(100 So.) "I (defendant) agree to deliver to said ad- of the business transactions between plainvancer (plaintiff) at Gulf Coast warehouse, tiff and defendant as representative of the Gueydan, La., just as fast as my rice is being defendant corporation, was regularly authreshed, eight hundred and nineteen (819) thorized and empowered to act for the cor sacks of rice out of my share raised on the above-described land, and as a consideration poration. So far as the record shows, there of said advances, without which the same would are three stockholders in the T. P. Ranch (Supreme Court of Louisiana. May 5, 1924.) Amended and affirmed. not have been made, said advancer is hereby accorded the right as part of this contract, to take possession of the rice as if it was his own, at any time, and sell same at the highest market price without my consent." Another stipulation in the contract is to the effect that the note which on its face is made payable December 1, 1919, should become due and exigible as soon as the crop or crops of the borrower should be marketed. [2] The evidence shows that, instead of delivering in accordance with the contract, defendant shipped his rice to a rice mill, at Lake Arthur, with a view of marketing the same elsewhere. This shipment is said to have been made about November 13, 1919, and its effect was to correspondingly advance the maturity of the note and to justify plaintiff in resorting to the order of sequestration. Defendant attempted to show that the shipment it made to the Lake Arthur mill was consented to by plaintiff, but the evidence which it offered for that purpose is not convincing and is certainly insufficient to show the waiver on the part of plaintiff of a stipulation which is expressly made an essential condition in the contract. Nor was defendant justified in failing to carry out that stipulation on the ground that in former years, and under different circumstances, plaintiff may have been indulgent enough to condone an occasional violation of the same. [3] According to the provisions of Act No. 190, p. 336, of 1912, it was not necessary that plaintiff should have had reasonable grounds to believe that defendant intended to conceal, part with, or dispose of the rice, and plaintiff was entitled to a sequestration upon the bare fact that it was within the power of defendant to conceal, part with, or dispose of the same. We therefore believe that the trial judge properly maintained the sequestration. [4] 3. Defendant also complains that no itemized account was furnished to it by plaintiff, and that there was no demand for payment made prior to the institution of the suit. In other words, defendant complains that it was not put in default. Default was unnecessary for the reason that defendant committed an active violation of the contract by shipping its rice elsewhere than the plaintiff's Gulf Coast warehouse and by its attempt to market the same through the Lake Arthur mill. 4. Defendant also contends that it is not shown that T. D. Priddy, who acted in all Company: Mrs. Priddy, who owns eleventwelfths or the bulk of the stock; her husband, Mr. T. D. Priddy, who owns one share; and Mr. L. S. Nichols, who also owns one share. A small portion of the stock is said to be owned by a person, or persons, whose names are not given and who are said by Priddy to live north. Defendant had been doing business with plaintiff for several years before the year 1919, always in the same manner, through Priddy, who borrowed and bought from plaintiff and who signed notes and crop pledges in favor of plaintiff. Priddy openly managed all the affairs of the corporation, disposed of its crops, and attended to all settlements. The corporation acted under all contracts made in its behalf by Priddy with plaintiff, received the benefit of these contracts, and there never was any question as to Priddy's power to represent the corporation until the defense of want of authority was made in the present suit. It is not denied that there seldom were any meetings of the directors of the corporation, composed of the three stockholders aforesaid. Mrs. Priddy appears in reality to have been the soul of the corporation. Her husband evidently managed it with her consent and to her full satisfaction, for, although she must have been familiar with all of his actions in that capacity, she never, so far as third persons are concerned, raised any objection. The only resolution shown to have been adopted by the directors empowering Priddy to act was one which was specially required by the Calcasieu National Bank before it would consent to enter into a loan in favor of the defendant, on August 23, 1917. [5] It is a familiar principle in law that it is not always necessary to show the authority of an officer of a corporation by a resolution of its board of directors. A corporation may not, any more than an individual, reap the benefits flowing from the acts of its officers and repudiate the obligations arising from the same acts. Berlin v. Cusachs, Ltd., 114 La. 744, 38 South. 