Sanders, Baldwin, Viosca & Haspel, of New | time, so you can figure your delivery date Orleans, for appellant. accordingly." The next paragraph of the Dart, Kernan & Dart, of New Orleans, letter reads: for appellee. "We are willing to accept your order for a By Division A, composed of O'NIELL, C. carload lot (approximately 1,500 sets) at the J., and ROGERS, and BRUNOT, JJ. ROGERS, J Plaintiff sued for $3,032.46 on an open account. Defendant reconvened for $15,375 as damages for breach of contract. Judgment was for plaintiff as prayed for. Defendant's reconventional demand was rejected. This appeal is by defendant. Plaintiff, by answer, alleging the appeal to be frivolous, claims damages therefor. Defendant admits the correctness of the account sued on, but denies any indebtedness to plaintiff because of the larger sum which he avers plaintiff owes him. The only issue is on the reconventional demand. Defendant's claim for damages is based on an alleged verbal and written contract, made during the early part of October, 1919, for the delivery, not later than January, 1920, of 10,000 sets of aluminum ware at $5.77 per set. Defendant alleges plaintiff's failure to deliver, due demand, and putting in default, and that, as a result of said breach, he was forced to purchase the equivalent of the merchandise, partly at $6.10, and partly at $7.71, per set, or a total of $15,375 more than the price at which plaintiff had agreed to deliver the said sets of aluminum ware. price of $5.77 net, providing you are willing to wait the required length of time for delivery. sets we are prepared to take care of it now, If you want to make your order read 10,000 and you will then be sure of getting the goods the early part of next year. You, of course, understand that we must have the definite order expressed by quantities before we can go ahead and order the raw material from the mills in the quantities you specify." This proposition was accepted by defendant, who, in his letter of October 2, 1919, placed his order specifically for 10,000 sets, and requested that 1,500 sets be furnished as soon as possible, and 1,500 sets be furnished every week thereafter until the number of sets called for by the order had been delivered. On October 8, 1919, plaintiff, replied to defendant's communication, using, in the course of its letter, the following language: "As requested we have increased your order furnished as soon as possible and 1,500 apso that it now reads 10,000 No. 10 sets to be proximately every week thereafter until the 10,000 are disposed of." Some time between October 2, 1919, and October 8, 1919, defendant called upon plaintiff, at its office at Lamont, Ill. During this The negotiations which resulted in the con- visit the contract was discussed. Defendant tract declared on by defendant were opened testifies that in the course of the discussion by defendant's letter of August 2, 1919, when the acceptance of the contract was acknowlhe wrote plaintiff for quotations on certain edged, and the date of delivery was definiteitems of aluminum to be delivered at the ly fixed for January, 1920, with the possibil rate of 1,000 a week for 10 weeks. On Au-ity of the delivery being made in December, gust 4, 1919, plaintiff replied, requesting 1919. further information. The required informa- This testimony of defendant in regard to tion was furnished by defendant's letter of August 16th. Plaintiff answered, under date of August 19th, with a specific proposition, giving details and price of $5.77 per set. By telegram of September 22d defendant accepted the proposition of August 19th, requesting delivery of a carload immediately and an additional carload every week until further notice, and asking when first delivery might be expected. This telegram was confirmed by letter next day. On September 2, 1919, plaintiff wrote defendant, acknowledging receipt of his telegram. In this communication, which is the pivotal one in the case, plaintiff says, among other things, "While we are greatly oversold we are grateful for the order and will do what we can with it, * and then states, "Today it don't look as though we could take on an order of this size and make shipment sooner than 90 days." The letter then refers to the delay in obtaining deliveries of the raw material from the mills, and repeats, "We figure on about 90 days to get it, but * the delivery is denied by the representatives of plaintiff who handled the transaction, but we are not impressed with their testimony, which is evasive and uncertain. On October 9, 1919, defendant, by letter, which evidently crossed plaintiff's letter of October 8, 1919, offered to increase his order to 20,000 sets and to enter an order for other items of aluminum ware. This letter went without reply until October 27, 1919, when plaintiff declined the