69 So. 195 | La. | 1915
Lead Opinion
The Brooklyn Cooperage Company sued the defendant company for the sum of $1,785 for the price of 1,400 molasses barrels furnished for the purpose of putting on the market its crops 'of sugar and molasses for the season of 1913.
The Ozark Cooperage & Lumber Company followed with- a similar suit and seizure for a balance of $1,423 for certain cooperage stock and material furnished to the defendant company, claiming a privilege as furnish-er of supplies on the crops of 1913, and also a vendor’s privilege on whatever of said stock and material remained in the possession of the defendant. Under the writ of sequestration the sheriff seized, in addition to what had already been seized under the first writ, 485 empty sugar barrels.
Numerous interventions and oppositions were filed claiming privileges on the sugar and molasses under seizure.
J. Aron & Co. appeared, and under a claim of ownership bonded out 530 barrels of sugar under seizure, and a few days later intervened in the suit.
This intervener alleged a purchase of 600 barrels of sugar from the defendant company on December 16, 1913, “f. o. b. plantation,” payment of the price, and a subsequent sale and removal of 75 barrels of the sugar.
Burkenroad-Goldsmith Company also intervened, claiming ownership of 200 barrels of the sugar by purchases from J. Aron & Co.
Holly Heyn intervened, first claiming a privilege on the crop as “sugar chemist and head overseer” in defendant’s factory, and later as overseer of the plantation.
H. Grabenheimer intervened, and sued for a balance of $2,245.86, with privilege on the crops of 1913, for necessary plantation supplies furnished to the defendant company. Levy, Loeb & Co. also intervened, ..suing for $1,011.43, and claiming a like privilege on the crops. Z. T. Erie, Jr., and Wiley Hampton severally intervened, claiming privileges as the vendor of sugar cane, under Act No. 27 of 1894, on the sugar and molasses seized by the plaintiffs.
Mrs. B. Powers intervened, claiming a privilege on the sugar and molasses under seizure as the furnisher of meals and supxfiies for the use of laborers on the defendant’s plantation.
A. A. Brown, as sheriff, agent, etc., intervened and claimed $177 for cane delivered to the defendant, with the statutory privilege on the sugar and molasses of the crop of 1913. The foregoing include all the interventions discussed in the brief of the two plaintiffs and appellants. Other interventions were filed, and some of them were allowed, but plaintiff’s brief refers to none of them, except that of W. J. Blanchard, which was dismissed.
The judgment below rejected the claims of J. Aron & Co., Burkenroad-Goldsmith Company, Holly Heyn, and W. J. Blanchard, and allowed the respective claims of the two plaintiffs, and, in whole or part, the claims of H. Grabenheimer, Levy, Loeb & Co., A. A. Brown, sheriff and agent, Wiley Hampton, Mrs. B. Powers, and Z. T. Earle, Jr. Plaintiffs’ and appellants’ objections to the judgment below are confined to the six claims last mentioned.
The same 200 barrels were seized in the sugar house on the' Cora plantation.
The judge below held that the evidence did not show an actual delivery of the 525 barrels of sugar purchased by J. Aron & Co. from the defendant company. There was no change in the physical possession of the sugar, and, if there was any delivery, it was merely constructive. A sale of movables without actual delivery does not affect third persons, and the property is liable in the hands of the vendor to seizure and attachment in behalf of his creditors. C. C. 1922, 1923.
To this petition plaintiffs excepted that it was nothing but an amendment to the original petition, and came too late after the judgment sustaining the exception of no cause of action. Plaintiffs’ exception was overruled, and the intervention was put at issue. On the trial of the case plaintiffs objected to all evidence in support of the allegations of the second intervention of Holly Heyn, on the ground that the intervener had made a judicial admission that he was employed by the defendant as a chemist and sugar house overseer, and that the evidence offered under the allegations of the second intervention will go to contradict his judicial admission in his first petition by undertaking to show that he was employed in another capacity. This objection was sustained by the court, and the evidence ruled out. Evidence offered to show the alleged error in the drafting the first petition' of intervention was also ruled out.
Plaintiffs have filed in this court a plea of res judicata, which is necessarily based on the predicate that the causes of action in the two interventions are the same. In the court below the plaintiffs contended that the allegations of the second petition were inconsistent with those of .the first petition, and shifted the issues. As a matter of fact, the intervener in his second petition claimed a privilege on the crops of the year on grounds different from those alleged in his first petition. It follows that the merits of the cause as disclosed in the second petition were not heard and decided in the first action.
