Goaster et al. v. Lafon Asylum et al., 155 La. | ing Sprague Inv. Co. v. Mouatt, 14 Colo. App. 158, 99 South. 22. Now, as shown by the statement of facts, McDonald purchased on March 12th, and recorded his deed on April 6, 1920, all within 45 days after February 23. So that, when McDonald acquired the property, he took it with full notice (in contemplation of law) that a lien might be recorded within said 45 days after February 23; and as to him the property might have been affected by a lien so recorded, regardless of the personal obligation which he assumed in his deed of purchase. 107, 60 Pac. 179; Willamette Lumber Co. v. McLeod, 27 Or. 272, 40 Pac. 93; Collins v. Snoke, 9 Wash, 566, 38 Pac. 161; Edwards v. Derrickson, 28 N. J. Law, 39; Missoula Merc. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. 594, 991; Corbett v. Chambers, 109 Cal. 178, 41 Pac. 873. See also, Waters v. Johnson, 134 Mich. 436, 439, 96 N. W. 504. And the reason why the name of the actual owner is required is because "it is by the name of the owner only that the index to the records can be made, so as to guide in the examination for incumbrances upon the owner's title." Kelly v. Laws, 109 Mass. 395. In Shepherd v. Leeds & Co., 12 La. Ann. But as to those who acquired rights upon the property subsequent to said 45 days (that is to say, subsequent to April 8, 1920), appel-1, the defendants claimed a lien upon certain lant's privilege depends upon whether or not the recordation of its claim (as recorded) on June 17, 1920, created a lien and privilege upon the property from that day on; and the mortgage held by the appellee Mrs. Nelson was granted on July 29th (that is to say, 42 days after appellant recorded its claim). III. Had the property still belonged to Jones on July 17, 1920, when appellant recorded its claim, the recordation as made might perhaps have sufficed. However, the statute (section 2) requires that the statement filed for record should set forth "the name of the owner"; and there are authorities from other jurisdictions holding under similar statutes, that the owner must be designated as such which in this case was not done. For the recorded statement reads simply: "That said corporation (appellant) furnished materials to L. M. Rudy, who had a contract with B. E. Jones to construct a one-story frame building and garage on lots 1 and 2," etc. However, we now express no opinion on this point, as it is not necessary for a decision of this case, and it will be time enough to do so when the necessity arises. [2] Be that as it may; after the expiration of the 45 days during which the claim might have been recorded nunc pro tunc as it were, that is to say, with retroactive effect, and after the ownership of the property had passed to McDonald, we think that no lien or privilege resulted from recording the claim against Jones who was no longer the owner of the property For a lien or privilege exists only by virtue of some statute creating it, and can be acquired only by complying strictly with the terms of such statute; and this statute requires that the statement should set forth the name of the owner property which had once belonged to one Fulton, being for the price of certain machinery sold to the latter and placed upon said property; and for which he gave certain time drafts drawn by himself upon one Hall but not accepted by Hall. At the time the drafts were given and the lien recorded said Hall was the owner of the property. Thereafter Hall sold to Wood & Barrow, through whom plaintiff claimed title. This court said: "By article 3229 of the Civil Code [(3239?), now R. C. C. 3272], it is provided that contractors and those who have supplied the owner materials for the construction or repair of his buildings or other works, preserve their privilege only in so far as they have recorded with the register of mortgages the act containing the bargain they have made, or the amount or acknowledgment of what is due them, in all cases where the amount of the bargain or agreement, or the amount of the account or acknowledgment exceeds the sum of five hundred dollars. "The registry made by Leeds & Co. of their draft is not a registry against the owner of the property, and cannot prejudice third parties acquiring rights from the owner. The purchasers were only bound to examine the office of the recorder in the name of Hall in order to ascertain whether any privileges had been created upon the property during the period that Hall was the owner of it. "The draft, until accepted, is no agreement or bargain of Hall's, neither can it be called an account against or acknowledgment by him. The registry of the draft, therefore, against one not owner cannot affect the immovable as against innocent purchasers, although the machinery may