additional offer, opening its letter in the following language: "We have been withholding a reply to your letter of October 9, hoping against hope that conditions in the raw material market would materially change so we would be in a position to take on the additional business specified." The letter also contained the following statement: "We have, of course, accepted and filed your original order calling for 10,000 sets." Being desirous of obtaining the merchandise contracted for as soon as possible, be (100 So.) ant on October 30, 1919, addressed plaintiff, to supra, plaintiff, after reviewing the state a communication, requesting to be advised of of the raw material market, pointed out to the approximate date of the first delivery, defendant the inadvisability of confining his and further, whether, if carload shipments order to carload lots for the reason that he could not be delivered at once, defendant could not "make drop shipment delivery in 100 or 200 lots immediately." Plaintiff answered this letter under date of November 1, 1919, using the following language: "As explained to your Mr. Blancand we are several months behind in deliveries and it was not anticipated when your order was taken that delivery would start before the first of the year. Of course, we are making every effort to catch up and it is possible that we will be in a position to make you a substantial shipment before that time." Defendant again wrote plaintiff as of date December 4, 1919, requesting information as to when delivery would be made. This original letter was produced in evidence, and indorsed thereon appears the word "Discourage." The representative of the plaintiff who made the indorsement, when interrogated in regard thereto, offered the absurd explanation that he wrote the word to indicate that he was discouraged. However, when considered in connection with the sudden advance in the price of the raw material which occurred about this time, and the character of plaintiff's subsequent correspondence, we agree with counsel for defendant that the proper interpretation to be given to the memorandum is that plaintiff intended to discourage defendant with a view of having him cancel the contract. would be compelled to wait the required length of time for delivery, and suggested that if defendant would obligate himself to take 10,000 of the aluminum sets, plaintiff was "prepared to take care of it" (the suggested order) “now, and you will then be sure of getting the goods the early part of next year." This was a distinct offer of a specific number, with the inducement held out of prompt delivery, if accepted. Defendant did expressly and unequivocally accept the proposition, and the contract thereupon became complete. In its letter of November 1, 1919, plaintiff, after stating it was behind several months in its deliveries, further stated, in reference to defendant's order, It was not anticipated when your order was taken that delivery would start before the first of the year." Again in its letter or December 11, 1919, in reply to defendant's letter of December, 4, 1919, plaintiff informed defendant that from the present outlook shipments would not be made before March or April. And although defendant professed himself willing to accept the deliveries if made during those months, the shipments were not only not made at that time, but as a matter of fact they were never made. We think the record shows a complete breach of contract for which plaintiff must respond in damages. Defendant testified his damages were as follows: 3,000 sets at $6.14.. 1,200 sets at $6.66.. 5,800 sets at $7.71.. 10,000 sets.... .... $18,420 00 8,124 00 44,718 00 $71,262 00 $13,562 00 Thereafter defendant wrote numerous letters in the endeavor to obtain favorable ac tion from plaintiff, but without avail; all of plaintiff's replies being of an evasive character, and written with the evident inten- Contract price of 10,000 sets at $5.77........ 57,700 00 tion of "discouraging" defendant. The last of the series of letters was the one written Damages recoverable.................... by plaintiff to defendant under date of November 16, 1920. The tenor of this letter plainly indicated that plaintiff did not intend to deliver the merchandise originally contracted for, and defendant thereupon ceased his efforts to have plaintiff comply with its agreement. [1] It is our conclusion that the evidence, a brief statement of which we have just given, establishes the contract declared on by defendant in his reconventional demand. We have reached this conclusion from a careful consideration of the voluminous correspondence itself, and without regard to the testimony adduced relative to the alleged verbal agreement entered into at Lamont, Ill., on the occasion of defendant's visit to that city. In passing over that feature