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(100 So.) refusing to reduce the commission, and has and Albert L. Grace, in the full sum of $5,declined a certified check for the amount, 000, with legal interest on said sum from both before and since the institution of this January 17, 1920, until paid, and all costs suit. The plaintiffs have not attempted to of suit. take any advantage whatever of the defendant. They have offered to accept his note for Rehearing refused by Division C, com$5.000, payable in one year, which the de- posed of Justices OVERTON, ST. PAUL, and fendant has declined to give. This is not a THOMPSON. case where an attempt has been made to prove a contract above $500 by only one credible witness. Defendant judicially ad. mits in his answer that there was such a

(156 La.) contract, but contends that it had ended.

No. 24505. Defendant admits that plaintiffs found the purchaser for the property, and introduced OLIVER V. NEW ORLEANS RY, & LIGHT him to defendant; that the property was

CO. et al. sold for the purchase price originally agreed (Supreme Court of Louisiana. April 21, 1924.) upon; but attempts to reduce the commission from $5,000 to $2,500, after the deal had been

(Syllabus by Editorial Staff.) closed, under the pretext that the original Appeal and error Om 1011(1)-Trial court's contract had expired, and that a new and findings of fact on conflicting evidence entiindependent agreement had been entered into tled to great weight. between the parties. Defendant having ad Finding of fact, on conflicting evidence, by mitted the contract to pay plaintiff company the trial court in action for injuries against a commission of $5,000 on the sale of his street railway company, is entitled to great

weight. plantation for $135,000, the burden of proof is on defendant to establish the fact that this agreement expired by limitation 2 weeks

Appeal from Civil District Court, Parish afterwards. The expiration of the contract of Orleans; Porter Parker, Judge. is denied by plaintiff company, the alleged Action by Edna Oliver, widow of Wm. Monew agreement to pay a commission of $2,- ton, against the New Orleans Railway & 500 is also denied, and there is no corrobora- Light Company and another, Judgment for tion of the testimony of defendant.

defendants, and plaintiff appeals. Affirmed. This is not a case where a real estate

Joseph Rosenberg, of New Orleans, for agent has closed a deal, contrary to the

appellant. terms given to him by his principal, and is

Benj. W. Kernan, of New Orleans, for apseeking to bind his principal and collect a

pellees. commission; but it is a case where the agent has produced a purchaser who has bought

By Division A composed of O'NIELL, 0. the property of his principal for the full pur- J., and ROGERS and BRUNOT, JJ. chase price, and the principal himself has reduced, not the purchase price, in order to BRUNOT, J. This is a suit against the consummate the sale, but merely the amount New Orleans Railway & Light Company and of the cash to be paid on the purchase price. the National Surety Company of New York,

[2] To deny to plaintiffs their full commis- in solido, for the recovery of $3,000 for persion under such circumstances would be to sonal injuries, $100 for medical attention, allow defendant to enrich himself at their and $25 for drugs and medicines. These expense, in violation of all equitable con sums are claimed by plaintiff as damages siderations, and in the very face of an ad- sustained by her as the result of the allegmitted contract, the termination of which ed negligence of the first-named defendant prior to the sale defendant has pleaded, but while she was in the act of alighting from has failed to establish by satisfactory and one of its street cars. suficient proof.

The lower court dismissed the suit, and The judgment of the lower court restrict- plaintiff has appealed. ing the commission of plaintiff company to The record presents nothing but questions $2,500 is erroneous under our appreciation of fact. of the facts of the case.

Plaintiff relies upon the testimony of herIt is therefore ordered, adjudged, and de- self, her daughter, and two disinterested colcreed that the judgment appealed from be ored women who were seated on a doorstep annulled, avoided, and reversed, and it is about 50 feet from the scene of the accident, now ordered, adjudged, and decreed that engaged in conversation at the time it hapthere be judgment in favor of the plaintiff, pened. the Grace Realty Company, a commercial

Defendant relies upon the testimony of and real estate partnership, and in favor the conductor and motorman of the car, and of its individual members, Charles E. Grace upon two disinterested witnesses,

one of OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on

whom was seated near the step of the car , stepped in front of truck the chauffeur could not and the other was standing in the street at avoid accident. the car step awaiting an opportunity to board the car when the accident occurred.