539; Gair v. Columbia Rice Co., 124 La. 194, 50 South. 8; Boudreaux v. Feibleman, 105 La. 404, 29 South. 881. A course of conduct pursued by a corporation for many years, in permitting an officer to do an authorized act, is an acquiescense in such act and creates an estoppel. We find no error in the judgment appealed from, and that judgment is therefore affirmed. (156 La.) No. 24596. INTERSTATE TRUST & BANKING CO. V. LAPLACE. Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge, Action by the Interstate Trust & Banking Company against Albert J. Laplace. Judgment for defendant, and plaintiff appeals. (Syllabus by Editorial Staff.) 1. Brokers 40-Claim that stock was purchased at unauthorized price could not be made after acquiescence. Where directors of defunct bank had agreed to pay commission on purchases by plaintiff of stock, with interest, and to pledge stock to indemnify him against loss, defendants, who had not complained while purchases were being made, could not claim that limit not above par was to apply to each purchase, and not to average price, in view of Rev. Civ. Code, art. 1956. 2. Brokers 72 Agreement to purchase stock to support price thereof construed. In suit on agreement by directors of defunct bank to pay commission on purchases of stock, to support price thereof held, that such agreement covered only stock purchased and held, and not stock purchased and sold. 3. Brokers 72-Directors of defunct bank held personally Ilable under agreement for commissions and interest on purchase of stock of such bank. In action on agreement by directors of defunct bank to pay commissions with interest on stock purchased by plaintiff to support price thereof, directors, binding themselves individually, were personally responsible for such commission and interest. 4. Brokers 72-Liability for Interest under agreement for purchase of bank stock held to terminate when bank ceased to be going concern. Where bank directors individually bound themselves to pay plaintiff a commission on purchase of stock and interest thereon, in order to sustain the price of the stock, liability for interest terminated when bank ceased to be a going concern. 5. Appeal and error 820-Supreme Court may appoint expert to report on long and intricate accounts. Since no court, much less an appellate court, is required to investigate for itself long and intricate accounts, in view of Code Prac. art. 443, Supreme Court may appoint experts to report on such accounts. Spencer, Gidiere, Phelps & Dunbar, of New Orleans, for appellant. Dart & Dart, of New Orleans, for appellee. By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ. ST. PAUL, J. On April 25, 1910, the directors of the late People's Bank & Trust Company, acting individually but in the interest of said bank, entered into an agreement in the form of a letter addressed to, and accepted by, plaintiff, as follows: We, the undersigned, request you to protect the stock of the People's Bank & Trust Company by purchasing as many shares thereof as may be necessary not to exceed 1,000 shares, at a price not above par; and in consideration therefor we obligate ourselves to pay you a commission of two and one-half per cent. per share, par value, and to pay in terest on your investment at the rate of six per cent. per annum; said commission and interest to be prorated in proportion to the number of shares to be pledged as hereinafter provided; and, in order to indemnify you against any loss on account of said purchase, we sevcrally obligate ourselves to pledge to you the number of shares in said company set opposite our several names, or a proportionate number thereof necessary to make the number of shares pledged equal fifty per cent. of the number of shares purchased by you, said shares to be delivered indorsed in blank at your request. "[Signed] Albert Laplace........69 shares "[Signed] Sundry Other Directors .......442 shares" We have italicized portions of said letter, so as to emphasize the two distinct agreements which it contains; the one to pay a commission on purchases and interest on the investment, the other to pledge certain shares of stock to indemnify plaintiff against loss on such investment. I. The 511 shares of stock were thereupon duly delivered; and between April 27th and May 6th plaintiff bought 664 shares of Peo 6. Interest 46(1)-Interest held dué on commissions on bank stock purchases from ple's Bank Stock (par value $100) at various judicial demand. On contract by bank directors to pay commission and interest on purchases of stock by plaintiff, to sustain price thereof, plaintiff held entitled to interest on sums due for commission from time of judicial demand, in view of Rev. Civ. Code, arts. 1935, 1938, 1940. 