In Succession of Herber, 119 La. 1064, 44 South. 888, the court said:
“An insufficient statement of an attorney of the grounds upon which the rights of his client are predicated does not carry with it under the law as a penalty that the actually existing legal rights of the client should be absolutely cut off. At the furthest, it throws the clients out of court, but under the right of renewing the attack under allegations sufficient, if proved, to warrant and justify á judgment.”
This doctrine is in line with the common-law rule:
“That, if the plaintiff fails on demurrer in his first action from an omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right; for the reason that the merits of the cause, as disclosed in the second declaration, were not heard and decided in the first action.”
See Gould v. Evansville, 91 U. S. 534, 23 L. Ed. 416.
The civil law doctrine is more restricted than that of the common law as to res judicata, and does not, as a general rule, include everything that might have been pleaded in the first suit. Woodcock v. Baldwin, 110 La. 270, 34 South. 440.
We therefore are of opinion that the judgment below on the intervention of Holly Heyn should be reversed, and the case remanded for further proceedings on the same according to law.
Defendant, in its sworn answer, admitted the debt claimed by the intervener, and that the merchandise as per account sued on was used on the Cora plantation during the year
We therefore conclude that the judgment below on this opposition should be affirmed.
Levy, Loeb & Co., also intervened, claiming a privilege for necessary plantation supplies. The trial judge rejected items aggregating $470, and recognized the remainder of the account as privileged.
The issues and evidence are practically the same as those involved in the intervention of Grabenheimer, and for the same reasons the judgment below should be affirmed.
The plaintiffs interposed their usual exceptions of vagueness and of no cause of action, which were properly overruled.
We think the judgment below on this intervention is correct.
Wiley Hampton intervened, claiming $409.-45 as the prevailing price of “approximately” 134 tons of sugar cane sold and delivered to the defendant company, with a privilege as provided by Act No. 27 of 1894 on the sugar, syrup, and molasses manufactured by the said company during the season of 1913.
Z. T. Earle, Jr., intervened and filed a similar claim for sugar cane sold and delivered to the defendant company.
Plaintiffs excepted to 'both petitions of intervention on the ground of vagueness. These exceptions were overruled. Plaintiffs objected on the same ground to evidence offered by interveners to prove their demands. These objections were also overruled.
Such exceptions lose their force after trial on the merits, unless some particular prejudice be shown. Whitworth v. Railroad Co., 121 La. 898, 46 South. 912.
No prejudice has been shown in the instant case. The two petitions disclosed with reasonable certainty the nature and object of the demands. The unpaid price is stated with certainty, and the number of tons of cane with such correctness as to exclude any material variance. It was not necessary for the petitions to state the law of the case as set forth in Act No. 27 of 1894, granting a privilege in favor of vendors of sugar cane for the unpaid purchase price thereof in all syrup, sugar, and molasses belonging to the purchaser and manufactured by him during the same, to the amount of the product of the cane so sold, to be fixed by a certain rule of proportion.
The evidence sustains the claims of these two interveners. It is true that one item of 20 tons of cane rests on the testimony of Earle, but the judge below accepted his statement as true, and we see no good reason to discredit this witness, especially as his claim is admitted in the sworn answer of the defendant company. The evidence shows that under Act No. 27 of 1894 the interveners are entitled to be paid the full amount of their
It is therefore ordered that the judgment below rejecting the demand and dismissing the intervention of Holly Heyn be reversed, and that this cause be remanded for trial of said intervention according to law, and it is further ordered that in all other respects the judgment below be affirmed, provided that in the distribution of proceeds of the property a sufficient amount be reserved to pay the alleged privileged claim of Holly Heyn in the event it should be hereafter allowed in whole or in part, and it is finally ordered that plaintiffs and appellants pay the costs of this appeal.
Rehearing
On Application for Rehearing.
It is ordered that our decree herein be amended by condemning the Brooklyn Cooperage Company, the Ozark Cooperage & Lumber Company, the Burkenroad-Goldsmith Company, Limited, and X Aron & Co., appellants, to pay costs of appeal; and it is further ordered that, with this amendment, the decree herein is made final and executory.