
    No. 8559.
    L. B. Cain vs. Edward Pullen. H. & C. Newman, Intervenors.
    A motion in this Court to strike out claim for damages in intervention comes too late after issue is joined.
    A recouveutional demand need Dot be equally liquidated with the one to which, it is opposed.
    Our law does not authorize the appointment of a commissioner by the Court, to whom the books and papers of a commercial house,'one of the litigants, must be delivered for examination.
    Books and papers must be examined in Court, and when the paity whose hooks or papers are required, resides in another parish, he may furnish sworn copies of them, which will be sufficient.
    Where there is no dispute as between intervenor and defendant, relative to intervenor's claim, the latter can reconvene and recover damages against plaintiff, without citing defendant, or joining issue as to him.
    If is competent to establish by parol a subsequent change or modification of a written contract.
    Without express stipulation to the contrary, ‘-advances ” include not only necessary supplies, but also goods furnished a plantation store, open only to the laborers and employes on the place.
    An agreement, for a consideration, on the part of the lessor, that he will not seize the leased place for rent, until the factor is reimbursed for advances, enures to the benefit of the lessee, and will enable him, as well as the factor, to recover damages for the lessor’s violation of said contract.
    APPEAL from the Ninth Judicial District Court, Parish of Concordia. Hough, J.
    
      L. L. Levy, Hoatner & Mason, for Plaintiff and Appellant:
    Where the intervenor has been ordered by the Court to produce his books and correspondence before a commissioner of his domicil for examination by plaintiff, and plaintiff swears be can establish material and specific facts by the books or documents called for, and inter venor fails to obey order, plaintiff is entitled on motion, to have the specific facts sworn to, taken pro coufesso, and it is error to refuse the same. Vol. 30, A. R. 11, W. R. Mills vs. Fellows, p. 825; Art 140, C. P.
    Where the intervenor has cited defendant and prayed judgments but failed to have his intervention put at issue, the appellate court cannot dettnniiio whether he is a creditor or not of defendant, and the intervention must fall. Aleix vs. Derbigny, 22 A. R. 386; Weil vs. Weil, 28 A. R. 241; Jones vs. Lawrence, 4 A. R. 279; Yale vs. Hoops, 12 A. R. 464.
    Where iutervenur’s demand for damages against plaintiff rests upon the reality of his de inand against defendant, which inteiveuor failed to put. at issue, a judgment for damage against plaintiff must also fall and share fate of demand against defendant, leaving, as the only issue to be tiled, the demand of plaintiff against defendant.
    A claim for damages against the plaintiff cannot be coupled with an interventional demand claiming privilege upon property seized; nor can it be granted on an intervention against plaintiff, who does not reside in the paiish where main action is pending. G-ersonvs. Jamar, 30 An , part 2, p, 1297.
    Lessor had the right to a writ of provisional seizure. Failure to pay rent as it becomes due is sufficient cause to authorize the provisional spizure of the tenant’s property. Shift vs. Ezekiel, 23 A. R. 383; Wallace vs. Smith, 8 A.. R. 375; Macarty vs. Lepaullard, 4 R. R. 425; Thayer vs. Waples, 26 A. R. 502
    A receipt evidencing an obligation cannot be enlarged by parol to have a meaning foreign to the matter of the contract, but must be taken in that sense most congruous thereto. G. C. [1947] 1952, et seq.
    
      If there be a doubt arising from the want of necessary explanation, which one of the parties ought to have given, the construction most favorable to the other party should he adopted, whether he be obligor or obligee. 0. 0. Art. 1958, [J9531 et seq.
    Where the lease provides all rent becomes exigible if tenant fails to pay rent punctually as it becomes due, plea of prematurity is not pertinent. In case at bar no such pica was filed. 22 A. B. 511; 32 A. B. 272.
    
      Steele & Garrett} for Defendant and Appellee:
    1. Parol evidence is admissible to show the capacity in which parties to a written con tract acted in the premises. Barriere vs. Peychaud, 14 Am. 272.
    2 When a suit has been prematurely brought, it must be dismissed, reserving to the party his right to bring his action in due time. C. P. 158; Chiisten vs. Buhlman, 24 An. 50 ? Cattlet vs. Heffner et al., 23 An. 577; 20 An. 538; 15 An. 689-707; 13 La. 403 ; 11 La. 420 ; 8 La. 589, and cases there cited.
    3. Where the suit for rent is brought before due, and no ground for seizure is alleged, except that defendant is in default, which is disproved, the provisional seizure must he dissolved» Cattlet vs. Heffner, 23 An. 577.
    