Appeal from Civil District Court, Parish The testimony is conflicting, and it is im- of Orleans; Hugh C. Cage, Judge. possible to reconcile it; but this court finds Action by Jacob R. Abels against Benjamin that the evidence given by the two disinter- C. Brown, doing business as the New Orleans ested colored women called by plaintiff does Ice Cream Company. Judgment for defendnot satisfactorily corroborate the statements ant, and plaintiff appeals. Affirmed. of the plaintiff and her daughter upon the main allegations of the petition upon which Reid, of Hammond, for appellant.

Guy J. Ray, of New Orleans, and S. S. her right to recover rests, while the testi

Lemle, Moreno & Lemle, of New Orleans, mony of the two disinterested witnesses call

for appellee. ed by the defendant does corroborate "the evidence given by the conductor and the mo

By Division A, composed of O'NIELL, C. torman,

J., and ROGERS and BRUNOT, JJ. The theory of the plaintiff is that while she was leaving the car, with one foo

O’NIELL, C. J. This appeal is from a the step and the other in the air, descending judgment rejecting the plaintiff's demand for towards the ground, the car suddenly start- damages for personal injuries. He was ed and hurled her with great force upon the knocked down by an automobile truck owned pavement. The defense is that the car did by the defendant and operated by the lat. not move; that plaintiff was wearing high- ter's employé. heeled shoes; that when she placed her

The accident happened in New Orleans, at right foot on the car step the heel of that the crossing on Gravier street, at the east. shoe broke off, letting the foot slip past the side of Rampart street. Plaintiff, with a step to the ground and throwing her back companion, had alighted from a street car and the back of her head against the car that had come down Rampart street-northstep. All of the witnesses testify that the ward. The truck was going eastward-toshoe heel broke off, and all except the plain-ward the river. Whether it came down Ramtiff herself say that she went down on the part street and turned into Gravier street, or pavement with one foot under her and her came straight across Gravier street from back and the back of her head against the Saratoga street (which is the next street car step.

westward from Rampart street), is the main In this suit the trial judge found that question in dispute. Plaintiff contends that plaintiff had failed to establish her claim, the truck came down Rampart 'street and and, from a careful reading of the evidence, turned into Gravier street suddenly and withwe do not see how he could have reached a out warning. The defendant says that the different conclusion. Moreover, the trial truck came straight across Rampart street, judge heard and saw the witnesses and had coming directly from a repair shop on Saraan opportunity to accurately estimate which toga street, near Gravier. were the most worthy of belief, and we re- The evidence leaves no doubt in our mind iterate, what we have often heretofore said, that the truck did not come down Rampart that his finding of fact is entitled to great street, but came from the repair shop on weight.

Saratoga street to Gravier street, and thence For these reasons the judgment of the directly to and across Rampart street. The lower court is correct, and it is therefore af- testimony of the chauffeur in that respect firmed, at appellant's cost.

was corroborated by that of the proprietor of the repair shop. The only evidence offered by plaintiff to prove that the truck came down Rampart street was his statement and

that of another witness that immediately aft(156 La.)

er the accident, the chauffeur said that he had No. 24522.

driven down Rampart street. The chauffeur ABELS V. BROWN.

denied that he had made the statement. It

is conceded that the chauffeur was then very (Supreme Court of Louisiana. April 21, 1924.) excited, and it is plausible that he did, işad(Syllabus by Editorial Staff.)

vertently, say that he had driven down Ram

part street, meaning that he had driven Municipal corporations Ow705(10)-Pedestrian crossing street in front of truck held negli across Rampart street. In his report to the

police department, made within an hour gent. Where plaintiff started to cross street aft

and perhaps only a few minutes after the er alighting from street car without looking to accident, the chauffeur said that he had driv. right, and was struck by defendant's truck, en from Saratoga street into Gravier street, which he could have seen had he looked, plain and thence directly to and across Rampart tiff was guilty of negligence, for when he street. No one testified as a matter of fact