have increased the value of the immovable by having become a part thereof. "As the contract of Leeds & Co. has not been recorded so as to operate as a privilege upon the property in controversy, the injunction sued out in this case [against the attempted seizure, and sale of the property to satisfy the alleged privilege] must be perpetuated." The point in the case is that the owner against whom the lien must be recorded by the furnisher of materials is the owner at the time the lien is recorded and not the former owner with whom the materialman con But the owner so meant is the owner at the time the statement is filed for recordation, and not one who has parted with the title before that time. See Davis v. Big Horn The judgment appealed from is therefore managed by her late husband, Louis Fabachaffirmed. Rehearing refused by Division B, composed of DAWKINS, LAND, and LECHE, JJ. (156 La.) No. 26393. er, entered into a written contract of hiring with the American Cigar Company, which, at that date, was doing business in the city of New Orleans under the name of Seidenberg & Co., one of its branches. This contract reads as follows: "New Orleans, November 13/19. "The Washington Transfer Co., L. Fabacher, manager, agrees to furnish Seidenberg & Co. AMERICAN CIGAR CO. v. FABACHER et al. Branch an open spring wagon, good mule, and In re SAUR. honest sober driver to do hauling in and out of said Seidenberg Branch during business hours for the sum of $30.00 per week payable weekly (Supreme Court of Louisiana. April 30, 1924.) steady, and contract goes into effect Monday (Syllabus by Editorial Staff.) 1. Contracts 322 (3) Defendant's negligence in selecting driver for plaintiff not shown. Where defendant contracted to furnish plaintiff a wagon and an honest, sober driver to do hauling, and the wagon containing a quan tity of plaintiff's cigars was stolen while the driver was at lunch, evidence held insufficient to show negligence or carelessness of defendant's manager in selecting the driver. 2. Contracts 190-Master held not liable under contract to furnish an "honest" and "sober" driver, for loss of goods while in driver's care. November 17/19 and expires May 17, 1920. "727 Washington Avenue." Plaintiff company accepted this contract and did business under its terms. The present suit is for the recovery of the sum of $1,317.50, the value of four cases of cigars, each containing 5,000 cigars, which had been intrusted to the driver furnished plaintiff company by defendant transfer company; the wagon, mule, cigars, and driver's coat left by him in the wagon having been stolen by some third person while the driver was absent about 10 minutes at lunch at the Poydras market. Plaintiff company's suit is based squarely upon the allegation: Where defendant agreed to furnish plaintiff a wagon and an "honest, sober driver" for hauling and a quantity of plaintiff's cigars was stolen together with the wagon while the driver was at lunch, defendant was not liable "That said driver furnished to petitioner on under his contract when interpreted in view March 4, 1920, was not an honest sober driver, of Civ. Code, arts. 1945, 1946, 1963; an "hon-and, in fact was a grossly negligent and careest" man being one who is fair and candid in dealing with others, and the word "sober" meaning moderate in, or abstinent from, the use of intoxicating liquors. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Honest; Sober.] Action by the American Cigar Company against Louis Fabacher, doing business as the Washington Transfer Company, in which by supplemental petition Louise Saur, widow of Louis Fabacher, was made a defendant. Judgment for Louise Saur was reversed by the Court of Appeal, Parish of Orleans, and less driver, and said defendant, Louis Fabacher, breached his contract with petitioner, and was negligent and careless in employing and furnishing to your petitioner such a negligent and careless driver." Louis Fabacher answered the petition, denying the allegations therein contained, and specially averring that the business of the Washington Transfer Company was conducted by him as manager, and is the separate and paraphernal property of his wife, Louise Saur. After answer filed, plaintiff company presented to the lower court an amended petition, especially pleading all of the alle For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes gations and facts set forth in the original furnished by defendant company, such limpetition, and averring that Mrs. Louise Saur Fabacher was and is interested in said transfer business, and that said Louis Fabacher was acting as her agent in making and signing the contract with petitioner sued upon, and praying for judgment in solido against both defendants. itation is the result of mutual and voluntary