(100 So.) to Grace that they would go alone to see the chase, but at a price less than defendants agent of defendant company on the afternoon of November 20, as putting an end to the services of Grace, as far as he was concerned. But no express notice of the termination of Grace's agency was given to him by Robert on that occasion. asked. The latter rejected the offer and discharged the broker, but, shortly after, through another agent, sold the property to the person whose name was communicated by plaintiff and for the price originally offered by him. It was held in that case that defendants could not, by discharging the plaintiff and consummating the negotiation through another, deprive him of his right of compensation for services which eventually inured to their benefit. This court said in the Gottschalk Case: [1] The state of facts, therefore, with which we have to deal, is one where the principal has sold the property, at a price purporting to be less than that originally offered, to a prospective buyer procured by the agent, while negotiations were pending between the principal and the agent, and without any notice to the agent by the principal. It is well settled that where à broker, who is employed to sell property at a given price, and for an agreed commission, has opened negotiations with a purchaser, and the principal, without terminating the agency or negotiations so commenced, takes it into his own hands, and concludes a sale for a less sum than the price fixed, the bro-muneration for his services, in proportion to ker is entitled, at least, to a ratable proportion of the agreed commission. This rule is supported by numerous authorities, upon the ground that the broker is, in such a case, really the moving cause of the sale, as he has brought the parties together and thereby procured a purchaser and performed his contract which was contingent upon his success. Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 42 Atl. 667, 44 L. R. A. 350, 351, note, citing numerous authorities. In the case of Hovey v. Aaron, 133 Mo. App. 573, 113 S. W. 718, it is held that"If defendant, while plaintiffs' authority to sell stood unrevoked, chose to sell the property, either in person or through another agent, to a customer procured by the efforts of plaintiffs for a less price than that which plaintiffs were authorized to offer, that was his privilege, but he will not be permitted to reap the fruits of plaintiffs' labor and then deny them their just reward." See, also, Paschall v. Gilliss, 113 Va. 643, 75 S. E. 220, Ann. Cas. 1913E, 783; Lawson v. Black Diamond Coal Min. Co., 53 Wash. 614, 102 Pac. 759; Martin v. Silliman, 53 N. Y. 615. The decisions above quoted, when considered as a whole, are based, not only upon the principle that in such cases the agent is considered as the proximate or procuring cause of the sale, but also upon the equitable maxim that the principal shall not be permitted to enrich himself at the expense of the agent or broker, whose services have inured to his benefit. We expressly adopted this principle into the jurisprudence of this state at an early date. In the case of Gottschalk v. Jennings, 1 La. Ann. 5, 45 Am. Dec. 70, the defendants employed plaintiff, a broker, to sell certain property. Plaintiff communicated to them the name of a person who offered to pur from the services of Gottschalk, and they ought "The defendants have received an advantage to pay for them. The general rule of law as to commissions is, that the whole service or duty must be performed, before the right to any commission attaches; for an agent must complete the thing required of him before he is entitled to charge for it. But cases may occur, in which an agent may be entitled to a re what he has done, although he has not completed the business. See Story on Agency, 338; Hammond v. Holiday, 1 Carrington & Payne, 429. We consider this such a case. Here the entire performance by plaintiff was prevented by the act of the defendants (principals). They took the business out of his hands, intrusted it to others, and soon after the bargain with Mercer was closed." (Italics ours.) We said in the case of Taylor' v. Martin, 109 La. 137, 33 South. 112, that "Where no time for the continuance of a contract of brokerage is fixed, either party is at liberty to terminate it at will, subject only to the ordinary requirements of good faith." (Italics ours.) We distinctly held in the Gottschalk Case that the discharge of the agent who had procured a purchaser, and the closing of the deal with the same purchaser a short time afterwards, through another agent, was an act of bad faith. It would be equally an act of bad faith upon the part of the principal in such a case, if the sale should be made personally by him. If brokers could be legally discharged by their principals, shortly after prospective purchasers were found, and the sale could be effected directly by such principals, or through the medium of another agent, to the same purchaser, then Othello's occupation would be gone-there would be no more commissions collected ; no more realtors. Counsel for defendant company cite the case of Ford v. Shaffer, 143 La. 635, 79 South. 