <p>2. The Civil District Court for the Parish of Orleans has exclusive original civil jurisdiction in all suits involving title to immovable' property, hence, -such actions may not be instituted in the City Court of the Parish of Orleans.</p>

<p>1. A husband who has been a party to an authentic act by which it is declared that the wife purchases with her separate para-phenal funds and for her separate benefit, is estopped from contradicting the verity of such recitals. This rule is founded on considerations of public policy and the security of titles.</p> <p>2. Whilst the father is the administrator, during marriage, of the estate of his minor children, he is none-the-less without authority to take any step affecting their interest except by pursuing the same forms as in case of minors represented by tutors.</p> <p>S. He cannot invest the minors funds in buying property, as minors can neither alienate nor acquire property without the intervention of justice; that is to say without the authority of the judge granted on the advice of a family meeting. i. As the legal mortgage in favor of minors results from tutorship and as there can be no tutor to a child where parents are living during marriage, there can hence be no legal mortgage in favor of minors on the property of their parents during marriage and whilst both parents are living.</p> <p>5. Fathers-and mothers have, during marriage, the enjoyment of the estate of their children, until their majority or emancipation.</p> <p>6. The’ rights and obligations resulting from this enjoyment, in addition to the obligation to maintain and to educate their children according to their station in life, are the same as those which attach to usufructuaries generally.</p> <p>7. If the estate of the minor of which his parents during marriage and whilst both parents are living, have the usufruct of, includes thiDgs which cannot be used without being expended or consumed, or without their substance being changed, the parents, as usufructuary, have the right to dispose of them at their pleasure.</p> <p>8. Their obligation, however is to return the same quantity, quality and value to the owner, the minor, or their estimated price at the expiration of the usufruct.</p>

<p>1. A judgment on a rule to compel compliance with an adjudication may, after the adjudicatee’s death before compliance, be enforced against his succession.</p> <p>2. The registry of a pending suit, under Act No. 134 of 1898, in which suit there is no claim of title adversely to the recorded owner, is not such a cloud on the title as warrants refusal to comply with the adjudication.</p> <p>3. Purchasers of property belonging to a succession ordered sold by a court of competent jurisdiction and made at the instance of one apparently authorized to apply for it, are not bound, at their peril, to institute enquiries into the validity of the will appointing the executor, nor into the capacity of the testator to make the will when it is valid on its face.</p>

<p>1. The only difference between a mortgage loan contracted by a married woman under authority of the Court in conformity with Art. 126, 127 and 128, R. C. O., and a mortgage loan contracted with the authorization of the husband alone, is that, in the former, the Judge's certificate is conclusive proof that the money has inured to the benefit of the wife’s separate estate, whereas, in the latter, the lender carries the burden of proving, whenever so required, that the wife’s separate estate was 'benefited.</p> <p>2. This burden rests not only upon the lender or original mortgagee, Taut upon any subsequent bolder of the mortgage note evidencing the loan.</p> <p>'-3. It is not sufficient for such holder to show that the money for the note went into the wife’s hands; he must further show that she used it for her separate benefit.</p>

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

<p>Parol evidence is admissible to prove that the holder of mortgage notes, who was no party to the act of mortgage, and who sues the maker for the full amount of the notes, received the notes from the maker himself, only as a pledge or collateral security for money loaned and to he loaned him by the pledgee; that the loans were less than the amount called for by the notes and that the loans have been fully paid and discharged.</p>

<p>1. One who agreed to purchase real estate cannot he forced to accept a title which is not unquestionably good, and which is suggestive of litigation, the less so where the parties who may have rights are not parties to the suit, and would not be concluded by a judgment adverse to the-ir ostensible or contingent rights.</p> <p>2. A vendor is not in a position to obtain a judgment decreeing specific performance when ho cannot deliver possession of the property.</p>

<p>Where a city court case is referred to the court “en banc,” counsel should agree on, or, failing to do so, obtain from the judge who tried the case a statement-of facts and of the objections to evidence and ruling thereon.</p>

<p>1. When, demands are made in the alternative the plaintiff will not be required to elect on the ground that they are inconsistent.</p> <p>2. The issues of fact involved herein are resolved in favor of the defendant.</p>

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

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

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

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

<p>1. It is elementary that responsibility attaches to a person not only for the damage occasioned 'by his own act, hut for that which is caused by the act of persons for whom he is answerable.</p> <p>2. Thus, masters are responsible for the damages occasioned by their servants.</p> <p>3. But this responsibility attaches only when the injury is done by the servant in the exercise of the functions in which they are employed.</p>

<p>1. Where the defense in a suit on a contract of fire insurance is that of fraudulent fire, the fact that the assured himself set or caused to be set the fire which destroyed the property, may be established by presumptive, as well as direct evidence.</p> <p>2. The law, in cases of this instant character does not exact that the facts of fraudulent fire must be as fully proven as an indictment for arson.</p> <p>■3. The facts from which an inference or presumption is drawn must not only be established in evidence, but the inference, or presumption to which the proven facts give rise, must be strong and almost inevitable, or, in the language of the Code, “weighty, precise and consistent.”</p> <p>4. Nor must the known facts established in evidence be such as are susceptible of application to other circumstances, conditions and motives than those which it is sought to establish.</p> <p>5. Where the known facts may reasonably suppose an unknown fact to be strictly consistent with honesty and fair dealing, and where there is another hypothesis involving honesty, the rule is, unless the scale clearly predominates in favor of the latter, to adopt that inference or presumption which is in favor of innocence.</p>

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

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

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

<p>1. The test of jurisdiction of the appellate Court is the value of the property at the time of the institution of the suit, and the advancement or encroachment of the value of the property subsequently will not divest or affect the Court’s jurisdiction with which it was originally seized.</p> <p>2. Where a person and his authors hava been in possession of property for more than ten years under a title translative of property, his title and those of- the vendees under him must be maintained.</p>

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