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.) that the truck - came down Rampart street. , legation was not proven to the satisfaction On the contrary, the testimony of the plain of the judge who tried the case. Without tiff himself, and of the friend who was walk-going into a discussion of the testimony on ing with him at the time of the accident, the subject, which is very brief, we concur would almost convince us that the truck did in his honor's conclusion. not come down Rampart street. When the The negligence that caused this accident two men alighted from the street car on the was the plaintiff's neglect to look to the right downtown side of the crossing at Gravier when he started to cross Gravier street. If street, they walked eastward to the corner, he had looked to the right then, he would then turned to the right to cross Gravier surely have seen the truck. When he stepstreet. Plaintiff's companion was walking ped in front of the truck it was so close that only a few steps behind him. The truck the chauffeur could not avoid the accident. would have been almost directly in front of The judgment is affirmed, at appellant's them if it had been coming down Rampart cost. street, or was turning into Gravier street, when they turned to the right to cross Gra

(156 La.) vier street. The fact is that the truck was approaching from behind them when they

No. 25307. stepped from the street car, and was to the right of them when they turned to the right LIQUIDATORS OF PRUDENTIAL SAV. to cross Gravier street. Neither of them saw

INGS & HOMESTEAD SOC. v. the truck until the moment when it struck

LANGERMANN. plaintiff. He testified that he looked up and (Supreme Court of Louisiana. Oct. 29, 1923. down Gravier street before starting to cross On Rehearing by the Whole Court, the street, but he admitted that the truck

April 30, 1924.) might then have been behind the street car. He said:

(Syllabus by Editorial Staff.) "That car struck me without my knowledge 1. Descent and distribution Cow 63-Succession; of its being present; how it did I don't know.”

son of first marriage does not hold property bequeathed by mother to father who remar.

ries by inheritance, but because of statute. The man who was with plaintiff at the

Where mother bequeaths property to fatime of the accident acknowledged that he ther who marries again, son of first marriage did not look up or down Gravier street be- may claim property, not by inheritance from fore attempting to cross the street. He said mother, but because of father's second marthat when he saw the truck about to strike riage under Civ. Code, art. 1753, forfeiting plaintiff he tried to grab him, but it was too father's ownership on remarriage. late.

2. Statutes Em 241(1) - Penal statutes strictly The charges of negligence were that the

construed. chauffeur was driving too fast, and that he Penal statutes must be strictly construed. failed to blow his horn. The evidence shows that the truck was not going fast. The

3. Forfeitures Cl-Not favored in law, chauffeur had stopped on the west side of

The law looks with disfavor upon forfei. Rampart street to let the street car pass the

tures. crossing. He waited until the street car had 4. Descent and distribution Om 84—Succession; stopped and started. Then he proceeded conveyance, prior to remarriage, of property across Rampart street. He had not had time

inherited from spouse, held to pass legal title to gain much speed when the accident hap

as against claim by son of first marriage. pened. He stopped the truck within 10 feet

Where husband, prior to remarriage, confrom the place where he struck plaintiff

. He veyed property bequeathed to him by wife, turned to the right to avoid the collision, dor's lien, such grantee held legal title, and sub

grantee conveying it back and retaining venand ran his right front wheel to the side sequent dation en paiement to him, after the walk on Gravier street. There is some doubt remarriage, was merely a voluntary retroceswhether he blew his horn; but that is not im- sion, so that son of arst marriage had no right portant, because it is not at all likely that to property under Civ. Code, art. 1753, fora blowing of the horn would have avoided the feiting legal title to property received from wife accident. The chauffeur had the right to as

on husband's remarriage, in view of articles sume that the men would see the truck and 2041, 2045, 2016, 2130, 2561. would not walk in front of it. And he did all that we should expect of a skilled and pru

Appeal from Civil District Court, Parish dent chauffeur to avoid the accident when of Orleans; Columbus Reid, Judge. the danger appeared.

Action by Liquidators of the Prudential It was charged in the petition that the Savings & Homestead Society against August chauffeur had an ailment of his eyes, and Rudolph Langermann. Judgment for dethat the defendant was therefore at fault fendant, and plaintiff appeals. Reversed for allowing him to drive the truck. The al- and rendered.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

U. Marinoni, Jr., and F. Rivers Richard-, ther, by the deceased mother of claimant, son, both of New Orleans, for appellant. who denied that the act of sale from him to

M. C. Scharff and Sanders, Baldwin, Vios- Rudolph Langermann of date August 22, ca & Haspel, all of New Orleans, for appel- 1907, included among "all the hereditary lee.

rights, active and passive," described there. By Division B, composed of Justices DAW- in, the particular right conferred upon him KINS, LAND, and LECHE.

