
    NO. 8463
    COURT OF APPEAL PARISH OF ORLEANS
    JULIA MATULEVITCH versus AMERICAN RAILWAY EXPRESS CO.
   Dinkelspiel; J.

The allegations of plaintiff's petition substantially allege: That on or about August 14th, 1918, the American Railway Express Company, undertook to deliver to petitioner at 116 West 73nd Street, New York City, a certain diamond pin, belonging to plaintiff, of the value of Two Thousand Dollars; and alleging further all charges having been paid, and notwithstanding amicable demand, said pin has never been delivered to plaintiff, either in New York, or elsewhere, but continues in the possession of the Express Company, which Company admits this fact. The prayer of the petition is that the Express Company be duly cited, and after due proceedings had, plaintiff have judgment either for the delivery of the pin of in default thereof, for the amount of Two Thousand Doliere.

To this petition the Express Company filed the following Anon answer:. It substantially admits that it is a common carrier, and as such received a oertain diamond pin, consigned by the Hart Jewelry Company to plaintiff at the address mentioned by her. Further averring that subsequent to delivery by the consign- or, respondent was advised that the pin shipped had not been wholly paid for, and that the consignor had a vendor's lien and privilege on said pin, with the right of stoppage in transitu, and under instructions given by the consignor, respondent did not deliver the pin to plaintiff. The prayer of the answer is to be permitted to st±*ps8K deposit the said pin in the registry of the Court end that the Hart Jewelry Company kxs be cited to appear and make any claim it may have for the possession of said pin, and that respondent be dismissed, with oosts, and for all general relief.

Subsequently the Public.Administrator filed a motion in this case, to the effect that plaintiff claimed the ownership of a diamond pin valued at Two Thousand Dollars, which had been consigned to her by the Hart Jewelry Company, and. that the Succession of the late Dino Valesi had been opened in the Civil Dis'trict Court, and further showing that the pin forms part of the Succession of the deceased; that it was purchased by him, and that the olaim ma.de bv ulaintiff, for reasono assigned, was not valid, hence praved that the pin in auestion be turned over to the Public Administrator until the further orders of Court.

Subsequently the Hart Jewelry Company filed its intervention, alleging that plaintiff has no Interest as owner or otherwise, to the diamond pin in question,, and alleging that said pin on June 1st, 1918 was sold to- Dino Valesi, for 81395.00 and there remains due and unpaid, the sum of 8333.01, on Which intervenor olaims that it has a vendor's lien and privilege. Alleging further that' on August 15th, 1918, Valesi instructed your intervenor to send the pin by express to the plaintiff, to whom he desired to give it, and giving the plaintiff's address, as heretofore stated'. That subsequently intervenor deliverer said pin to the American Railway Express Company for delivery to plaintiff, in Hew York. Valesi committed suioide in lew Orleans, and intervenor exeroised its right of stoppage in transitu, in ordeir to protect its vendor's lien for the balance due on the pin. That under the laws of this State, the intention to • donate said pin to plaintiff was never completed by manual delivery henoe plaintiff is not entitled to the pin in question,' but the estate of the deceased, under administration, after paying 8333.01, being the amount for Which tt has a vendor's lien and privilege, was the owner of the pin.

The intervention and third opposition of'the Public Ad- •• minietrator, alleging that the property in question is the property of the Succession of the deoeased, Valesi, was filed; 'that ■ plalisi tiff is not the owner, but that the heirs- of the 'deoe&séd-; áre the;owners of the pin in question ana are entitled to it, 'and-ask9d‘.;$a'C their behalf for judgment in their favor.

On the trial of this ce.se, plaintiff"'-aa;-a witness test!-fled, that, being shown, the'.diamond,'-brooch and-:-aked, wheV^WV^fti^ jliked it or not, she replied that she was crazy about it, and that . having-with her a pearl and a diamond ring, she was asked: You can have it if you want it, provided you give me the diamond and the pearl that you have got. Subsequently she testified that she gave this pearl and diamond to the deceased, Valesi, in exchange partly for the broooh in question; he ms to have given her,this This' occurred in the month of April, 1918; she testifies further that she gave the pin and the pearl to the deceased, and informed the Hart Jewelry Oompany that she would prefer to have a white stone set in the center of the broooh, for she did not like the yellow stone; and then:

Q. When was the next time you heard of it? A, Several weeks elapsed, and I think Mr. Valesi must have been in financial difficulties, beoause the pin wasn’t presented to me, and the only reason why it wasn't must have been beoause he didn't have the money to pay for it, which I didn't know.
Q. Have you seen that pin since this substitution was made for the yellow stone? A. No, X only saw it in the store with thaj: the yellow stone, but not sinoe it was sent to me.