7. Interest 17-Not recoverable on sum due for interest, in absence of express contract. Under Rev. Civ. Code, art. 1934, interest cannot be recovered on a sum due for interest, in absence of express contract. prices ranging from 95 to 101. On May 16th plaintiff bought 32 shares at 101, and sold 10 shares at the same figure. Between May 19th and July 8th plaintiff bought 258 shares at 101. On July 25th the market dropped to 90, at which price plaintiff purchased 10 shares. Up to that date plaintiff had purchased in all 964 shares for a total of $95,161.50, of which it had sold 10 shares for $1,010. Thus, on July 25, 1910, after which plaintiff ceased buying, it had in hand 954 shares, (100 So.) for which it had paid $94,151.50, and average of $98.70 per share. Thus, also plaintiff's purchases had kept the market for said stock steadily one point above par from May 16th to July 8th. As the directors of the People's Bank kept in touch with its affairs, and as they themselves were interested in the stock thereof to the extent of at least 511 shares, it is no violent presumption to assume that they were fully aware that plaintiff was purchasing the stock at 101, and doubtless quite well satisfied that plaintiff should do so; said stock having thus been advanced 6 points above the 95 at which it stood on April 27th, when plaintiff began purchasing. [1] It is therefore now too late to claim that the limit "not above par" was to apply to each several purchase and not to the average price for the whole. R. C. C. 1956. II. [2] On the other, since the object of the agreement was to protect the stock of the bank, and prices are kept up by demand and not by supply, it follows that the obligation to pay commissions and interest could apply only to such shares as plaintiff purchased and held. For, had the plaintiff purchased and sold, 1,000 shares, its presence in the market would have had no effect thereon; since the increased demand would have been fully offset by the increased supply. Nor was plaintiff authorized by the agreement to purchase and sell; and the reason is obvious. For the intent was that plaintiff should acquire, and especially that it should hold, 1,000 shares of stock; since there was to be an "investment," on which the directors were to pay interest, which of course meant an outlay of capital; and, further, it was surely not contemplated by the directors that they should pay commissions on an indefinite number of shares to be purchased, out of which 1,000 were to be held. We therefore think that the agreement covered only the 954 shares purchased and held by plaintiff at a cost, as aforesaid, of $94, 151.50. III. From this certain consequences flow: The first, that the commission due by the directors was $2.50 per share (21⁄2 per cent. par value) on 954 shares, say $2,385; and, secondly, that plaintiff was entitled to hold in pledge only 477 shares (one-half of 954) out of the total of 511 shares delivered since the directors bound themselves to pledge to plaintiff only such "proportionate number of shares (set opposite their several names, as might be) necessary to make the number of shares pledged equal 50 per cent. of the number of shares purchased (and held)." And as this defendant's proportion of said 477 shares was as 69 to 511, it follows that plaintiff's pledge covered only 64 shares belonging to him, 100 SO.-35 being 5 shares less than the 69 which he delivered. And, accordingly, since out of the liquidation of the People's Bank plaintiff received $12.70 per share, it follows that it collected from that source (out of defendant's shares) $63.50 in excess of its pledge. And since the agreement clearly shows that the directors did not bind themselves personally to indemnify plaintiff for any loss on said shares ("on account of said purchase"), and no such claim is herein made, it follows that this defendant is entitled to credit for said amount against any sum herein otherwise found to be due by him. As to the commissions on purchases (and interest on investment), the agreement provides that these shall be prorated among the directors "in proportion to the number of shares to be pledged"; so that defendant's proportion thereof is as 64 to 477. And we fix that share at $320. IV. [3] As to the personal liability of the directors for the commissions and interest on investment, the agreement seems sufficiently clear to require no other need for interpretation than a reading thereof. But at all. events, since the directors wanted the bank stock protected and this could not be done by selling their shares, it follows that the commission and interest were to come from some other source, and the only visible source was the personal responsibility therefor of the directors themselves. V. These details disposed of, we come now to the two serious and difficult questions involved. The first is, for how long were the directors obligated to pay interest on plaintiff's outlay? The second is, do they owe interest on said interest? For plaintiff prays for such interest from judicial demand. As the object or purpose of the contract was to protect the stock by keeping it at or near par, through purchases to be made as aforesaid, and as the parties