172. In that case, the owner sold the property to the prospective buyer, long after the broker had tried and failed to effect a sale. It is stated in the opinion in that case that more than ten month's had elapsed and that the broker did not aid at all in the transaction. Such is the purport of the decisions in Lewis v. Manson, 132 La. 817, 61 South. [ of $82,400, which included the agent's com835, and Hauch v. Bonnabel, 134 La. 847, 64 mission: South. 795, upon which the Ford Case is predicated. [2] The prospective purchaser in the case before us had nothing to do with the payment of the commissions. He was in no way bound for them, and it was not in his power to terminate his relations with plaintiffs on the very eve of the consummation of the sale, in order to protect defendant company by a discharge of the broker, against "the requirements of ordinary good faith" and the imperative demands of fair business dealing. Judgment affirmed. Rehearing refused by Division C, composed of Justices OVERTON, ST. PAUL, and THOMPSON. No. 26143. (156 La.) CONTINENTAL SUPPLY CO. v. FISHER (Supreme Court of Louisiana. March 24, 1924. The defendant company itself made no attempt whatever to sever its relationship with the agent in this case before the sale was effected. If it had done so, in the very face of the sale, or shortly afterwards, it would. have incurred the same liability for the commission as was imposed upon the defendant in the Gottschalk Case, cited in this opinion. [3] It is true that a principal may reserve his right to sell his property at a fixed net price, and may deny to a broker the exclusive right of sale. The principal, in such event, may sell his property either directly or through any agent to a third person; but he cannot, in any case, dispose of the property to a prospective purchaser introduced by an agent and deprive the agent of his commission, either by discharging him shortly before or after the sale, or by silently ignoring his rights in the premises. The principal, in order to relieve himself of liability in such a contingency, must either notify the agent of the offer and give him a reasonable time to protect his commission, or he must decline the sale. Good faith and fair methods of trade require such a course of conduct, and nothing short of this will shield a principal against the payment of the commissions of the agent, unless there is a bona fide discharge of the agent, or such length of time has elapsed as to show that the effort of the agent was not a contributing cause of the sale. While the agent and the prospective purchaser testify that the movables, in addition to the plantation, included in the sale, were in the nature of concessions, authorized by the controlling stockholders of defendant company, we are not inclined to accept such concessions as a good reason for a diminution of the purchase price of the sale of the plantation. We regard these concessions, not in the light of actual deductions from the purchase price, but rather as "langniappe," or gratuitous additions to the sale, as said sale was made for the sum of $80,000, the amount of the net purchase price, notwithstanding these concessions. The real less price at which the property was sold in the case was $80,000, instead of the price (Syllabus by Editorial Staff.) Action 70-Plea of prescription and prayer for dismissal held to waive abandonment of suit for want of prosecution. Where judgment on note was taken in solido against defendant as maker and against the indorser, although no preliminary default had been entered against maker, defendant, by plea of prescription of four and five years and prayer for dismissal filed because of necessity of preventing entry of preliminary default to be followed by judgment, and being in effect an answer, waived right to claim abandonment of suit for want of prosecution for five years under Civ. Code, art. 3519. 2. Limitation of actions 126-Prescription; legal citation of one solidary debtor interrupts prescription as to all during pendency of suit. Legal citation of one of several solidary debtors interrupts prescription as to all during pendency of suit, in view of Civ. Code, arts. 3518, 3551, 3552. 3. Action 70-Demand in reconvention by plaintiff in answer to demand in nullity held reinstitution of suit as against claim of abandonment. Where defendant in suit on note filed demand in nullity to judgment in solido against defendant and indorser, demand in reconvention by plaintiff in answer to demand in nullity held reinstatement and reinstitution of suit against defendant and constituted prosecution of suit as against claim of abandonment. Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge. Action by the Continental Supply Company against the Fisher Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed. Modisette & Adams, of Jennings, for appellant. Lee & Bell, of Mansfield, and J. S. Atkinson, of Shreveport, for appellee. By Division A, composed of O'NIELL, C. J., and ROGERS and BRUNOT, JJ. tion is as follows: (100 So.) On June 27, 1916, plaintiff sued the Fisher Oil Company, as maker, and G. B. Zigler, as indorser, on a certain promissory note for $11,682.25, with interest and attorney's fees. Zigler answered. His codefendant did not. ROGERS, J. The history of this litiga- On February 19, 1923, plaintiff answered the demand in nullity, averring that by its plea of prescription of four and five years the Fisher Oil Company had waived its right to claim the abandonment of the suit against it for want of prosecution for five years. By way of reconvention, plaintiff prayed for judgment against said oil company for the amount of the note, interest, attorney's fees, and protest fees, declared on in the original suit. The case was tried, and on April 12, 1917, the district court gave judgment against both defendants in solido, notwithstanding no preliminary default had been entered against the Fisher Oil Company. On June 20, 1922, the Fisher Oil Company On April 25, 1917, defendant Zigler ap- filed a "Plea of Prescription and Abandonpealed devolutively to this court. On November 30, 1919, the Fisher Oil Company answered the appeal, praying to have the judgment against it annulled. Appearer not having appealed from the original judgment, this court found itself powerless to grant the relief prayed for, and, accordingly, affirmed the judgment. See 150 La. 890, 91 South. 287. The opinion and decree was filed in the district court on March 25, 1922. The Fisher Oil Company, on May 24, 1922, filed a motion, styling it a "plea of estoppel," in the court below, in which it set forth that the note sued on was extinguished by the prescriptions of four and five years, and that the suit had been abandoned and was barred by the prescription of five years, during which period no action therein had been taken as against mover. The prayer was that the plea of prescription be sustained, and that the judgment in so far as it pretended to be "against your respondent be annulled and declared absolutely void, and plaintiff's demands as to respondent be rejected and its suit dismissed at its cost." On June 20, 1922, the same pleader filed another motion, styled a "Demand in Nullity," in which the nullity of the judgment against it was alleged, because rendered without issue joined by a preliminary default, and further averring that the suit had abated and become barred by the prescription of five years for want of prosecution. In opposition to these pleadings by the Fisher Oil Company, plaintiff on November 27, 1922, interposed a plea, denominated as an "Exception to the Jurisdiction, Plea of Estoppel, Res Adjudicata, and Motion to Strike Out." In this plea, plaintiff alleged want of jurisdiction because of the appearance by the Fisher Oil Company in this court by its answer to the appeal of its codefendant, holding said appearance to be an acquiescence in said appeal, and as divesting the district court of jurisdiction in the cause; that the demand in nullity as made was unauthorized by law, the correct procedure being a direct action to annul against all parties to the original suit; that the judgment of April 12, 1917, affirmed on appeal, was res judicata, and could only be annulled, if at all, by a direct action in nullity. The plea was overruled on December 12, 1922. 100 SO.-5 ment" to plaintiff's answer and reconventional demand, in which it again urged the pleas of prescription and abandonment under the provisions of article 3519 of the Civil Code. On the issues as thus made up, judgment was rendered in favor of plaintiffs as prayed for in its said reconventional demand. The Fisher Oil Company appealed from the judgment. In its so-called "Plea of Estoppel," filed May 24, 1922, the Fisher Oil Company alleges that the "note sued on as well as the cause of action" has been prescribed by the prescription of four and five years under the laws of Texas and Louisiana, and the prayer is for the maintenance of the plea of prescription, the nullity of the judgment, and the dismissal of plaintiff's suit. In its so-called "Demand in Nullity," filed on June 20, 1922, said company prayed for the dismissal of plaintiff's suit on the ground that the action had abated and become barred for want of prosecution by the prescription of five years. Plaintiff, on the other hand, urges that the citation of defendant in the original suit had the effect of interrupting prescription on the obligation sued on until it became mérged into a valid judgment, or until the suit had been declared abandoned; that the judgment in its favor, though invalid, prevented the running of the term necessary for