of the case, we feel constrained to say, however, that defendant's version of the conversation and discussion finds ample support in the record. However, the record shows that the 3,000 sets referred to were purchased in February and March, 1920, the 1,200 sets were purchased in April, May, and June, and the 5,800 sets were purchased from July to November, 1920, both inclusive. [2, 3] Inasmuch as plaintiff's obligation was to deliver the merchandise contracted for in January, 1920, and certainly not later than the month of March of the same year, the breach occurred upon failure to make deliveries at that time, and the damages recoverable must be measured by the market price of the merchandise then prevailing. Defendant's testimony shows that the price was $6.14 per set, his reconventional de mand averred $6.10 per set, and we do not think he should be allowed recovery beyond his allegations. The difference between $6.10, the market price, and $5.77, the contract price, is 33 cents per set, or a total In its letter of September 24, 1919, referred of $3,300 on the 10,000 sets, which is the amount of recoverable damages suffered by defendant. Plaintiff's claim for damages for a frivolous appeal is based upon defendant's failure to pay the admittedly correct judgment rendered in plaintiff's favor on the main demand. Under the express provision of the Code of Practice, art. 375, a resident defendant sued by a nonresident plaintiff may reconvene in the suit brought against him upon any cause of action, although his reconventional demand be not necessarily connected with, or incidental to, the main cause of action. The manifest purpose of the law is to permit our citizens to assert such counterclaims as they may have against nonresidents seeking judicial enforcement of their demands against them. [4] In withholding payment of the amount of the judgment against him until a final determination could be had of his counterclaim against his creditor, defendant was acting both within the letter and spirit of the codal provision. The demand for damages for a frivolous appeal is therefore refused. Defendant's claim of $3,300 is offset pro tanto by plaintiff's claim of $3,032.46. The balance in defendant's favor is $267.54. In the interest of simplicity, we think it preferable that the judgment should go in defendant's favor for said balance, rather than in plaintiff's favor on the main demand and in defendant's favor on the reconventional demand. For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside; and it is now ordered and decreed that there be judgment in favor of Gus Blancand, defendant, and against the Illinois Pure Aluminum Company, plaintiff, in the full sum of $267.54, with legal interest thereon from August 2, 1922, until paid; plaintiff and appellee to pay all costs. Rehearing refused by Division B, composed of DAWKINS, LAND, and LECHE, JJ. ROGERS, J. Plaintiff, a corporation domiciled in the city of New Orleans, sued defendant in the civil district court for the parish of Orleans for breach of contract for the sale and delivery of 100,000 gallons of cane syrup. Defendant excepted to the Jurisdiction of the court ratione personæ, averring that he is, and has been for many years, domiciled in the parish of Iberville, and could be sued only in that parish. The court below overruled the exception and ordered defendant to answer to the merits within 10 days. Defendant then applied to this court for writs of certiorari and prohibition, and the case is before us on a rule nisi issued upon said application. From the evidence adduced on the trial of the exception, it appears that defendant is the owner of the Texas plantation in the parish of Iberville, where he has resided and has had his domicile for 26 years; that he is a sugar manufacturer, which is the only business in which he is engaged, and that he conducts his business on said plantation; that about 3 years ago he purchased a piece of real estate situated on Plum street in the city of New Orleans; that some of his children live on the plantation and some of his children live at the residence in New Orleans; that defendant and his wife reside (Supreme Court of Louisiana. May 12, 1924.) about one-half of the year in the parish of (Syllabus by Editorial Staff.j 1. Venue 31 stated. Exception to venue rule, Iberville and spend the remainder of the year in the parish of Orleans; that defendant has made no declaration of intention to change his domicile; and that he is a qualCode Prac. art. 162, providing that one mustified elector of the parish of Iberville and be sued before judge having jurisdiction over place where he has his domicile is subject to actually voted there in the recent gubernaexception provided by article 166, that, if de- torial primary. fendant reside alternately in different parishes, [1] In