      Spencer & White, for Intervenors and Appellees :
    1 The proof shows that, by express agreement, the right to provisionally seize was waived until the crop was gathered, and the factor was paid his advances.
    2. The proof by parol of a subsequent modification of the written lease was admissible. 5 N. S. 459 ; 4 L. 30 ; 2 L. 61; 1 B. 358; 13 A. 504 ; 5 A. 597 ; 17 A. 32; 29 A. 551.
    3. The parol proof of facts, prior to the receipt, was admissible to explain it. 21 A. 175; 19 A. 459; 20 A. 276; 21 A. 532.
    4. Even if this receipt is to he viewed as a substantive and distinct contract, its term** hound plaintiff quoad H. &. C. Newman, not to provisionally seize for rent of 1880, until H. & C. Newman had been reimbursed their advances. Whatever may he the difficulty of construction involved in the verbiage of the receipt, it meant this, if it meant anything at all.
    5. H. & C. Newman advanced, on the faith of the contract, the six thousand dollars paid in March, and the other advance; they have a right to see to the enforcement of the contract.
    (i. The answer, by pleading certain special defenses, admits the legal consequences of the contract, the defenses being untenable.
    7. The crop had not beeD gathered and shipped, and the advances had not been reimbursed when the provisional seizure was issued
    8. The advances were made for plantation puiposes; the store was a mere plantation store, an auxiliary to the plantation, an instrument for their successful working.
    9. The word u advances ’ does not mean necessary supplies; advances are generic. The conti act covered all advances.
    10. Even the necessary supplies, by plaintiff’s own computation, had not been paid when the wrongful and illegal provisional seizure issued.
    11. The action did not abate by the death of Cain, and the claim for damages was an incident to the frustration of the illegal seizure.
    12. The claim against the plaintiff; that the seizure was illegal, was independent of the rendition of a judgment against the defendant.
    13. The duces teewtn was satisfactorily complied with. If not, it was illegally taken; it was never served. The Court properly refused to take it for confessed. C. P. 474.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sued the defendant on a contract of lease to recover the rents of several plantations for the years 1880, 1881 and 1882, amounting to $18,000, alleging that by the terms of said contract the rents for the years named were due, because of the failure of the defendant to pay the rent for the year 1880.

The suit was filed on the 13th December, 1880, and was accompanied by a writ of provisional seizure, under which the crops then on the plantations, gathered and ungatliered, working animals, contents of a store, etc., were seized.

The defendant answered, alleging in substance, that the proceeding was instituted by the plaintiff, in violation of a special agreement, by which he had bound himself, in consideration of a payment of $6,000, to be made through his merchants and factors, H. & C. Newman, on a note of previous date to the rent obligations sued on, not to proceed to collect the rent for 1880, until his said factors had been reimbursed for all advances made to him for said year. That the sum named had been paid in March, 1880, and that he was, therefore, required to ship his crops to said firm until their advances had been paid, which had not been done, and that any payment on the rent notes had been deferred until the reimbursement to his factors had been accomplished.

H. & C. Newman intervened in the suit, and in their petition set up substantially the same facts, and both the defendant and iutervenors claimed damages against the plaintiff for a violation of the agreement, and the injury resulting therefrom, in the waste of the crops ungathered, from the suspension of work, the closing of the store, etc.

There was judgment in favor of the defendant and intervenors, rejecting his demand and condemning plaintiff to pay each of said parties one thousand dollars damages, and plaintiff, or his executors, who became parties to the suit after his death, occurring during the pendency of the proceedings in the lower court, have appealed.

Before addressing ourselves to the merits of the case, there are several preliminary matters to be considered and disposed of.

The plaintiff’s counsel moved to strike out of the intervenors’ petition the claim for damages, on the ground that plaintiff and intervenors resided in the same parish (Orleans) when the petition and intervention were filed, and since the institution of the suit, plaintiff had died and his succession was opened in said parish of his domicil, and the demand for damages should have been instituted there.

This motion, or exception, was not made until after answer filed and issue joined, and, consequently, came too late.

A similar motion or exception was filed respecting the damages claimed by defendant, on the ground that no such claim in reconvention could be urged against a demand founded on a contract of lease.

This was also properly overruled, as the plaintiff and defendant resided in different parishes, and a reconventional demand is not required to be equally liquidated with the one to which it is opposed.

