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(100 So.) The court ruled that where a charter exists "Gerth's Realty Experts, Liverpool, London & valid on its face it cannot be collaterally at Globe Bldg., New Orleans, Louisiana.-Gentacked. Counsel excepted to this ruling, and tlemen: I hereby give you the exclusive agenthe case was closed. After the argument or

cy in my tract of land near Pascagoula, in Misat its conclusion counsel for defendant con- sissippi, comprising about 11,000 acres with tended that the answer denied the existence the sale and exclusive right to sell and resell

the same for the period of four months from of the plaintiff corporation. Counsel for

this date. plaintiff announced that had he known the

"The minimum price which I will accept for corporate existence of his client was at issue the property is $75,000 (seventy-five thousand he would have filed the charter and he there- dollars). Your commission is to be 10% on the fore applied to the court to reopen the case actual selling price. for the purpose of permitting him to do so. "You are to pay the advertising expense and The court overruled an objection to the reo

further incidentals necessary.

"Yours very truly, Thomas W. Kracke." pening of the case and permitted the filing of

Transcript, p. 15. the charter. [3] The reopening of a case is a matter

It will be noted that this letter is signed by within the discretion of the court and under Thomas W. Kracke individually, and it conthe circumstances disclosed by this record stitutes Gerth's Realty Experts his exclusive the court's discretion was correctly and equi- sales agent for four months from its date. tably exercised.

Exhibit B is dated May 5, 1919, and is as [4] The filing of the charter in evidence

follows: and the admission in the transcript (page 81) establish the existence of at least a de facto "Mr. Charles S. Gerth, New Orleans, La.: corporation,

We hereby authorize you to accept $70,000 for “ If the state acquiesce in the usurpation of my entire Pascagoula property consisting of

11,000 acres more or less. corporate powers, individuals 'cannot

"The terms of sale and the manner of replain.' This rule finds authority in Cyc. vol. 10, leases to be as you outlined orally to me top. 256, wherein it is said that the rightfulness

night, viz.: of the existence of a body claiming to act, in fact acting, in the face of the state as a cor. $12,500 cash at time deed is executed. poration, cannot be litigated in an action be 5,000-six months after signing deed. tween private individuals and the assumed 5,000 twelve months after signing deed. corporation. * * The rightful existence 11,000 twenty-four months after signing deed. of a corporation cannot be raised in a collat 16,500 thirty-six months after signing deed. eral proceeding. New Iberia Sugar Co. v. La 16,000 forty-eight months after signing deed. garde, 130 La. 393, 58 South. 18; Nelson v. T. & P. Ry. Co., 152 La. 117, 92 South. 754.

$66,000

4,000 fifty-two months after signing deed. This suit was filed in 1919, and the authority of the general manager to file it is confer- $70,000.00. red by section 16 of Act 267 of 1914, which is "It is distinctly understood that I am not as follows:

to pay for any abstract or any other fee aside "That the

from your commission of 5%. Also that the timanager of a corpora

tle to about four or five or six hundred acres tion organized under the laws of Louisiana, or of a foreign corporation, doing business in this which we hold by adverse possession will not state , shall have power in the name and in be- be required to be warranted by me or us.

"Thos. W. Kracke. half of the corporation to authorize the insti

"Gulf Coast Orchard & P. Co., tution of any suit and other legal proceedings, and no exception of want of authority shall lie

“Thos. W. Kracke, Pres." on the part of any defendant."

Transcript, p. 15. [6] Defendant's denial that he is indebted fixes the amounts and terms of payments, re

This letter reduces the price of the land, to plaintiff or that he had any dealings with duces the commission to be paid the sales plaintiff is not sustained by the record. There is no averment in the answer that he agent to 5 per cent. and is signed by Thos. w.

Kracke for himself individually and for the would not have dealt with plaintiff.