civil matters, the general rule is, as he must be cited in that in which he appears to declared by our Code of Practice, art. (100 So.) 162, "that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence." But the rule is subject to certain exceptions. One of these exceptions is provided by article 166 of the Code of Practice, which reads: "If a defendant reside alternately in different parishes, he must be cited in that in which he appears to have his principal establishment, or his habitual residence. "If his residence in each appear to be nearly of the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provisions of the law, in which of those parishes he intended to have his domicile." Article 38 of the Civil Code is to the same effect. A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one's principal establishment there. Civil Code, art. 41. This intention is proved by an express declaration of it before the recorders of the parishes from which and to which he shall intend to remove. This declaration must be made in writing, signed by the party making it, and registered by the recorder. Civil Code, art. 42. In case this declaration is not made, the proof of this intention shall depend upon circumstances. Civil Code, art. 43. GUEYDAN v. T. P. RANCH CO. (Supreme Court of Louisiana. May 12, 1924.) (Syllabus by Editorial Staff.) 1. Sequestration 5-One advancing money to make crops held entitled to writ, where crops marketed elsewhere. One advancing money to make crop of rice, under contract whereby borrower agreed to deliver rice to lender as fast as threshed, giving lender right to take possession thereof at any time and also accelerating due date on note when crop should be marketed, writ of seques tration was properly issued on lender's behalf, where defendant shipped his rice elsewhere for marketing. 2. Agriculture 11-Borrower of money to make crop held not entitled to sell in violation of contract. [2] Upon the law and under the facts thus presented we are of the opinion that defendOne borrowing money to make crop held not ant has not acquired such a residence in the entitled to market it elsewhere than with lendparish of Orleans as subjects him to the Ju-er, as specified in contract, merely because risdiction of the courts of that parish in a such stipulation. lender had previously condoned violations of civil action. The residences of the defendant in the parishes of Iberville and Orleans cannot be considered as "nearly of the same nature." The evidence, as a whole, shows that defendant spends slightly more of his time in the former parish. It is there he has his principal establishment; it is there, and there only, he conducts his business operations; and it is there he performs the duty required all citizens to participate in the selection of their governing authorities. These circumstances, in the absence of the express declaration to the contrary, referred to in Civil Code, art. 42, evidence defendant's intention to maintain his domicile in the parish of Iberville, where he has resided for 26 years. In support of his ruling, the respondent judge relies upon article 166 of the Code of Practice and article 38 of the Civil Code, referred to supra; and upon the cases of Judson v. Lathrop, 1 La. Ann. 78; Lacock v. Davidson, 9 La. Ann. 162; and Taylor v. Bach, 17 La. Ann. 61. 3. Sequestration 5-Reasonable ground to believe that debtor intends to conceal or part with property unnecessary under statute. Under Act No. 190, of 1912, a creditor need not have reasonable grounds to believe that for which money was advanced, but is entitled debtor intends to conceal or dispose of crops to sequestration on bare fact that it is within debtor's power to conceal, part with, or dispose of the property. 4. Sequestration 12-Putting debtor in default unnecessary where contract violated. One advancing money to make crops could commence suit for writ of sequestration withfendant had actively violated contract by shipout previously demanding payment, where deping crops elsewhere than as provided therein. 5. Corporations 426(10) - Corporation reaping benefit of loan not allowed to deny authority of stockholder to act in its behalf. Where a corporation in borrowing money from plaintiff acted through one of its minority stockholders, who was the husband of the principal stockholder, the corporation could not defend on the ground that its representative Each of the cited cases was decided upon acted without authority, where it had reaped its own particular facts, showing that the the benefits of the loan and acquiesced in acts respective defendants were engaged in busi- of such stockholder. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Fifteenth Judicial District, The trial judge, in an elaborate opinion, Court, Parish of Jefferson Davis; Winston rendered judgment in favor of plaintiff, recOverton, Judge. ognized plaintiff's lien, privilege, and right of pledge on the crop of rice sequestered and seized, for the advances of 1919, amounting to $2,547.82, and ordered the seized rice sold to satisfy the amount of said advances by privilege and preference. He further rendered judgment in favor of plaintiff for the various sums claimed in suit, deducting, however, interest that had been capitalized By Division B, composed of DAWKINS, by plaintiff, all of which findings, so far as LAND, and LECHE, JJ. LECHE, J. Plaintiff is a commission merchant and is engaged in business at Gueydan in the parish of Vermilion. The defendant, a corporation domiciled at Lake Arthur in the parish of Jefferson Davis, was organized for the purpose of owning, leasing, and operating farms and numerous other and kindred purposes unnecessary to mention, as that is not an issue in the case. On February 7, 1919, defendant contracted a loan from plaintiff for the purpose of planting and growing, during the year 1919, a crop of rice upon lands situated in the parish of Cameron. In representation of said loan, defendant executed its promissory note for $2,456, with 8 per cent. interest from date, together with 10 per cent. for attorney's fees, if placed in the hands of an attorney for collection, and payable on or before December 1, 1919. In order to secure the note, defendant recognized the privilege accorded by law in favor of the furnisher of supplies and, in addition, pledged and pawned 819 sacks of rice to be grown, in favor of plaintiff, and gave plaintiff the right to take pos session of said rice and dispose of it as his own and to apply the proceeds to the customary charges for insurance and storage, and to the advances made in pursuance of the contract of loan. On July 31, 1919, an additional loan was contracted by defendant from plaintiff, in the same manner and under the same terms and conditions; but out of this loan defendant actually received only $91.82. There is no question that when the present suit was instituted, plaintiff's claims for advances on the two contracts aforementioned, for the year 1919, amounted to $2,547.82. In addition to his claim for advances for the year 1919, plaintiff's demand in the present suit includes various other claims for advances made to defendant for its own use, in the years 1917 and 1918, and for advances made to defendant for the use and benefit of its tenants, totaling over $7,000, for all of which plaintiff prays for judgment. At the same time plaintiff prayed for and obtained a writ of sequestration under which was seized a quantity of rice already threshed and bagged, as well as the ungathered crop the amounts thereof are concerned, are not seriously disputed or contested in this court. 1. Defendant's first complaint is that the trial judge clearly erred when he considered that the writ of sequestration had not issued on any other indebtedness than the crop pledges amounting to $2,547.82 for the year 1919. The prayer of plaintiff's original petition is for recognition of his lien, privilege, and right of pledge on defendant's rice crop for advances in the sum of $2,547.82, made during the year 1919, together with interest and attorney's fees, for a writ of sequestration and for an order that said rice be sold to satisfy said indebtedness by preference. Plaintiff's other claims, itemized under the 10 following paragraphs of the prayer of his petition, are not alleged to be secured by lien or privilege, nor does plaintiff pray that any writ of sequestration be issued in aid of their collection. Under the prayer of this petition, the judge ordered the issuance of a writ of sequestration on December 5, 1919. That writ was evidently ordered and issued in accordance with the prayer of plaintiff's petition of his privilege and pledge amounting to $2,as ancilliary to his demand for recognition 547.82. Plaintiff subsequently filed two supplemental petitions. The first was for an alias writ of sequestration directed to the sheriff of the parish of Jefferson Davis, where part of the rice had been removed, the original writ having been sent to the sheriff of the parish of Cameron where the rice was grown and located; and the second was a demand for an additional claim of $935.13. We therefore see no error on the part of the trial judge in holding that the writ of sequestration was issued on plaintiff's demand for $2,547.82, advances made to plant and grow the crop of 1919, which crop was thereafter actually seized and sequestered in obedience to said order and writ. [1] 2. Defendant's next complaint seems to be based on the ground that plaintiff had not sufficient or legal reason to obtain the writ of sequestration. The contract under which defendant obtained the loans from plaintiff for the year |