The plaintiff filed a motion asking for an order requiring the intervenors to produce a.n itemized account of the indebtedness claimed against the defendant, together with the vouchers, etc., and.subsequently they prayed for the appointment of a commissioner in New Orleans, to whom the commercial books of the intervenors should be produced, and in his presence examined by witnesses, and sworn copies of their accounts made therefrom by a certain witness named, and other witnesses not named.

Both orders were made, and the commissioner appointed. It appears from the return of such commissioner, that on the day appointed for the delivery and examination of the books, that Judge E. D. White, one of the attorneys for the intervenors, “ appeared at the office of the commissioner named, before the hour fixed for said examination, and informed him that the papers called for had been previously delivered by the intervenors under a subpama duces tecum from the Court; that the intervenors knew no law which required the delivery of their books to the notary or commissioner, but they would afford evoi’y facility to him, the notary or any authorized person, to examine at convenient times said books and papers, and take abstracts from, and make copies of sucji portions thereof as may be required. ”

Copies of the accounts and papers in question were subsequently delivered into the Court before which the cause was pending, and about the same time plaintiff moved to have the facts set forth in the motion to produce taken pro confesses. This motion was overruled by the Judge a quo, for the reasons stated by him, that the documents called for “had been produced, and before the day of trial, which was in time.”

The ruling was correct, the order appointing a commissioner to whom tlie intervenors were to deliver their books and papers to be examined by witnesses summoned by such commissioner, is not authorized by any law that we are aware of. There is certainly no warrant for it in our Code. The Article under which it is claimed this proceeding was taken, and which is the governing Article on the subject, is 140 C. E. This Article authorizes the Court, at the request of one of the parties, to order the other parties to bring into Court, books, papers and other documents, material in the cause, provided the party asking for their production make oath to the facts he intends to.establish by them ; and on the failure of the party so ordered to comply, the facts sworn to, are to be taken as confessed, unless it was shown that it was impossible to produce them.

It has been held in several adjudications upon this Article, that when the party against whom the order is directed, lives out of the parish where the Court is being held, that he cannot be compelled to bring liis books from his domicil or place of business to the place where the litigation is pending. And it is well settled in such cases, that-sworn copies of the papers desired will suffice. 2 A. 158 j 4 A. 534; 3 8 A. 300.

It is true it is stated in one of the cases referred to, that where the mover is unwilling to rely on the conscience of his adversary, the Court might issue a commission under which witnesses might examine the books and make copies from them. It would require a very liberal construction of the language of that decision to justify an order requiring a commercial house in the City of New Orleans to take their books from their office and deliver them to a person designated to receive them, and leave them for an indefinite time to be examined by witnesses whom the Judge might name, or the person commissioned might summon at the instance of the mover.

In the case referred to, no such order has been made, and no such order was before the Court, and the statement was, therefore, clearly an obiter. And in the present case there is no averment in the motion ■that there was cause to distrust the correctness of copies made out by the intervenors. We cannot, in this case at least-, sanction any proceeding or remedy relating to the point in question, beyond the provisions of the Code, which we think are adequate for the purpose intended to be accomplished.

It is urged by the plaintiff that judgment was improperly rendered on the intervention, and that it should have been dismissed, because no default was taken against the defendant by the intervenors, nor issue joined between them. It is true that plaintiff alone answered the intervention. It is, however, to be noted, that the main issue in the case is jointly raised against the plaintiff by the defendant in his answer, and the intervenors in their petition. The intervenors really join the defendant in his defense against plaintiff’s action, and that is mainly touching his right to proceed against the defendant and resort to the provisional seizure on account of the agreement set up in the several pleadings.

It is true that the intervenors ask a judgment against the defendant for the indebtedness claimed, but a judgment against the defendant for the debt was not essential to their right of action asserted against the plaintiff, growing out of the alleged violation of the agreement in question, so that they made proof of the existence of the debt.

Besides, there seems to be no controversy between the intervenors' and defendant respecting the debt, nor in any other regard. Therefore, it was not necessary to the regularity and validity of the intervention as relates to its prosecution against the plaintiff, that an issue by default or by answer should have been made between the intervenors and defendant. Gerson vs. Jamar, 30 A. 1297.

The authorities cited by the plaintiff’s counsel have been examined, . but are not in point.

On the Merits.

The substantial charge mado by the defendant and intervenors is the illegality of the provisional seizure, and plaintiff’s absolute want of right to institute the action, by reason of the alleged agreement referred to. The defendant, in his answer, pleads specially throe several matters of fact in avoidance of this charge. These are:

1. That at the date of the provisional seizure the intervenors had been fully reimbursed their advances to defendant.

2. That their advances wore not to the plantations cultivated by the defendant, but to his store thereon.

3. That the agreement made with plaintiff contemplated a reimbursement only of necessary supplies, and not for all advancos.