covenant between the parties and not of compulsory agreement, as where a common carrier should decline to receive freight except under bills of lading stipulating against its acts of negligence in all cases. That the contract between the parties is one of lim [1] The uncontradicted testimony of Fa-ited liability is apparent from its plain and bacher is to the effect that the driver fur- unambiguous terms. nished by the defendant transfer company to plaintiff company "was a good, honest, sober and reliable driver, and came with highest recommendations." This testimony necessarily eliminates any question of liability for any alleged negligence or carelessness on the part of Fabacher, as manager of defendant transfer company, in selecting and furnishing to plaintiff company the driver in question. The words of a contract are to be understood in their general and popular use. R. C. C. art. 1946. An "honest" man is one who is fair and candid in dealing with others; true, just, upright, trustworthy. The antonyms of "honest" are "dishonest; deceitful; fraudulent; lying; unscrupulous; false." Funks & Wagnall's Stand. Dict. The cigars were not lost either through the dishonesty, deceit, or fraud of the driver in question. The transcript is barren of any testimony tending to show that the. driver was dishonest, or that he was addicted to the use of The word "sober," in its common and usuliquor. On the contrary, it is shown that he al signification, means "moderate in or abwas not implicated in any way with the stinent from the use of intoxicating liquors." theft of the cigars, that he was not charged Its synonyms are "abstemious; abstinent; with such theft, and that he had never been temperate; unintoxicated." Its antonyms arrested for any crime or offense at any time. are "drunk; drunken; intemperate; intoxIt is not disputed that the driver was sobericated." at the time the cigars were stolen. More- It is not pretended that the cigars were over, the driver continued to work for plain- lost through the intoxication or drunkenness tiff company, after the loss of the cigars in of the driver. The loss to plaintiff company question. has occurred through no lack or absence of any of the special qualities of the servant warranted in the contract of hiring. [2] The sole question, therefore, remaining for decision, is whether the warranty in the special contract between the parties that the driver to be furnished shall be "an honest, sober driver," includes liability for any negligent act of said driver, or liability for dishonest acts committed by third persons. That such warranty is restricted by the express words of the agreement to the honesty of the driver furnished by defendant company is too plain for serious discussion. This is not a case where a third person has been run over and injured through the negligent act of the driver in the operation of his wagon. The decisions cited by the Court of Appeal, therefore, have no application. Bohan v. Metropolitan Express Co., 122 App. Div. 590, 107 N. Y. Supp. 530; N. O. B. R. V. & M. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191. These decisions are also not in point, for the further reason that they are based upon the general law of torts, while the plaintiff company in this particular case relies upon the breach of a special contract of hiring as grounds for recovery. It is not possible for this court to add liability for negligence, or liability for the dishonesty of third persons, to the contract between the parties, without making an agreement to which, they have not consented. A written contract is presumed to express the intention of the parties, and it is the law of the case between the parties. Ker v. Evershed, 41 La. Ann. 15, 6 South. 566; Succ. of Bellande, 42 La. Ann. 241, 7 South. 535; R. C. C. art. 1945. The intent is to be determined by the words of the contract, when they are clear and explicit. R. C. C. art. 1945. When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some provision, which the parties had no right to modify or renounce. R. C. C. art. 1963. Defendant transfer company bound itself to furnish "an honest, sober driver," and complied with its contract. Plaintiff comThis contract was voluntarily sought by pany must therefore bear the loss of the ciplaintiff company, and was accepted by it, gars stolen from it by a third person. Third of its own free will and accord. If the con- persons, if injured by any careless or neglitract limits the liability of the defendant gent act of a driver furnished by one person company, for any loss or damage to plain- or company to another person or company, tiff company's goods, to acts of dishonesty are no parties to the special agreement be (100 So.) cause of action would necessarily arise ex