presumably meant to bind themselves not only reasonably but also validly, it follows that they must have had in contemplation that this was something which, "by the nature of the thing" itself, was at least possible at the time the undertaking was gone into. R. С. С. 1891, 1892, 2031. But as plaintiff did not bind itself at all events to keep said stock at par, but only to purchase (and hold) as many shares as might be necessary to do so, not however exceeding 1,000 shares, it follows that the possibility of keeping the stock at par was the condition on which the obligation to buy and hold depended. This was certainly plaintiff's interpretation of the agreement, when it ceased further buying after July 25th, the stock having then fallen to 90. On the other hand, the directors seem not to have complained that plaintiff did not then and there seek shelter, by throwing upon the market all its holdings (including both purchases and pledged stock). And our conclusion is that all parties were at that time well satisfied to let the matter stand in statu quo and await developments. But on March 20, 1911, plaintiff purchased the portfolio of the People's Bank and assumed liability for all its deposits; whereupon the bank necessarily ceased to be a going concern. Then and there it became evident that the object of the agreement had failed absolutely, and each party knew that it faced an inevitable loss. Now, an obligation to pay interest perpetually is, in effect, an obligation to pay eventually the capital sum on which that interest is based; since there is no way of avoiding further payment of interest than by paying said capital sum. See, also, R. C. C. 2796. [4] But since, as aforesaid, the directors assumed no personal liability as to the outlay which plaintiff was to make, it follows necessarily that they did not bind themselves for the equivalent thereof, to wit, the payment of interest thereon perpetually. Hence their liability for interest must cease at some time; and our conclusion is that it should cease, at the latest, when the directors ceased to have any further interest in the stock; which was precisely when the bank ceased to be a going concern and there could be no further hope of rehabilitating the stock. We say it should cease then at the latest; because plaintiff, being under no obligation to suffer a loss upon its purchases beyond what might be covered by the pledged stock, evident from the judgment he rendered that he fixed the quantum of the interest due at that time by all the directors at $4,895.71. Taking a bird's-eye view of this calculation, it cannot be far wrong; and it is not challenged by either side. But we have not undertaken to verify the long calculations by which that figure must have been reached. No court is required to investigate for itself long and intricate accounts, much less an appellate court. Code of Practice, art. 443, and authorities noted in Rochl's Edition thereof. Hence if we thought there was any serious error in the calculations, we would appoint experts to report thereon, as we have a right to do. Wilcox v. Henderson, 9 La. Ann. 347, 348; Bass v. Chambliss, 9 La. Ann. 376, 389, 390; Sigur v. Crenshaw, 10 La. Ann. 297, 298. But we will not do so in this case unless requested by the parties. As this defendant's proportion of this $4,895.71 is as 64 to 477, it amounts to $656.64. Thus defendant's total liability is as follows: Proportion of interest.... Total Less refund on 5 shares.. $656 64 320 00 $976 64 63 50 Net amount due by this defendant......... $913 14 VII. [6] For the rest, 'plaintiff is entitled to interest on $320 due for commissions (at least) from judicial demand as prayed for. R. C. C. 1935, 1938, 1940. [7] But our conclusion is, after mature con sideration, that under R. C. C. 1934, interest was no longer under obligation even to hold terest, in the absence of an express contract therefor. Under what circumstances such express contract may be validly made, it is not necessary to consider now, since there was no contract to that effect made here. haps that whilst there is life there is hope, and we conclude that in all equity the directors should pay interest to the date of the final crash, to wit, when the bank ceased to be a going concern as aforesaid. VI. [5] All parties agree that the trial judge stopped the interest at that time; and it is VIII. The trial judge allowed plaintiff $997.90, which under the answer to the appeal must be reduced to $913.14 as above. On the other hand, he failed to allow interest on the com Decree. The judgment appealed from is therefore amended so as to reduce the amount awarded plaintiff to $913.14, and allow legal interest on $320 thereof, from judicial demand; and as thus amended the judgment is affirmed, at defendant's cost in both courts. (156 La.) (100 So.) No. 24653. LABOURDETTE v. DOULLUT & WILLIAMS SHIPBUILDING CO., Inc. Plaintiff's petition, after setting forth the amount of damages to which he considers himself entitled, alleges: "That on the 25th day of September, 1919, your petitioner's minor son, Adrian Labour(Supreme Court of Louisiana. May 5, 1924.) dette, while in the employ of the said defend(Syllabus by Editorial Staff.) 