It is very plausibly argued by the intervenors counsel, that by this pleading the entire subject of controversy has been narrowed down to the issues embraced in these three propositions, and that they contain a distinct admission that the agreement averred was made, and that the plaintiff’s failure to sustain them by proof, leaves him without further defense, and justifies the judgment claimed against him. Strictly and technically this may be truo, but we prefer to give him the benefit of the general denial that precedes the special pleas, and decide the case upon its real merits, and as the evidence presents it.

We gather from the record the following as the facts of this case:

The defendant, for many years prior to 1880, had been the lessee of the plantations referred to, and the intervenors had been his factors.

The plaintiff had owned the plantations sincel878. In December, 1879, the defendant leased the property for the three ensuing years at an annual rental of $6,000, and executed the written contract upon which the action was brought. In the writing there is a stipulation that defendant was to pay plaintiff $6,000, during the month of March, the same to be credited on one of several notes held or controlled by plaintiff, amounting to some $20,000.

After signing this contract the defendant applied to the intervenors to furnish the usual advances to the plantations. Upon ascertaining the terms of the lease, and that defendant was to pay $6,000 rental, at the end of the year, and $6,000 more on an old debt, they declined to make the advances. Defendant reported this fact to plaintiff and they both went to the intervenors and there was a verbal agreement entered into by which the stipulated payment of $6,000 was to be made through the intervenors, and in consideration of that, it was agreed that defendant- was to ship the 'Crops to the intervenors, and continue shipping until they were reimbursed their advances, and plaintiff to relinquish all claim on the crops and the right to proceed against them for his rent until they were fully paid.. Here we would note that the testimony to establish this last agreement was objected to, on the ground that it contradicts the written contract of lease. It is shown, as stated, that this agreement was made subsequently to the execution of the written one. It constituted a new and independent contract, intended to modify the original, and to this new contract there was another party, the firm of H. & C. Newman, intervenors.

It is competent to establish by parol, a subsequent change or modification of a written contract. Green leaf, Ev. ; 5 P. S. 459 ; 4 L. 30 ; 1 R. 358; 13 A. 504 ; 5 A. 597; 29 A. 551.

On the 15th of March, 1880, the $6,000 was paid to plaintiff, in conformity to the agreement, and upon its payment the plaintiff gave the following receipt:

Received, New Orleans, March 15, 1880, from H. & C. Newman, six thousand dollars, to be placed to the credit of E. Pullen’s note held by me, due January, 1879. I further relinquish my claim for rent due me by said Pullen for the current year, to-wit: for 1880, until said H. & C. Newman are reimbursed for advances made by them to said Pullen.

(Signed) L. B. Cain.

Before this date the intervenors had been advancing to the defendant, and they continued afterwards to advance for the balance of the year, and when the seizure was made they had not been reimbursed said advances. As stated by one of the Newmans, in his testimony on the trial, and quoting his own words :

At the date of the seizure we had not been reimbursed for advances made to Pullen during the year 1880. At that date he was indebted to us in the sum of $32,449.38, subject to a credit of eighty-one bales of cotton of the year that were unsold at the time that is unaccounted for.” .

This statement was accompanied by a corresponding account found in the record, and is not contradicted.

Notwithstanding this fact, the plaintiff, after applying to the intervenors to pay the rent for that year (1880) which was declined, on the 13th of December, 1879, instituted this suit, which was for the rents of that year and the two following years; as the contract stipulated, that if the rent of the first year was not paid at maturity the whole for the three years should become due, and the suit, as previously stated, was accompanied by a seizure, under which the crops and all the movable effects of the defendant were seized, inflicting, as is conclusively shown, a severe loss, from the causes set forth in the pleadings.

The plaintiff justifies his action and his right to make the seizure, on the following grounds, which we will proceed to notice :

1. That the advances meant in the agreement were necessary plantation supplies, whereas the advances made were not exclusively such supplies, and the large part of them was to the plantation store.

2. That the agreement only included such advances as had been made up to the 15th of March, 1880, the date of the receipt, and not advances for the whole year; and

3. That the agreement by which plaintiff relinquished his right to seize under the conditions stated, was exclusively with the Newmans, and did not enure to the benefit of the defendant, nor affect his right to proceed against him, (defendant) so far as he was concerned.

'First. In the receipt the word “ advances” is used, which has a broader meaning than that of necessary supplies; and Pullen testifying with respect to the prior verbal agreement under which the money was paid and the receipt given, says :

Cain, agreeing to extend the payment of the rent money until the crop was shipped, and H. & C. Newman had been paid the amount of their advances.”

Neither in the verbal or written agreement was there any qualification or restriction in regard to the character of the advances to be made, and we can supply none. Were we to adopt the construction contended for, the intervenors could not even claim reimbursement for the very money that they paid plaintiff, and which was the consideration for the postponement. This was not a necessary plantation supply, but money paid on an old debt. Such a conclusion would be utterly illogical and extravagant.

Relative to the store, its existence on his plantations was well known to the plaintiff, and the purposes for which it was established. It is shown to be strictly a plantation store, to supply the laborers and employees on the places. All their accounts were kept there and settled there. It was literally an adjunct in the planting business, and the defendant testifies that he never paid a dollar out of the proceeds of the store during the year for outside debts, except for labor or servants’ hire.”

The contract between the parties clearly included such advances.

Second. The agreement, in our opinion, did include all the advances made by the intervenors during the entire year. When we recur to the objections made by the intervenors to advancing for the defendant, in view of his obligations to the plaintiff, under the first contract of lease, and the inadequacy of the security to them, as they believed, under the terms of that contract, for any advances they might make, and the evident inability of defendant to pay for such advances, should that contract, as it stood, be enforced against him, plaintiff could not possibly have supposed, after the whole matter had been explained to him, and the difficulty suggested, that the intervenors only wanted to be secured for their advances up to the 15th of March, and were indifferent as to subsequent supplies. Without even this consideration, and restricting ourselves to the language of the agreement, it seems clear enough that the advances ” mentioned meant advances for the entire, year. The word itself and the intention of the parties, evidently referred to the point of time when plaintiff could take out his seizure, that is, at the maturity of the rent note; ■ and it is manifest, it is to this point of time that the advances ” to be made, referred. That intervenors might be secured their advances up to that time, plaintiff would not exercise the right the law and contract gave him, when the rent obligation was due.

Third. The plaintiff bound himself, for a valuable-consideration, not to seize the defendant’s property for the year’s rent, when the same became payable under the written lease. This is j)lain. In the face of it, it seems idle to consider the proposition involving the hairbreadth distinction that hound him only to the intervenors, and did not affect his right against the defendant. Considering that it was this very right against the defendant that he agreed to relinquish,, it seems to us a vain inquiry as to its effect relatively to the plaintiff and defendant, except so far as might concern the claim for damages setup by defendant. But, in onrview of the subject, the agreement not only concerned the defendant and enured to his benefit, hut he was a party to it. Aud a recurrence to the situation of the parties, and the evidence bearing on it, will demonstrate this beyond question.

It appears that the defendant had not only contracted towards the plaintiff for the three years rent, but was indebted to him besides many thousand dollars. He had no other means of paying, except whathe might hope to make by his skill and labor in the cultivation of these plantations.

He could not, however, attempt to cultivate these except by the help of the intervenors or some other factor. Without such aid there was but a gloomy prospect of plaintiff getting the rent for his places, much less being paid the $20,000 he had against the defendant besides. The intervenors held claims against the defendant for favors-extended in past years. There was, therefore, an active interest prompting each of the parties to make the agreement they did. It was by this each itoped to save himself. It was not an agreement between two of the parties, plaintiff and intervenors alone, but a tri-partite or tri-lateral compact, all three being parties to it, and all three present in person when it was made. We refer to the parol agreement made just subsequent to the written one. The receipt given afterwards was merely a fulfilment of this agreement.

The defendant was not only a party to this agreement, but had, likewise, a large interest therein. It enabled him to make an effort to pay his debts, he procured an exemption from seizure for rent, when his obligation matured, and in a certain contingency, that is, if he did not make sufficient crops to pay his factors, he was even exempt from liability for the year’s rent itself. The defendant, therefore, had a clear right to oppose the seizure, on the ground of a violation of an agreement with himself.

It is to be observed that, although plaintiff’s seizure resulted disastrously to himself as well as to the other parties, still it must not be inferred that he lost everything. The evidence shows that 600 acres of land were cleared and put in a state to cultivate, at an estimated expense or value of $12,000. If he sustained any loss, it may have resulted purely from his own improvident and unauthorized act, committed in violation of his agreement. The damages allowed we consider moderate, under the evidence, and we cannot disturb the judgment in this respect.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.  