abandonment, which remained suspended until said judgment was set aside; that the resistance offered in this court by plaintiff to defendant's attempt to reverse the judgment was an act in prosecution of the suit; and that the plea of prescription filed by defendant more than five years after the last step of prosecution by the plaintiff constituted a waiver of any right to claim an abandonment of the suit. [1] It is unnecessary for us to pass upon all the points of law raised by plaintiff, since we have reached the conclusion that defendant by its plea of prescription of four and five years to the note and cause of action, and its prayer for the dismissal of plaintiff's action, waived its right to claim the abandonment of the suit. The plea was filed under the stress of necessity created by plaintiff to prevent the entering of a preliminary default, to be followed by a judgment rendered on confirmation thereof. It was, in effect, an [1923, to the demand in nullity instituted by answer to plaintiff's demands. An answer said oil company. to the merits waives the objection that the suit has been abandoned for want of prosecution for five years. Geisenberger v. Cotton, 116 La. 651, 40 South, 929. The case of Lips v. Royal Insurance Co., 149 La. 359, 89 South. 213 to which we have been referred, does not parallel the case at bar. In the cited case, the appearance by the plaintiff was unnecessary, and the answer was filed before the expiration of the fiveyear period, when there was nothing to waive. [2] The prescriptions pleaded by defendant are untenable. The running of prescription was interrupted and suspended by the filing of the suit, and the service of citation on both the Fisher Oil Company and G. B. Zigler. The law is that legal citation of one of several solidary debtors interrupts prescription as to all. The interruption of prescription by a suit works a suspension of prescription as to every one affected by the interruption during the pendency of the suit. Civil Code, arts. 3518, 3551, 3552; Turner, Wilson & Co. v. McMain, 29 La. Ann. 298; Woodcock v. Baldwin, 110 La. 277, 34 South. 440; South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 66, 83 South. 378. The case of Britton v. Bush, 31 La. Ann. 264, does not hold to the contrary. The facts in that case were entirely different. The suit against Miss Bush was instituted more than seven years after the judgment had been rendered against her co-obligor. So that, granting that prescription was suspended as to Miss Bush up to the time of the rendition of the judgment, it began to run again from that date, and more than five years elapsed before she was again sued on the obligation. The real issue involved in the case arose from the attempt of the plaintiff to substitute the prescription applicable to judgments for the prescription applicable to promissory notes. The contention was there made that a judgment constitutes a perpetual acknowledgment on the part of the judgment debtor, and therefore the acknowledgment of the debtor interrupted prescription as to his solidary debtors. The court held against the contention in the following language: "The fallacy is exposed by saying that if the premise was true there would be no prescription of judgments." The court also declined to accede to the proposition that the rendition of the judg ment against one of the solidary obligors from the nature of things created a common term of prescription for all. [3] The original suit herein was not disposed of by this court until March 20, 1922, and plaintiff's suit was, in effect, reinstated and reinstituted against the Fisher Oil Company by its demand in reconvention incorporated in its answer, filed on February 19, We see no error in the judgment appealed from. Judgment affirmed. Rehearing refused by Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ. 2. Bills and notes 489 (3) Maker must challenge holder's good faith before proving fraud or want or failure of consideration. Maker must affirmatively and specifically suing upon note, before he can offer proof of challenge good faith of holder in due course, fraud or want of interest in holder or for failure of consideration. 3. Bills and notes 489 (3)-Answer held insufficient to admit evidence of defects in property for which note sued on given. in due course, answer failing to allege bad faith In suit on note brought by bona fide holder or want of consideration, or that plaintiff was not in fact legal holder for value before maturity, held insufficient to warrant admission of testimony of latent defects in property for which note was given and of misrepresentations on part of seller's agents. (100 So.) other. Judgment for plaintiff, and defend- failure is an ascertained and liquidated amount ants appeal. Affirmed. or otherwise." Section 28, Act 64 of 1904. Foster, Looney & Wilkinson and Dimick & Hamilton, all of Shreveport, for appellants. E. W. & P. N. Browne, of New Orleans, for