Gulf Coast Orchard & Products Co., in his “In onerous contracts, such as sale, exchange, capacity as the president thereof. loan for interest, letting and hiring, the con On May 7, 1919, E. L. Martin submitted to sideration of the person is by law generally Thomas W. Kracke and the Gulf Coast Orpresumed to be an incidental cause, not a motive for a contract.” R. C. C. art. 1836; Car- chard & Products Company a proposal to pur

chase the entire property and to pay $68,000 lisle v. The Eudora, 5 La. Ann. 15.

therefor. The proposal provides for the cash The contract sued upon consists of two and subsequent payments and for certain reparts. It was filed with the supplemental leases. This proposal was accepted on the petition and marked as Exhibits A and B, same day, the acceptance appearing on the respectively. Both parts are in the form of last sheet of the proposal, following the sig. letters. Exhibit A is dated February 21, nature of E. L. Martin, in the following 1919, and is as follows:

words:

"New Orleans, La., May 7, 1919. not deposited in the bank, because the original "I hereby declare that I have read the above deed was never deposited. Transcript, pp. 62, and foregoing offer, and now accept same, in 63, 74. Mr. Martin's attorneys notified defendmy capacity as the representative of the Gulf ants to come to the former's office to pass the Coast Orchard & Products Co., and individually. sale. Defendant did not come at the appointed "Thomas W. Kracke.

time to sign the deed, which had been prepared. “Gulf Coast Orchard & Products Co. Transcript, pp. 61, 62, 66, 67. Mr. Martin is "Thos. W. Kracke, Pres.”

anxious and willing to secure this property, Transcript, pp. 16, 17, 18, 19, 20.

but defendants have refused to transfer it to

him. Mr. Martin has even filed suit against The testimony of Charles S. Gerth explains defendants in Mississippi for specific performthe reason for the reduction of the commis

ance. Transcript, p. 51. sion from 10 per cent. to 5 per cent. and the "Mr. Martin has done everything that he reduction of the price of the land to $68,000. agreed to do. He did not deposit the trust Transcript, p. 18.

deed, as a trust deed corresponds to a LouisiDefendant's denial that the contracts sued ana mortgage, and it was impossible for him upon were carried out by Charles S. Gerth to grant a mortgage until the property has and that Gerth acted in bad faith are refuted been transferred to him, as it has been stipu

lated. by the record.

" "The only effect of a deed of trust or com"If defendant relies on the nonperformance mon-law mortgage in the countries where they of the contract by plaintiff, he must allege the are used, is to establish a lien upon property.' fact in his answer. In pleading such nonper- Tillman, Trustee, v. Drake, 4 La. Ann. 16. formance, the facts which constitute the breach "The facts above disclosed show that plainmust be alleged. *

13 C. J. Contracts, tiffs have sold the property in question to a pp. 738, 739.

party able and willing to buy under the terms "Plaintiff claimed damages from the defend- and conditions fixed, and that they have earned ant for an alleged violation of the contract on their 5 per cent. on $68,000, the ‘actual selling which it declared on the specific ground set out. price,' or $3,400. The reason that the sale The action was not one for an account. De- has not been consummated before suit was filed fendant unsuccessfully objected to the introduc- is due to no fault on the part of plaintiffs or tion of testimony on any other issue than that their buyer. The fault is due entirely to deraised by the petition. The ruling of the court fendants not complying with their part of the on that point was erroneous, and all evidence agreement. Plaintiffs are therefore entitled to outside of that issue is disregarded.” Canal their commission. Co. v. Milling Co., 119 La. 447, 44 South. 260. “As a general rule, where a broker finds a

customer able and willing to enter into a As is well said in brief of counsel for plain- transaction on the terms proposed by the printiff :

cipal, he cannot, unless there is a special con"Besides the above fatal objection to the

tract to the contrary, be deprived of his right first defense made, the defense has not been to his commission by reason of the transaction made out: Plaintiffs, through its manager,

failing on account of some fault of the prinCharles S. Gerth, had four months, from Feb. cipal, such as by the principal refusing to comruary 21, 1919, to sell certain property for a

plete the transaction, as where he refused to 5 per cent. commission on the actual selling 623, 624; Land Co. v. Brown, 118 La. 944, 43

complete the sale.