delicto, and not ex contractu. It would be founded upon the law of tort, and not upon the obligation to repair the injury arising from the law of contract. The judgment of the Court of Appeal for the Parish of Orleans, reversing the judgment of the lower court dismissing the suit of plaintiff company, and awarding to said company the value of the cigars sued for, is in our opinion erroneous. For the reasons assigned, the judgment of the Court of Appeal for the Parish of Orleans is set aside and reversed, and the judgment of the civil district court of said parish, dismissing plaintiff's suit, is reinstated and affirmed, at the cost of plaintiff com pany. (156 La.) No. 25743. BOWERS v. LANGSTON et al. (Syllabus by Editorial Staff.) 1. Estoppel 91 (2)→Heir cannot rescind after receiving and disposing of share. Where heir had received and disposed of share of estate allotted to her in partition in which she was represented by one without authority, she could not rescind unless for lesion. 2. Partition 107-Partition proceedings held not null or subject to rescission for lesion. Where heir on partition of property of an estate suffered injury to extent of only one-sixth of her full share, because informally adopted child had been allowed to participate, error held not to render the partition radically null, or subject to rescission for lesion, there not having been a lesion beyond one-fourth, in view of Civ. Code, art. 1861. 3. Adverse possession 81-Prescription; unauthorized deed held sufficient to support prescription acquirendi causa. Deed translative of property signed in good faith by one not having authority to do so held sufficient on which to base a plea of prescription acquirendi causa, in view of Civ. Code, arts. 3478, 3484, 3485. Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge. Suit by Mrs. Mattie Bowers against Len Langston and others. Judgment for defend ants, and plaintiff appeals. Affirmed. Edwin C. Henning, of Evansville, Ind., and Donelson Caffery, John F. Phillips, James L. Dormon, and J. E. Harrington, all of Shreveport (Oliver O. Provosty, of New Orleans, and Julius T. Long, of Shreveport, of counsel), for appellant. Palmer & Hardin, Blanchard, Goldstein & Walker, T. M. Milling, Hampden Story, Wallace, Lyons & Wallace, and Thigpen, Herold & Lee, all of Shreveport, for appellees. By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ. ST. PAUL, J. At the time of their death George Shaw and Eliza Shaw, his wife, had six children, to wit: (1) W. G. Shaw; (2) Amos Shaw (deceased), the father of plaintiff; (3) G. W. Shaw, Sr.; (4) T. E. Shaw; (5) J. B. Shaw; and (6) Mrs. R. F. Simms. They had also informally "adopted" and received into their family, as a son, one G. W. Shaw, Jr., a remote kinsman, who, though never formally and legally adopted, yet "grew up in the family and was treated as a member thereof." Tr. 111. After the death of George and Eliza Shaw, to wit, on March 9, 1892, G. W. Shaw, Sr., T. E. Shaw, J. B. Shaw, Mrs. R. F. Simms, and plaintiff (representing the interest of her deceased father Amos Shaw) sold to W. G. Shaw and G. W. Shaw, Jr., "all of the lands belonging to the estate and succession of said George Shaw, and Eliza Shaw, deceased," to wit, a certain tract of land in Claiborne parish, comprising (say) 800 acres, and formerly called "the George Shaw Home Place." Tr. 3, 4, 13, 119. Some time thereafter (but prior to January 24, 1893) W. G. Shaw and G. W. Shaw, Jr., acquired from Beulah Lodge (Tr. 124) a certain tract of land afterwards known as the "Bonnie Thomas Property," being the same property which R. B. (Bonnie) Thomas acquired from Geo. W. Shaw, Sr., on March 15, 1904 (Tr. 128); who had acquired the 1896 (Tr. 126), and which plaintiff had acsame from plaintiff herein on January 9, quired from Geo. W. Shaw, Jr., and the heirs of W. G. Shaw, on January 24, 1893 (Tr. 124). At this point, it may be mentioned that apparently Bonnie Thomas claimed some sort of "equity" in this last-named property as late (or as early) as December 8, 1894; but so far as this transcript shows he never at any time had any title thereto until 1904, as aforesaid, and so that may be dismissed, even if it had any bearing on this controversy (McDuffie v. Walker, 125 La. 152, 51 South. 100), which we do not think it has.. W. Shaw, Sr., and from the deeds at pages It also appears from the testimony of G. 13 and 131 of the transcript, that W. G. Shaw, and G. W. Shaw, Jr., owned other lands in common at the time of the death of W. G. Shaw, and at page 138 of the transcript appears a deed which shows that W. G. Shaw and G. W. Shaw, Jr., had purchased still another piece of land in common, which also figures in the settlement of the succession of W. G. Shaw. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes I. On January 24, 1893, the following deed was duly executed and recorded: "We the undersigned heirs and legal representatives of Wm. G. Shaw, deceased, do hereby sell, transfer and deliver all our right, title and interest in and to the following described tracts of real estate, situated in Claiborne parish, to wit "The George Shaw home place, 800 acres, more or less, with improvements thereon, as recorded. "The T. B. Neal place. "The A. McGranie place. "The Callie Ashby place. "This transfer is made to Geo. W. Shaw, Jr., who owns already an undivided half interest in same. * * held no such power of attorney from plaintiff. On the other hand, it is shown by the evidence of Shaw, Sr., that the settlement of the succession was effected by allotting to each heir an equal share partly in personal property and partly in real estate, the other heirs making title thereto; and he is corroborated by the several deeds to be found in the transcript, particularly the recitals in the deed to G. W. Shaw, Sr., to be found at page 133 of the transcript and in the deed of ratification given by plaintiff to said Shaw, Sr., to be found at page 136 of the transcript. So that, if none but heirs in fact had been admitted to take part and receive shares in the settlement, we might here and now close the chapter upon plaintiff's claim; for it is quite certain that she could not be allowed to receive and dispose of her full share in the succession and then return to reclaim a share in what was given to her coheirs. "J. B. Shaw." II. IV. It is shown, however, that in addition to On the same day, to wit, January 24, 1893, the five heirs of W. G. Shaw (to wit, G. W. the following deed was also executed: “Know all men by these presents that we, J. B. Shaw, G. W. Shaw, Senior, T. E. Shaw, Francis Simms, wife of R. F. Simms, aided and authorized herein by her husband, being the heirs of W. G. Shaw, deceased, and G. W. Shaw, Jr., have and do by these presents grant, bargain, sell, convey and deliver unto Mrs. Mattie Bowers the following described lands and all improvements thereon, to wit: "[Then follows a description of the land referred to in argument, brief and testimony, as the "Bonnie Thomas property" but] being the same lands described in deed from Beulah Hodge to W. G. and G. W. Shaw, as shown by record, etc. [The price stated is $668.33 cash.]" This is the same land, which as heretofore said Mattie Bowers sold to G. W. Shaw, Sr., in 1896, and which the latter sold to R. B. (Bonnie) Thomas in 1904. III. At the time those two deeds were executed G. W. Shaw, Sr., had a letter from plaintiff giving him authority in general terms to act for her in the settlement of the Succession of W. G. Shaw, and send her the proceeds. She claims that she did not know that there was any real estate dependent thereon, but in view of the fact that she herself received as part of her share a piece of real estate, which she afterwards sold, as above said, we confess that her testimony in that respect does not impress us. Be that as it may, a power of attorney to sell real estate or dispose of an interest in a succession must be express and special (O. C. 2992, 2997), and for the purpose of Shaw, Sr., J. B. Shaw, T. E. Shaw, Mrs. the so-called "adopted son, was also adSimms, and the plaintiff) G. W. Shaw, Jr. mitted to a share in the succession with the full knowedge and consent of all the heirs present; but plaintiff is not shown to have had any knowledge of this fact, she being then absent. On the other hand, it is quite apparent from what was done that the partition which took place was not only a settlement between the heirs of W. G. Shaw, but also between these last and G. W. Shaw, Jr., who had a half interest in all the lands, independently of the succession of W. G. Shaw. So that G. W. Shaw, Jr., was properly a party to any partition of the lands held in common by the heirs of W. G. Shaw and himself and in any such partition was entitled to one-half in his own right. Thus the property should have been given five-tenths to G. W. Shaw, Jr., and one-tenth to each of the others. But, when he was admitted as a sixth heir, he actually received from the lands seven-twelfths, and each heir received only one-twelfth instead of one-tenth. Plaintiff therefore suffered injury by this partition to the extent of the difference be tween one-tenth and one-twelfth; that is to say, to the extent of one-sixtieth of the whole, being the difference between fivesixtieths which she did receive and sixsixtieths which she should have received. And yet, although injured only to the extent of one-sixtieth, she is claiming just six times that interest in the land, to wit, a whole tenth. So that in any event her claim is wholly without merit beyond one-sixtieth |