to claim the two-thirds interest in the own

ership of the property in dispute, under arLAND, J. This is an action in jactitation ticle 1753 of the Civil Code, now repealed by converted into a petitory action by defend- | Act 238 of 1918. ant admitting the slander of the title assert On the other hand, plaintiffs, as the vened by plaintiffs and setting up adverse claim dee of Rudolph Langermann, assert that to a two-thirds interest in the property in said right was embraced within the sale of dispute, which is described as lot No. 4 in date August 22, 1907, under the description the Fourth district of the city of New Or- of "all hereditary passive rights” in and to leans in the square bounded by Dryades, the succession of his mother. South Rampart, First, and Second streets. To this reconventional demand of defend

Plaintiffs, as defendants in the petitory ant for a two-thirds interest in said properaction, called their vendor, Rudolph Langer- ty and for the rents and revenues of same, mann, in warranty, and Langermann called the plaintiffs on November 4, 1921, filed in warranty his vendor, August Rudolph pleas of estoppel by deed and by warranty; Langermann, defendant herein and plaintiff having previously presented on November 3, in the petitory action, to defend the title 1921, a plea of prescription of 10 years, averfrom August Rudolph Langermann to him to ring that plaintiffs and their authors in title a third interest in said property, as well as have been in the physical possession of said. to "all and singular the hereditary rights, property, which is improved, under just title, active and passive, without any exception or translative of property, for more than 10 reservation, which belong to the vendor in years, and that the rights of said August and to the succession of his mother, Georgi- Langermann, if any, are barred by said preana Rachel Lozes, wife of Rudolph Langer- scription. This plea of prescription, as well mann, who died testate on the 4th 'inst., and as the pleas of estoppel by deed and by warof whom this vendor is the sole and forced ranty, were overruled by the lower court. heir for one-third and the purchaser the uni- There was judgment as in case of nonsuit in versal legatee of 'two-thirds of her succes- the call in warranty of plaintiffs against sion."

Rudolph Langermann, with full reservation Mrs. Georgiana Rachel Lozes, the first wife to them to institute proper proceedings to of Rudolph Langermann, died in the city of recover the amount due. The call in warNew Orleans August 4, 1907. By authentic ranty of Rudolph Langermann against Auact of date August 22, 1907, August Rudolpb gust Rudolph Langermann was rejected, and Langermann conveyed to his father, Rudolph it was held that the property in question Langermann, a third interest in said proper must pass to defendant free of any mortgaty and the rights above described in and to ges or alienations by Rudolph Langermann. the succession of his mother. This sale was We are of the opinion that the plea of premade with full warranty of title and for a scription is good and should have been suscash consideration of $1,745.38.

tained for the following reasons: On February 21, 1910, Rudolph Langer The plea of prescription in this case is mann sold the same property to the Com- based upon the authentic act of sale, duly monwealth Building & Loan Association, aft- recorded February 24, 1910, from Rudolph erwards changed in name to the Prudential Langermann to the Commonwealth Building Savings & Homestead Society by the amend- & Loan Association of the property in conment of its charter, with full warranty of troversy. title and for the cash price of $1,800. This At the date of this sale Rudolph Langeract of sale is notarial in form and was duly mann was a widower, and it is not disputed registered in the conveyance office of the city by August Rudolph Langermann that his fa. of New Orleans February 24, 1910.

ther then owned a two-thirds interest in this His claim to the ownership of a two-thirds property and had then acquired the remaininterest in this property, set up as a recon- ing one-third interest in same by virtue of ventional demand in his answer to the call the sale of date August 22, 1907. in warranty, rests solely upon the contention Rudolph Langermann was in the actual that his father, Rudolph Langermann, mar- possession of this property as owner from ried a second time in January, 1915, and August 22, 1907, down to the date of the sale that, by virtue of said second marriage, he, to plaintiffs, February 21, 1910. The public as the child of the preceding marriage, be- records disclosed a title to him with no patcame owner of a two-thirds interest in saident defect upon its face. He had the excluproperty, because this interest had been be- sive ownership of and the exclusive dominqueathed to Rudolph Langermann, his fa- lion over the whole of this property, and the

(100 So.) exclusive right to use and enjoy the same, shall have all the rights, privileges and securifor his own benefit.

ties which are now accorded by the law to the Rudolph Langermann had a legal and vendor of the property." (Italics ours.) transferrable title of ownership of record, and the act of sale of date February 21,

Similar provisions appear in Act 115 of 1910, from him to plaintiffs, constitutes un- 1888 and in Act 280 of 1916.