appellee. By Division A, composed of O'NIELL, O. J., and ROGERS and BRUNOT, JJ. "A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon." Sec tion 57, Act 64 of 1904. [2] The maker of a note must affirmative BRUNOT, J. This is a suit upon a prom-ly and specifically challenge the good faith issory note for $3,000, with interest thereon at the rate of 8 per cent. per annum from December 30, 1921, and 10 per cent. on the principal and interest as attorneys' fees. The note is secured by a chattel mortgage on an automobile and a pledge and pawn of 35 shares of stock in the Pelican Corporation of Shreveport, La. The petition alleges that plaintiff is the holder and owner of the note for value before maturity. Plaintiff obtained an order of court and sequestered the automobile. Defendants filed their answer to the suit, and also filed a motion to dissolve the sequestration. The motion to dissolve the sequestration was referred to the merits, the case was tried, and judgment was rendered in the words and figures as follows, to wit: "It is ordered, adjudged, and decreed that there be judgment herein in plaintiff's favor and against defendants, W. S. Goodman and J. R. Hollingsworth, individually and in solido, in the sum of $3,000 with interest thereon at the rate of 8 per cent. per annum from December 30, 1921, until paid together with attorney's fees of 10 per cent. on principal and interest. "It is further ordered, adjudged, and decreed that plaintiff's first lien and privilege as mortgage creditor on one Haynes automobile No. 34,921, with coupé body, and 35 shares of stock in the Pelican Corporation of Shreveport, La., of a par value of $100, each be recognized and enforced, maintaining the sequestration sued out herein, and that said property be sold at public auction and according to law, and that plaintiff be paid out of the proceeds thereof by preference and priority over all other creditors of said defendants." From this judgment the defendants have appealed. of the holder in due course, suing upon it, before he can offer proof of fraud, or want of interest in the holder, or for failure of consideration for the note. Banks v. Eastin, 3 Mart. (N. S.) 291; McKinney v. Beeson, 14 La. 254; Citizens' Bank of Louisiana v. J. Strauss, 26 La. Ann. 736; 8 Corpus Juris, 966, 983, 911. The note sued upon was made payable to the vendees or their order, and was indorsed by them in blank. It was paraphed "Ne Varietur" to identify it with a chattel mortgage. The note represented the purchase price of two automobile trucks, each truck being equipped with a 750-gallon gasoline tank, and one storage tank of 10,880 gallons capacity, situated at Cedar Grove, Caddo parish. The defendants acquired the property from T. M. Hall, representing the Hall Oil Company, Inc., and the note was acquired by the plaintiff from T. M. Hall, in due course, before maturity, and for value. [3] During the course of the trial the defendants offered proof of latent defects in the trucks and storage tank and of misrepresentations on the part of the agents of the Hall Oil Company, Inc., with respect to the original cost and condition of the trucks and tank prior to the sale to them. Plaintiff objected to the testimony, and reserving all rights thereunder he now urges the objection here. We think the lower court erred in overruling plaintiff's objection. The answer does not allege facts warranting the admission of the testimony. There is no allegation that the plaintiff acquired the note in bad faith or without consideration, or that it was not in fact the legal holder and owner thereof for value before maturity. It is true that paragraph 1 of the answer contains a mere denial of six paragraphs of plaintiff's petition, as follows: The answer filed by defendants in the court below admits the signatures to the note, the execution of the chattel mortgage and pledge of Pelican Corporation stock, and "They admit that they signed a note attached that the note is past due and unpaid. There to plaintiff's petition and the act of mortgage is no specific allegation in the answer chal- mentioned therein, which speak for themselves, lenging the good faith of plaintiff as the hold- but in every other respect and every other parer of the note in due course, as indorsee, for ticular they deny the statements made and alvalue. The defense relied upon is the allegations contained in articles 1, 2, 3, 4, 5, and 6 of plaintiff's petition." leged failure of consideration for the note. [1] Absence or failure of consideration is not a defense against a bona fide holder in due course. "Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the Article 1 of the petition alleges the indebtedness of defendants; article 2, the plaintiff's ownership of the note for value before maturity; article 3, the execution of the mortgage; article 4, the paraph of the note; article 5, the stipulations and agreements in the act of mortgage and its recor |