The other portions of her testimony, including cross interrogatories, by a careful examination shows material discrepancies in parts of her testimony, but we do not oonsider it neoess^ry to quote any further at length from same,In connection with her t?s■timony telegrams and letters going to and hsxi between plaintiff and-deceased were offered and filed in evidence.

In behalf of the Hart Jewelry Store, the testimony of Miss Denekamp shows that she had been connected with the Hart •Jewelry Company prior to June, 1918, and when the sale was made •th the -deoeased} she made the sale herself, plaintiff was in New •York at the time.

State exaotly the- transaction from its beginning? A. Mr. Valesi ■báme. in .to look at she pin, and I showed him the mounting, and we {•figured how much it would cost to make up the pin; in the meantime Mrs. Bickhart and Mr. Valesi had a falling out, so he asked me to hold the pin up; whan he got to New York a month or eo after, they had a fuss, and plaintiff wrote the witness a letter of inquiry, which is annexed to this reoord.
Q. Whet wss the price of the broooh that Mr. Valesi first looked et? A. The first was $1155.00.
Q. Did he want any change made in the brooch? A. He always left anything to ma my judgment, he bxsaght bought everything from me, and I told him that the center stone didn't correspondent with the others, so he said if I could put a better stone in it, X believe it would come up to $1245,00 or $1295,00; after I had put the better stone in it, I allowed him $190.00 for the stone, snd then he paid so much for the broooh.
Q. Was delivery of the stone made in New Orleans to Mr, Valesi or Miss Bickart? A, The stone or the brooch.
Q. The Brooch? A. Never, that letter will prove that.
Q. Do you recall her saying in your establishment, if Mr. Valesiwould give her that broooh she would give him her engagement ring?
A. I don't know anything about an engagement ring.
Q. Or any other piece of jewelry? A. No I didn't, know she had any but what he gave her.
Q. Did you hear Valesi offer to give her this brooch provided she gave him her engagement ring? A. No.
Q. Or any other jewelry she had? A. No, my letter will show that too.

fit* Being shown the itemized account between the deceased and the Hart Jewelry Company she says it is correct, and the last check was for $333.00 and ha had died before the check was due it having been post dated. The brooch was finally made up and expressed, and the same kind of stone Mr. Valesi ordered, and.it was thus on the 13th of August.

On cross examination.

Q. When Mr. Valesi ordered that, did he tell you for what he was ordering it? A, Well, they &bx* both looked- at the mounting together one day in the store; I happened to buy the mounting; and in the meantime, like I told you, they had a falling out and he decided not to give it to her.
Q. But didn't he originally intend to give it to her; wasn't that the original purpose? A. Yes, sir.

She testified that the brooch was sent to Hew York, consigned to Miss Bickart. Mr. Hart made the shipment.

Q, I don't know whether I understood you correotly or not; I understood you to say that there was never any actual delivery of the broooh? A. Hot.physically.
Q. Either to her or to Mr. Talesl? A. Ho, sir.

The testimony of Samuel A. Hart states that he is the President of the Hart Jewelry Company, and was so in 1918; that he was RKmsiotsnixxi present at various times when the deceased and Mrs. Bickhrt were in the store negotiating on different occassions. There was nothing said by either one about an exchange of that broooh from him to her for an engagement ring or any other piece of jewelry that she had. SMexc They were in the store á number of times, he never heard any discussion that deceased would give her the broooh if she would give him the ring; never saw a ring. He testifies further, the broooh was never delivered to Tales! or Mrs, Bickart in Hew Orleans; he swears further that Mrs. Bickart was not present et the time the selection was made, and the objection in reference to the stone and its color was made by the deceased. The deceased gave a post dated check for $315.00, the check being dated September 15th, and items, it was agreed and understood that when this check was paid the broooh belonged to the deceased, but he died whilst the brooch was in transit.

We hsve detailed the pleadings, together with the testimony of the parties connected with this case.

It Appears proven that the deceased bought the broooh in question from the Hart Jewelry Company, and had certain alterations, a white stone put in the broooh, and a yellow stone removed, at an extra cost. It appears iurmer mat whilst the plaintiff saw this brooch, her iestiflony to the effect that she^any jewelry to the deoeased in lieu or exchange in order to get possession of the broooh, is not .confirmed, but on the contrary Mr. Hart and Miss Denekamp both testified' that nothing of this ■kind ever ooourred. The deoeased bought this brooch and had the stone changed-of .his own accord, he paid a large amount during his lifetime, and gave a post dated check for the remainder, when he ordered that the broooh in question be sent to plaintiff. Dying in the meantime, the Jewelry Company stepped the Jswmlxjc delivery of this broooh in transit and the. question for our determination, is whether or not under the facts as herein recited, the brooch never reaching the possession of the donee, wss a delivery as contemplated by the law, aotually made to her.

The Civii Code, Art. 1539 provides: "The Manual Sift, that is the giving of ¡smxpxsstl oorporeal movable dm effects accompanied by a real delivery, is not subject to any formality,"

It was held in the case of Succession of Sinnot, versus the Hibernia national Bank, 105 An. p. 7Ó5: "There can be, In louislana, no legal gift causa mortis of a movable, whether it be corporeal or any- incorporeal movable,"

'"The agency of a person to deliver property to the donee thereoi xs revoked by the deamof the donor*

Where me aexxvery of property to a third person, to be delivered to the donee thereof, is not enforcable as a gift beoause of the death, of ms aonor- before actual delivery to the donee, it cannot be enforced as a declaration xn irusi xor the donee,®

Trubey vs. Pease 68 N. E. 1005.
Alexander Brother Syndic of the Creditors of Peter Conrey vs. John Saul, et al. 11 An. 223.
Elkin's heirs vs. Elkin's executor. 11 La. 224.

It is contended ori the other hand, that WtáSX Seo, 11, Article 94, of 1913, makes it the duty of the carrier to deliver the goods to the consignee. Heading the aot in questions "A carrier, in the absence of some lawful excuse is bound to deliver goods upon a demand made either by the oonsginee named lh the bill for the good3, or if the bill is negotiable by the holder thereof." And following various other causes for deliver, adds! "In case the carrier refused or fails to deliver the goods in compliance with the demand of the consignee, or holder, the burden shall be upon the carrier to establishethe existence of suoh refusal or failure."

And we find that in this c.ase the fact that thé oaxrier ■.vas notified that there was an impediment in his delivery of the article in question, first because of the death of the donor, and second because of the claims ms.de bjcxUiKxxxxtflnM of the vendor's ■ lien and privilege, we hold that under these ciroumstanoes the carrier was not bound to deliver the property in question, but on the contrary, acted wisely in doing what it has done.

We have examined the cases cited by counsel for appellant, O'Neill vs. Leinicke, 49 A. 3; Crawford vs. Puckett, 14 A. 649; Succession of Turgean, 130 La. 650; and waxiind in our opinion these authorities differentiate, and a careful reading will show that they in no wise conflict with the authorities we have cited in this esse.

The judgment decreeing that there be judgment in favor of the Hsrt Jewelry Company end against the Succession of Dino Valesi, in the full sum of $332.01, with interest from June 1st, 1918, and recognizing its vendónos lien and.privilege on the jewelry connected herein; and further decreeing that there be judgment in favor of the Public Administrator and the Consul of Italy, •-.8 representatives of Dino Valesi, and against Julia Biokart} decreeing said succession to be the owner of said Jewelry; ■_ subject to. said vendor's lien and privilege; and further rhat tne American Bailway Express Company surrender said jewelry to the Publio Administrator, as representative of the Succession of Dino Vales!, and be hence dismissed, with costs in its favor; is correct.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court a quo be and the same is hereby affirmed, costs of both Courts to be paid by the plaintiff, Mrs. Julia Bichart.

-Judgment affirmed-  