In the case of Holloman v. Alexandria & questionably a just title, as said act, authentic in form, evidences an absolute and uncon

Pineville Building & Loan Association, 137 ditional sale to plaintiffs with full warranty La. 970, 69 South. 764, we said: of title, and for a valuable consideration. “The defendant sued out executory process

Plaintiffs, therefore, acquired this proper-on a note for $2,700 signed by Mrs. Mary E. ty in good faith and by a just title February Holloman, with the authorization of her hus21, 1910. R. C. C. arts. 3478, 3479, 3481, band, and secured by special mortgage and ven

dor's privilege on a certain improved lot situ3483, 3484, 3485.

ated in the city of Alexandria. The transaction After the sale of this property by Rudolph between the parties was in the form of a sale Langermann to plaintiffs February 21, 1910, by Mrs. Holloman of the lot to the defendant they erected a brick store upon it at a cost association, and a resale of the same property of $4,850, and on December 30, 1910, resold by the association to Mrs. Holloman for the said property to Rudolph Langermann for a price of $3,000, represented, in part, by her consideration of $6,500; plaintiff's retaining note for $2,700 bearing interest at rate of 6 a vendor's lien and special mortgage to se

per cent. per annum, payable monthly, the cure the payment of the promissory note of whole in accordance with the provisions of the

charter and by-laws of the defendant corporaRudolph Langermann, the purchaser, for tion." that amount. In addition to the usual stipulations for payments in sales of this char The plaintiff Mrs. Holloman enjoined the acter, the pledge of Langermann's stock as execution of the writ of seizure and sale in additional security, nonalienation clause, that case on the ground that the application provision for the issuance of executory pro- to the defendant association was for a loan cess, etc., the act evidences a transfer of ti- to pay the debts of her husband, as said as.. tle to Rudolph Langermann of this lot and sociation well knew, and that the two acts the improvements thereon, declaring:

of sale were merely simulated sales, or, at "The purchaser to have and to hold the saia least, a disguised mortgage, made to subject property for himself, his heirs and assigns for the property to the payment of her husever."

band's debts. The court said, in disposing

of this contention: The warranty clause, as is usual in such

"The plaintiff became a sbareholder of the cases, is only against the demands of all per- defendant corporation, and the transaction besons claiming the property through the asso-tween the parties was not a mortgage, but a ciation.

purchase and resale, under the provisions of The lower court held that the sale of this Act No. 120 of 1902, relative to building and property by Langermann to plaintiffs and loan and homestead associations." the resale by them to him did not constitute actual sales, but that the two transactions

The act of sale from Langermann to plainamounted to only a mortgage. In the opin- tiffs of date February 21, 1910, was there ion of the lower court, the sale by Rudolph fore a purchase by them and a sufficient baLangermann to plaintiffs of date February sis for the plea of prescription of 10 years. 21, 1910, did not constitute a sufficient basis

Plaintiffs, under their deed of date Febru. for the prescription of 10 years, as said sale ary 21, 1910, took possession and erected a was not deemed sufficient to transfer the brick store on this property at a cost of $4,property to plaintiffs,

850, and resold the same with the improveIn this view of the trial judge we cannot ments to Rudolph Langermann on December concur, as the law on the subject is express

30, 1910, ly to the contrary.

Article 3482 of the Civil Code provides It is provided in section 9 of Act 120 of that, 1902, a building and loan and homestead act: "It is sufficient if the possession has com

menced in good faith; and if the possession "That such associations are authorized and should afterwards be held in bad faith, that empowered to contract and agree with any per- shall not prevent the prescription." C. C. art. son to acquire on purchase from such person 503. aby property, and afterward to sell or dispose of the same property to a member even though Langermann remained in the actual possaid agreement be made at one and the same session of this property from December 30, time, and such contract and agreement shall 1910, as owner of the whole property, until not be considered or dealt with as a loan, but June or July, after his second marriage in 43 l purchase or acquisition by the association, and then as a sale by the association to January, 1915, when he moved away, but such member, and such association, to secure continued to rent it out at $35 per month, payment of the amount due by such member, until he resold the property to plaintiffs on

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