9 C. J. Brokers, price.' Transcript, p. 15. On May 7, 1919,

South. 628. within 242 months from date of contract, plaintiffs, through their said agent, obtained a par; foreign corporation, to effect a sale of an ice

“A party having undertaken, on behalf of a ty willing, able, and ready to purchase said

machine and accompanying paraphernalia to property on the terms of defendants, and sent the offer to defendants. Transcript, pp. 16–24, ed and fixed commission on the amount of the

persons domiciled in this state, for a designat48, 88. “Although $12,500 was to be deposited only over to the purchaser and settled for at a

sale effected, payable when the plant is turned when the offer was accepted (Transcript, P. given date, is entitled to payment of such com15), Mr. Martin, the party whom plaintiffs, missions at that date, notwithstanding litigation through their agent, secured as a purchaser for arises between the contracting parties with refthis property, deposited that amount in the

erence to the vendor's fulfillment of its con. Citizens' Bank & Trust Company of Louisiana, tract, which operates a delay in the settlement the place designated by him in his offer, on May 29, 1919; that defendants were notified Ann. 389, 16 South. 866.

between them.'' Gravely v. Ice Co., 47 La. of said deposit (transcript, pp. 72, 76), and that it is there to-day (transcript, pp. 50, 51, 72, 75, 78).

For the reasons assigned the judgment of "The agreement of purchase further pro

the lower court is annulled, avoided, and revided that $13,000 cash was to be paid when versed as to the Gulf Coast Orchard & Prodtitle was accepted, deed executed and delivered ucts Company and the suit is dismissed as to the bank. Transcript, p. 16. It was also to this corporation, and affirmed as to Thomagreed that after the delivery of said warranty as W. Kracke individually, the costs of apdeed Mr. Martin would, in turn, deliver a deed peal to be paid by Thomas W. Kracke. of trust on said property to secure the balance due on the purchase price. Transcript, p. 18.

Rehearing denied by Division B, composed The notes and trust deed were prepared, but of DAWKINS, LAND, and LECHE, JJ,

*

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(100 So.) (156 La.)

Suit by Mrs. Lula Miller against W. L. (No. 26284.)

Miller. Judgment for plaintiff, and defend-
ant appeals.

Affirmed.
MILLER V, MILLER.

B. H. Lichtenstein and J. E. Harrington,

both of Shreveport, for appellant. (Supreme Court of Louisiana. Feb. 25, 1924. Rebearing Denied by Division A

Cook & Cook, of Shreveport, for appellee. April 21, 1924.)

By Division C, composed of OVERTON,

ST. PAUL, and THOMPSON, JJ. (Syllabus by Editorial Staff.) 1. Divorce w 160-Decree for plaintiff in her

THOMPSON, J. This is a case which, we absence and without her consent, error.

are quite sure, is without precedent in the Where wife sought divorce for husband's jurisprudence of this state. The wife is suadultery, but instructed counsel to withdraw ing to annul a judgment of divorce rendered suit before issue joined, but counsel withdrew in her favor on the ground of adultery comfrom the case and defendant thereafter ad- mitted by her husband, and the husband, mitted the charges, but prayed that plaintiff's while confessing his guilt, seeks to maintain demand be rejected, the full measure of his the validity of the judgment. relief on plaintiff's failure to appear was judg The nullity propounded is that the judge ment of nonsuit, under Code Prac. art. 536, and ment was rendered in the absence of the it was improper to render judgment of divorce plaintiff and without her knowledge and for her in her absence and without her knowl- consent and when she was not represented edge and consent.

by counsel, and that the action of her hus2. Divorce Eww161-Counsel in divorce suit held band in obtaining the said decree amounted bound to know that wife was unrepresented, to ill practice and a fraud upon her rights. where her counsel had withdrawn in open There was judgment in plaintiff's favor court.

annulling the judgment, and the defendant Where plaintiff's counsel in a divorce suit appeals. withdrew from the case in open court, and In September, 1922, the plaintiff filed à suit such withdrawal was noted on the minutes six for divorce charging her husband with havdays before defendant's counsel asked judgment ing committed adultery with a party named in plaintiff's favor against his own client, such counsel was bound to know of the absence of in the petition, but before issue was joined plaintiff, and of any counsel representing her, she instructed her counsel to withdraw the and judgment in plaintiff's favor would be an- suit. Her counsel did not comply with her renulled, especially where defendant knew such quest, but on November 13, 1922, addressed facts.

a letter jointly to the husband and wife ad

vising them, quoting from the letter, that, 3. Divorce Om 167-Suit to annul divorce judgment may be taken without appeal or after

"On account of the fact that we have acted time for appeal' has expired,

as advisers for both of you in the suit of Mrs.

Miller v. W. L. Mille Where judgment in favor of plaintiff wife

we do not feel in a divorce suit was rendered without her that we can conscientiously have anything furknowledge or consent after she had directed ther to do with the case.” withdrawal of her suit, an action of pullity

It was also stated in the letter that Mrs. could be brought under Code Prac. art. 604, Miller had advised the said attorneys to witheren if no appeal had been taken or if the time draw all papers signed by her. This letter to appeal under article 573 had expired.

was received by the defendant on the day that 4. Divorce Om 167-Plaintiff may prosecute or it was written. Just two days later, the atdiscontinue divorce suit at will.

torneys of Mrs. Miller in open court formally Plaintiff in divorce has absolute control of withdrew from the case, and the withdrawal her case and may either prosecute or discon was noted on the minutes of the court. On tinue it at will, and was not guilty of laches the same day the defendant employed counprecluding relief against judgment rendered in sel to represent him, and through said counher favor after she had directed withdrawal,

sel filed an answer specifically admitting because she discharged her counsel, and did not each of the five paragraphs of the petition employ other counsel or discontinue the suit, and concluding with a prayer that the plainor take an appeal within the time prescribed.

tiff's demand be rejected. On the sixth day 5. Judgment em443(1)-Courts have discre- after the answer was filed and without any tionary power to determine what fraud or ill prior fixing of the case, in so far as the practice annuls judgment.

minutes and judgment show, the case was Under Code Prac. art. 607, courts have dis- submitted by the defendant's counsel on the cretionary power to determine what kinds of petition and answer, in the absence of the frauds or ill practices strike a judgment with plaintiff and without her knowledge and

consent, and in the absence of any counsel

to represent her. Judgment was rendered Appeal from First Judicial District Court, on the following day granting the divorce Parish of Caddo; J. H. Stephens, Judge. in plaintiff's favor.

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

pullity.

The plaintiff was not informed of the fact In concealing these facts and in withholduntil more than 30 days thereafter, when ing this information from his counsel, the she employed counsel and filed the present defendant was not only guilty of a fraud on action in nullity. Article 536, Code of Prac- the legal rights of his wife, but of supertice, provides :

inducing his counsel unwittingly to practice If, after the cause has been set down on the a deception on the court-an ill practice in docket for trial, the plaintiff does not appear, legal procedure which cannot receive jueither in person or by attorney, to plead his dicial approval. cause, on the day fixed for trial, the defendant [3] It is argued that plaintiff's remedy, if may require that judgment of nonsuit be ren- there was error, was by an appeal, but the dered against such plaintiff, with costs." / Code of Practice, art. 604, authorizes an ac

[1] As we have stated, there was no issue tion of nullity even if no appeal has been raised by the answer of the defendant by taken, or if the delay for taking the same way of reconvention, and while the answer

has expired. The delay for a suspensive apadmitted the adultery charge, the prayer real from a judgment of divorce is 30 days was that the plaintiff's demand be rejected. from the signing of the judgment, and there In these circumstances it is clear that the is no devolutive appeal allowed. C. P. art. full measure of defendant's relief was a

573. This delay had expired when the plainjudgment of nonsuit. C. P. art. 536; Mc tiff first received notice that a judgment Donogh v. Dutillet, 3 La. Ann. 660; Phillips bad been rendered in her favor. Hence her V. Cassidy, 36 La. Ann. 288; Saunders v. only remedy was by an action in nullity. Mangham, 42 La. Ann. 770, 7 South. 715;

[4] It is further contended that the plainCity of New Orleans v. Le Bourgeois, 50 La. tiff was guilty of laches in discharging her Ann. 591, 23 South. 542.

counsel and not employing another, and for The plaintiff, had she so desired, might failing to take an appeal within the time have obtained judgment against the defend- prescribed by. law, and without dismissing ant on the face of the pleadings and on the her suit, if she intended to discontinue same. admissions of the defendant in his answer, The contention is untenable and is without on filing a rule on the defendant to that ef- support in law or reason. The plaintiff had fect. Act 300 of 1914; Tortorich v. Maestri, the absolute control over her case and the 146 La. 124, 83 South. 431; Dowie v. Becker, unquestioned legal right either to 'prosecute 149 La. 160, 88 South. 777.

or to discontinue it at her will and pleasure. But there is no rule known to judicial pro- She was not bound to take an appeal even cedure which would authorize the defendant if she had been informed of the judgment in to obtain a judgment on the face of the pa- time to have done so within the legal delay. pers, in plaintiff's favor, in her absence and Moreover, the nullity of the judgment comwithout her knowledge and consent.

plained of was not one of form appearing [2] The counsel for the defendant in this upon the face of the papers, but one that instance · was without authority to act for appertains to the merits of the case, and the plaintiff and, indeed he does not pre would not have been disclosed by the rectend to have had any such authority. It is ord on an appeal. true the defendant's counset disclaims hav

The action of nullity “as provided by Code ing had any prior knowledge of the intend- Prac. art. 607, is independent of the remedy ed abandonment of the suit by the plaintiff, by appeal,” and while it is not a substitute or that her counsel had withdrawn from the for an appeal, “its purpose is to furnish re case; but the fact remains that the with lief against fraud which has operated in the drawal of counsel had been made in open obtention of a judgment, which makes no court and noted on the minutes of the court appearance in the recoru, and for which an six days before counsel asked for judgment appeal would afford no remedy." State er in plaintiff's favor against his own client, rel. Pelletier v. Sommerville, 112 La. 1091, and he was bound to know of the absence of

36 South, 864. the plaintiff and of any counsel to represent

(5) Article 607, Code of Practice, provides her when he called the case up. However,

thatthe utmost good faith and honesty on the “A definitive judgment may be annulled in all part of counsel cannot save the defendant cases where it appears that it has been obfrom the penalty of having the judgment tained through fraud or other ill practices on which he procured against himself declared the part of the party in whose favor it was rento be an absolute nullity.

dered." The defendant himself was well aware In the instant case the fraud and ill practhat the plaintiff had instructed her counsel tices, it is true, were not on the part of the to discontinue the suit and of her intention wife in whose favor ostensibly the judgment not to prosecute it further, and he knew, of divorce was rendered, but on the part of when he employed counsel to file an answer the husband by whose act and procurement and to obtain judgment in plaintiff's favor and for whose benefit alone the said judgon his admission and confession, that the ment was obtained. The instances enumerplaintiff's attorneys had withdrawn from ated in the article quoted supra are not exthe case.

clusive and restrictive, but are merely illus

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(100 So.) trative. The courts have discretionary power | mobiles. The accident occurred at a street to determine what kinds of frauds or ill intersection in the city of New Orleans. practices strike a judgment with nullity. Plaintiff sued for $15,620.44. Defendant reLazarus v. McGuirk, 42 La. Ann. 194, 8 convened for $15,066,50. Plaintiff pleaded South. 253; State v. Sommerville, 112 La. prescription to the reconventional demand. 1100, 36 South. 864; O'Rourke v. Lawrence, Pending the issue defendant died, and his 132 La. 710, 61 South, 764.

heirs were made parties. The trial was be“Relief will be afforded against judgments, fore a jury. The judge charged the preirrespective of any issue of inattention or neg- scription pleaded to the reconventional lect, when circumstances under which they were demand was well founded. The verdict rerendered show deprivation of legal rights, and jected both demands, and judgment was enwhen enforcement of the judgment would be

tered accordingly. Plaintiff moved for a unconscientious and inequitable." City of New

He then apOrleans v. Le Bourgeois, 50. La. Ann. 593, 23 new trial, which was refused. South. 542.

pealed; defendants did not.

Plaintiff's large claim for damages is unThe lower judge had no hesitancy in an-founded. His injuries were not of a serious nulling the judgment when the circumstanc- character nor of long duration. His priná es under which it

obtained

were cipal injury was a sprained back, which conbrought to his attention on the trial of this fined him to his home for about a week. The case, and he was eminently correct. The

other items of alleged damage are too rejudgment appealed from is affirmed, at the mote and speculative to merit consideration. cost of defendant and appellant.

Plaintiff was driving in a northerly direcRehearing denied by Division A, composed tion on South Pierce street. Defendant was of O'NIELL, O. J., and ROGERS and BRU-driving in a westerly direction on Palmyra NOT, JJ.

street. The cars met at the intersection of said streets.

Each party charges the accident to the

negligence of the other. The jury found that (156 La.)

the fault lay with plaintiíf. The district No. 24561.

judge, by refusing a new trial, approved the THOMASON v. GARIC.

verdict. Our examination of the record has

not disclosed any reason for disturbing their (Supreme Court of Louisiana. April 21, 1924.)

findings. (Syllabus by Editorial Staff.)

Plaintiff's principal witness was plaintiff

himself. None of his other witnesses saw Municipal corporations 706 (5)-Finding of negligent operation of automobile sustained.

the accident or gave testimony of any value. In action for damages resulting from colli

There were nine people in defendant's car: sion between plaintiff's and defendant's auto. Defendant, his wife, four daughters, a sonmobiles at street intersection, each claiming in-law, a niece, and a grandchild. This last, that the other was at fault, finding for defend- an infant, was held in its mother's lap. Deant held sustained by evidence.

fendant's wife, four daughters, and son-in

law testified. Defendant was dead at the Appeal from Civil District Court, Parish time of the trial. The son-in-law, who was of Orleans, Hugh C. Cage, Judge.

driving the car, was the main defense witAction by Dr. Louis M. Thomason against ness. John Garic. Judgment for defendant, and

Defendant was well along in years, was in plaintiff appealed. Affirmed.

ill health, and was out for an airing with his S. A. Montgomery and Arthur H. Browne, adduced on defendant's behalf that his au

family, facts corroborative of the testimony both of New Orleans (J. D. Dresner, of New tomobile was being driven carefully and at a Orleans, of counsel), for appellant. Edward Rightor, of New Orleans, for ap- plaintiff

, who is a physician, was hurrying

reasonable rate of speed. On the other hand, pellee.

to pay a professional call; he failed to slow By Division A, composed of O'NIELL, C. up on nearing the corner, and when he saw J., and ROGERS and BRUNOT, JJ.

defendant's car approaching he increased

his speed in order to pass in front of said ROGERS, J. This is a damage suit re- car, thus bringing about the collision. sulting from a collision between two auto- Judgment affirmed.

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

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