1. Courts99 (2)-Overruling exception to petition does not preclude court from sustaining objection to testimony based on same ground as exception. Overruling exception to petition on ground of "no cause of action" does not render court without right to entertain and sustain objection to receipt of evidence based on same ground as was the exception. 2. Pleading228-In determining sufficiency of petition, allegations taken as true. In determining sufficiency of petition on exception, allegations must be taken as true. 3. Master and servant 351-Remedy under Employers' Liability Act exclusive. Remedies under Employers' Liability Act are exclusive in cases governed by that act. 4. Master and servant 401-Petition for damages under statute must show employment not governed by Compensation Act. Petition in action under Civ. Code, art. 2315, for damages for death of plaintiff's son, which failed to allege that employment of deceased was not governed by Employers' Liability Act, held insufficient to show cause of action. 5. Master and servant 401-Plaintiff in action under statute not entitled to compensation under Liability Act. Plaintiff in action under Civ. Code, art. 2315, for death of minor son, failing to state cause of action under that section, held not entitled to recover under Employers' Liability Act in same action. ant, the said Doullut & Williams Shipbuilding Company, Inc., and whilst working for the said defendant as a 'rivet passer,' and helper to a 'holder-on,' or 'riveter,' and whilst at work on a platform of a scaffold inside of ship No. one (1), which was then under construction by the said defendant, in this said yard in this parish and state, and whilst in the performance of his duties in such capacity, was thrown and precipitated from the top of the platform of the said scaffold where he was working, and where he had a right to be, to the 'tank top' or floor below, a distance of about thirty (30) feet, fatally and terribly injuring him, externally and internally in almost every part of his body and especially crushing his skull, and breaking his neck, from which injuries his said minor son died about fifteen minutes later." The petition then sets out, substantially, that the accident was caused by no fault of the deceased, but was due solely to the fault of defendant in failing to provide a safe place for the deceased to perform the work assigned to him. The petition contains the allegation that the place furnished for this purpose consisted of a scaffold in which there was a defective plank, and sets out that the deceased knew nothing of the dangerous condition of the scaffold, and that, while the deceased was at work on the scaffold, the defective plank broke, and as a result the deceased fell 30 feet, and was killed. Plaintiff then alleges that his son, at the time of the accident, was 17 years and 7 months old, was earning $3 a day, and had bright prospects for advancement. The petition contains no allegation to the Appeal from Civil District Court, Parish of effect that plaintiff, as the father of the deOrleans; Porter Parker, Judge. Action by Jules Labourdette against the Doullut & Williams Shipbuilding Company, Inc. Judgment for defendant, and plaintiff appeals. Affirmed. Farrar & Woulfe, of New Orleans, for appellant. James C. Henriques, of New Orleans, for appellee. ceased, a minor under the age of 18 years, elected in any manner, prior to the accident, that his son should not be subject to the provisions of the Employers' Liability Act (Act No. 20 of 1914), nor one that defendant elected that it should not be subject to the act; nor does the petition contain any suggestion of any election whatever, made prior to the accident, that the deceased should not be so subject; nor does the petition contain a de By Division C, composed of OVERTON, mand for compensation under the act. The ST. PAUL, and THOMPSON, JJ. OVERTON, J. Plaintiff's son, a minor aged 17 years and 7 months, was killed accidentally while in the employ of defendant. Failing to effect a satisfactory settlement with defendant, plaintiff brought the present suit for damages, under article 2315 of the Civil Code, which provides that: "Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. *" prayer of the petition is simply for judgment against defendant for $20,000 damages, with legal interest thereon from judicial demand, for all orders and decrees necessary in the premises, and for general relief. Defendant, before answering this demand, filed an exception of no cause of action. This exception was overruled. Defendant then, after reserving the benefits of the exception filed by it, answered plaintiff's demand. The case was fixed for trial; and, at the opening of the trial, defendant ob For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |