(100 So.) and Albert L. Grace, in the full sum of $5,000, with legal interest on said sum from January 17, 1920, until paid, and all costs of suit. Rehearing refused by Division C, composed of Justices OVERTON, ST. PAUL, and THOMPSON.. No. 24505. CO. et al. (156 La.) refusing to reduce the commission, and has declined a certified check for the amount, both before and since the institution of this suit. The plaintiffs have not attempted to take any advantage whatever of the defendant. They have offered to accept his note for $5.000, payable in one year, which the defendant has declined to give. This is not a case where an attempt has been made to prove a contract above $500 by only one credible witness. Defendant judicially ad mits in his answer that there was such a contract, but contends that it had ended. Defendant admits that plaintiffs found the purchaser for the property, and introduced OLIVER v. NEW ORLEANS RY. & LIGHT him to defendant; that the property was sold for the purchase price originally agreed upon; but attempts to reduce the commission from $5,000 to $2,500, after the deal had been closed, under the pretext that the original contract had expired, and that a new and independent agreement had been entered into between the parties. Defendant having admitted the contract to pay plaintiff company a commission of $5,000 on the sale of his plantation for $135,000, the burden of proof is on defendant to establish the fact that this agreement expired by limitation 2 weeks afterwards. The expiration of the contract is denied by plaintiff company, the alleged new agreement to pay a commission of $2,500 is also denied, and there is no corroboration of the testimony of defendant.' (Supreme Court of Louisiana. April 21, 1924.) (Syllabus by Editorial Staff.) Appeal and error 1011(1)-Trial court's findings of fact on conflicting evidence entitled to great weight. Finding of fact, on conflicting evidence, by the trial court in action for injuries against street railway company, is entitled to great weight. Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge. Action by Edna Oliver, widow of Wm. Moton, against the New Orleans Railway & Light Company and another. Judgment for defendants, and plaintiff appeals. Affirmed. Joseph Rosenberg, of New Orleans, for appellant. Benj. W. Kernan, of New Orleans, for appellees. By Division A composed of O'NIELL, O. J., and ROGERS and BRUNOT, JJ. This is not a case where a real estate agent has closed a deal, contrary to the terms given to him by his principal, and is seeking to bind his principal and collect a commission; but it is a case where the agent has produced a purchaser who has bought the property of his principal for the full purchase price, and the principal himself has reduced, not the purchase price, in order to BRUNOT, J. This is a suit against the consummate the sale, but merely the amount New Orleans Railway & Light Company and of the cash to be paid on the purchase price. the National Surety Company of New York, [2] To deny to plaintiffs their full commis- in solido, for the recovery of $3,000 for persion under such circumstances would be to sonal injuries, $100 for medical attention, allow defendant to enrich himself at their and $25 for drugs and medicines. expense, in violation of all equitable consums are claimed by plaintiff as damages siderations, and in the very face of an ad-sustained by her as the result of the allegmitted contract, the termination of which prior to the sale defendant has pleaded, but has failed to establish by satisfactory and sufficient proof. The judgment of the lower court restrict-plaintiff has appealed. ing the commission of plaintiff company to $2,500 is erroneous under our appreciation of the facts of the case. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, the Grace Realty Company, a commercial and real estate partnership, and in favor of its individual members, Charles E. Grace These ed negligence of the first-named defendant while she was in the act of alighting from one of its street cars. The lower court dismissed the suit, and The record presents nothing but questions of fact. Plaintiff relies upon the testimony of herself, her daughter, and two disinterested colored women who were seated on a doorstep about 50 feet from the scene of the accident, engaged in conversation at the time it happened. Defendant relies upon the testimony of the conductor and motorman of the car, and upon two disinterested witnesses, one of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes whom was seated near the step of the car | stepped in front of truck the chauffeur could not and the other was standing in the street at avoid accident. the car step awaiting an opportunity to board the car when the accident occurred. The testimony is conflicting, and it is impossible to reconcile it; but this court finds that the evidence given by the two disinterested colored women called by plaintiff does not satisfactorily corroborate the statements of the plaintiff and her daughter upon the main allegations of the petition upon which her right to recover rests, while the testimony of the two disinterested witnesses called by the defendant does corroborate the evidence given by the conductor and the motorman. The theory of the plaintiff is that while she was leaving the car, with one foot on the step and the other in the air, descending towards the ground, the car suddenly started and hurled her with great force upon the pavement. The defense is that the car did not move; that plaintiff was wearing highheeled shoes; that when she placed her right foot on the car step the heel of that shoe broke off, letting the foot slip past the step to the ground and throwing her back and the back of her head against the car step. All of the witnesses testify that the shoe heel broke off, and all except the plaintiff herself say that she went down on the pavement with one foot under her and her back and the back of her head against the car step. In this suit the trial judge found that plaintiff had failed to establish her claim, and, from a careful reading of the evidence, we do not see how he could have reached a different conclusion. Moreover, the trial judge heard and saw the witnesses and had an opportunity to accurately estimate which were the most worthy of belief, and we reiterate, what we have often heretofore said, that his finding of fact is entitled to great weight. For these reasons the judgment of the lower court is correct, and it is therefore affirmed, at appellant's cost. (156 La.) No. 24522. ABELS v. BROWN. Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge. Action by Jacob R. Abels against Benjamin C. Brown, doing business as the New Orleans Ice Cream Company. Judgment for defendant, and plaintiff appeals. Affirmed. Reid, of Hammond, for appellant. Lemle, Moreno & Lemle, of New Orleans, for appellee. By Division A, composed of O'NIELL, C. J., and ROGERS and BRUNOT, JJ. He was O'NIELL, C. J. This appeal is from a judgment rejecting the plaintiff's demand for damages for personal injuries. knocked down by an automobile truck owned by the defendant and operated by the latter's employé. The accident happened in New Orleans, at the crossing on Gravier street, at the east. side of Rampart street. Plaintiff, with a companion, had alighted from a street car that had come down Rampart street-northward. The truck was going eastward-toward the river. Whether it came down Rampart street and turned into Gravier street, or came straight across Gravier street from Saratoga street (which is the next street westward from Rampart street), is the main question in dispute. Plaintiff contends that the truck came down Rampart street and turned into Gravier street suddenly and without warning. The defendant says that the truck came straight across Rampart street, coming directly from a repair shop on Saratoga street, near Gravier. The evidence leaves no doubt in our mind that the truck did not come down Rampart street, but came from the repair shop on Saratoga street to Gravier street, and thence directly to and across Rampart street. The testimony of the chauffeur in that respect was corroborated by that of the proprietor of the repair shop. The only evidence offered by plaintiff to prove that the truck came down Rampart street was his statement and that of another witness that immediately after the accident, the chauffeur said that he had driven down Rampart street. The chauffeur denied that he had made the statement. It is conceded that the chauffeur was then very (Supreme Court of Louisiana. April 21, 1924.) excited, and it is plausible that he did, ipad (Syllabus by Editorial Staff.) Municipal corporations 705 (10)-Pedestrian crossing street in front of truck held negligent. vertently, say that he had driven down Rampart street, meaning that he had driven across Rampart street. In his report to the police department, made within an hourand perhaps only a few minutes after the accident, the chauffeur said that he had driv en from Saratoga street into Gravier street, and thence directly to and across Rampart street. No one testified as a matter of fact Where plaintiff started to cross street after alighting from street car without looking to right, and was struck by defendant's truck, which he could have seen had he looked, plainwas guilty of negligence, for when he tiff (100 So.) The negligence that caused this accident was the plaintiff's neglect to look to the right when he started to cross Gravier street. If he had looked to the right then, he would surely have seen the truck. When he stepped in front of the truck it was so close that the chauffeur could not avoid the accident. The judgment is affirmed, at appellant's cost. that the truck came down Rampart street. | legation was not proven to the satisfaction On the contrary, the testimony of the plain- of the judge who tried the case. Without tiff himself, and of the friend who was walk- going into a discussion of the testimony on ing with him at the time of the accident, the subject, which is very brief, we concur would almost convince us that the truck did in his honor's conclusion. not come down Rampart street. When the two men alighted from the street car on the downtown side of the crossing at Gravier street, they walked eastward to the corner, then turned to the right to cross Gravier street. Plaintiff's companion was walking only a few steps behind him. The truck would have been almost directly in front of them if it had been coming down Rampart street, or was turning into Gravier street, when they turned to the right to cross Gravier street. The fact is that the truck was approaching from behind them when they stepped from the street car, and was to the right of them when they turned to the right to cross Gravier street. Neither of them saw the truck until the moment when it struck plaintiff. He testified that he looked up and down Gravier street before starting to cross the street, but he admitted that the truck might then have been behind the street car. He said: "That car struck me without my knowledge of its being present; how it did I don't know." The man who was with plaintiff at the time of the accident acknowledged that he did not look up or down Gravier street before attempting to cross the street. He said that when he saw the truck about to strike plaintiff he tried to grab him, but it was too late. The charges of negligence were that the chauffeur was driving too fast, and that he failed to blow his horn. The evidence shows that the truck was not going fast. The chauffeur had stopped on the west side of Rampart street to let the street car pass the crossing. He waited until the street car had stopped and started. Then he proceeded across Rampart street. He had not had time to gain much speed when the accident happened. He stopped the truck within 10 feet from the place where he struck plaintiff. He turned to the right to avoid the collision, and ran his right front wheel to the sidewalk on Gravier street. There is some doubt whether he blew his horn; but that is not important, because it is not at all likely that a blowing of the horn would have avoided the accident. The chauffeur had the right to assume that the men would see the truck and would not walk in front of it. And he did all that we should expect of a skilled and prudent chauffeur to avoid the accident when the danger appeared. It was charged in the petition that the chauffeur had an ailment of his eyes, and that the defendant was therefore at fault for allowing him to drive the truck. The al No. 25307. (156 La.) LIQUIDATORS OF PRUDENTIAL SAV. (Supreme Court of Louisiana. Oct. 29, 1923. (Syllabus by Editorial Staff.) 1. Descent and distribution 63-Succession; son of first marriage does not hold property bequeathed by mother to father who remarries by inheritance, but because of statute. Where mother bequeaths property to father who marries again, son of first marriage may claim property, not by inheritance from mother, but because of father's second marriage under Civ. Code, art. 1753, forfeiting father's ownership on remarriage. 2. Statutes 241 (1)-Penal statutes strictly construed. 3. Penal statutes must be strictly construed. 4. Descent and distribution 84 Succession; Where husband, prior to remarriage, conveyed property bequeathed to him by wife, dor's lien, such grantee held legal title, and subgrantee conveying it back and retaining vensequent dation en paiement to him, after the remarriage, was merely a voluntary retrocession, so that son of urst marriage had no right to property under Civ. Code, art. 1753, forfeiting legal title to property received from wife on husband's remarriage, in view of articles 2041, 2045, 2046, 2130, 2561. Appeal from Civil District Court, Parish of Orleans; Columbus Reid, Judge. Action by Liquidators of the Prudential Savings & Homestead Society against August Rudolph Langermann. Judgment for defendant, and plaintiff appeals. Reversed and rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes U. Marinoni, Jr., and F. Rivers Richard-ther, by the deceased mother of claimant, son, both of New Orleans, for appellant. M. 'C. Scharff and Sanders, Baldwin, Viosca & Haspel, all of New Orleans, for appellee. who denied that the act of sale from him to Rudolph Langermann of date August 22, 1907, included among "all the hereditary rights, active and passive," described there By Division B, composed of Justices DAW-in, the particular right conferred upon him KINS, LAND, and LECHE. LAND, J. This is an action in jactitation converted into a petitory action by defendant admitting the slander of the title asserted by plaintiffs and setting up adverse claim to a two-thirds interest in the property in dispute, which is described as lot No. 4 in the Fourth district of the city of New Orleans in the square bounded by Dryades, South Rampart, First, and Second streets. Plaintiffs, as defendants in the petitory action, called their vendor, Rudolph Langermann, in warranty, and Langermann called in warranty his vendor, August Rudolph Langermann, defendant herein and plaintiff in the petitory action, to defend the title from August Rudolph Langermann to him to a third interest in said property, as well as to "all and singular the hereditary rights, active and passive, without any exception or reservation, which belong to the vendor in and to the succession of his mother, Georgi- | ana Rachel Lozes, wife of Rudolph Langermann, who died testate on the 4th inst., and of whom this vendor is the sole and forced heir for one-third and the purchaser the universal legatee of two-thirds of her succession." Mrs. Georgiana Rachel Lozes, the first wife of Rudolph Langermann, died in the city of New Orleans August 4, 1907. By authentic act of date August 22, 1907, August Rudolph Langermann conveyed to his father, Rudolph Langermann, a third interest in said property and the rights above described in and to the succession of his mother. This sale was made with full warranty of title and for a cash consideration of $1,745.38. On February 21, 1910, Rudolph Langermann sold the same property to the Commonwealth Building & Loan Association, afterwards changed in name to the Prudential Savings & Homestead Society by the amendment of its charter, with full warranty of title and for the cash price of $1,800. This act of sale is notarial in form and was duly registered in the conveyance office of the city of New Orleans February 24, 1910. to claim the two-thirds interest in the ownership of the property in dispute, under article 1753 of the Civil Code, now repealed by Act 238 of 1918. On the other hand, plaintiffs, as the vendee of Rudolph Langermann, assert that said right was embraced within the sale of date August 22, 1907, under the description of "all hereditary passive rights" in and to the succession of his mother. To this reconventional demand of defendant for a two-thirds interest in said property and for the rents and revenues of same, the plaintiffs on November 4, 1921, filed pleas of estoppel by deed and by warranty; having previously presented on November 3, 1921, a plea of prescription of 10 years, averring that plaintiffs and their authors in title have been in the physical possession of said. property, which is improved, under just title, translative of property, for more than 10 years, and that the rights of said August Langermann, if any, are barred by said prescription. This plea of prescription, as well as the pleas of estoppel by deed and by warranty, were overruled by the lower court. There was judgment as in case of nonsuit in the call in warranty of plaintiffs against Rudolph Langermann, with full reservation to them to institute proper proceedings to recover the amount due. The call in warranty of Rudolph Langermann against August Rudolph Langermann was rejected, and it was held that the property in question must pass to defendant free of any mortgages or alienations by Rudolph Langermann. We are of the opinion that the plea of prescription is good and should have been sustained for the following reasons: The plea of prescription in this case is based upon the authentic act of sale, duly recorded February 24, 1910, from Rudolph Langermann to the Commonwealth Building & Loan Association of the property in controversy. At the date of this sale Rudolph Langermann was a widower, and it is not disputed by August Rudolph Langermann that his father then owned a two-thirds interest in this property and had then acquired the remaining one-third interest in same by virtue of the sale of date August 22, 1907. His claim to the ownership of a two-thirds interest in this property, set up as a reconventional demand in his answer to the call in warranty, rests solely upon the contention Rudolph Langermann was in the actual that his father, Rudolph Langermann, mar-possession of this property as owner from ried a second time in January, 1915, and August 22, 1907, down to the date of the sale that, by virtue of said second marriage, he, to plaintiffs, February 21, 1910. The public as the child of the preceding marriage, be- records disclosed a title to him with no patcame owner of a two-thirds interest in said ent defect upon its face. He had the excluproperty, because this interest had been be- sive ownership of and the exclusive dominqueathed to Rudolph Langermann, his fa-ion over the whole of this property, and the (100 So.) exclusive right to use and enjoy the same, I shall have all the rights, privileges and securifor his own benefit. ties which are now accorded by the law to the vendor of the property." (Italics ours.) Rudolph Langermann had a legal and transferrable title of ownership of record, and the act of sale of date February 21, 1910, from him to plaintiffs, constitutes unquestionably a just title, as said act, authentic in form, evidences an absolute and uncon ditional sale to plaintiffs with full warranty of title, and for a valuable consideration. Plaintiffs, therefore, acquired this property in good faith and by a just title February 21, 1910. R. C. C. arts. 3478, 3479, 3481, 3483, 3484, 3485. After the sale of this property by Rudolph Langermann to plaintiffs February 21, 1910, they erected a brick store upon it at a cost of $4,850, and on December 30, 1910, resold said property to Rudolph Langermann for a consideration of $6,500; plaintiffs retaining a vendor's lien and special mortgage to secure the payment of the promissory note of Rudolph Langermann, the purchaser, for that amount. In addition to the usual stipulations for payments in sales of this character, the pledge of Langermann's stock as additional security, nonalienation clause, provision for the issuance of executory process, etc., the act evidences a transfer of title to Rudolph Langermann of this lot and the improvements thereon, declaring: "The purchaser to have and to hold the said property for himself, his heirs and assigns forever." The warranty clause, as is usual in such cases, is only against the demands of all persons claiming the property through the association. The lower court held that the sale of this property by Langermann to plaintiffs and the resale by them to him did not constitute actual sales, but that the two transactions amounted to only a mortgage. In the opinion of the lower court, the sale by Rudolph Langermann to plaintiffs of date February 21, 1910, did not constitute a sufficient basis for the prescription of 10 years, as said sale was not deemed sufficient to transfer the property to plaintiffs. In this view of the trial judge we cannot concur, as the law on the subject is expressly to the contrary. It is provided in section 9 of Act 120 of 1902, a building and loan and homestead act: "That such associations are authorized and empowered to contract and agree with any person to acquire on purchase from such person any property, and afterward to sell or dispose of the same property to a member even though said agreement be made at one and the same time, and such contract and agreement shall not be considered or dealt with as a loan, but a purchase or acquisition by the associa tion, and then as a sale by the association to such member, and such association, to secure payment of the amount due by such member, 1888 and in Act 280 of 1916. Similar provisions appear in Act 115 of In the case of Holloman v. Alexandria & Pineville Building & Loan Association, 137 La. 970, 69 South. 764, we said: "The defendant sued out executory process on a note for $2,700 signed by Mrs. Mary E. Holloman, with the authorization of her husband, and secured by special mortgage and vendor's privilege on a certain improved lot situated in the city of Alexandria. The transaction between the parties was in the form of a sale by Mrs. Holloman of the lot to the defendant association, and a resale of the same property by the association to Mrs. Holloman for the price of $3,000, represented, in part, by her note for $2,700 bearing interest at rate of 6 per cent. per annum, payable monthly, the whole in accordance with the provisions of the charter and by-laws of the defendant corpora- . tion." The plaintiff Mrs. Holloman enjoined the execution of the writ of seizure and sale in that case on the ground that the application to the defendant association was for a loan to pay the debts of her husband, as said association well knew, and that the two acts of sale were merely simulated sales, or, at least, a disguised mortgage, made to subject the property to the payment of her husband's debts. The court said, in disposing of this contention: "The plaintiff became a shareholder of the defendant corporation, and the transaction between the parties was not a mortgage, but a purchase and resale, under the provisions of Act No. 120 of 1902, relative to building and loan and homestead associations." The act of sale from Langermann to plaintiffs of date February 21, 1910, was therefore a purchase by them and a sufficient basis for the plea of prescription of 10 years. Plaintiffs, under their deed of date February 21, 1910, took possession and erected a brick store on this property at a cost of $4,850, and resold the same with the improvements to Rudolph Langermann on December 30, 1910. Article 3482 of the Civil Code provides that "It is sufficient if the 'possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription." C. C. art. 503. Langermann remained in the actual possession of this property from December 30, 1910, as owner of the whole property, until June or July, after his second marriage in January, 1915, when he moved away, but continued to rent it out at $55 per month, until he resold the property to plaintiffs on |