
    CHARLES F. CLAIBORNE JUDGE.
    
    KIMBRO & THERICT, APPELLANT, VS H. C. WARMOTH.
    No. 7507.
    April 17th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

Petitioners claim of defendant two siphons, one centrifugal pump, two sections pipe, two discharge pipes, 1 scale, 200 feet of pipe and one Rice Harvester; all of the value of $1200; thqy allege that they left the a one on the Sarah Plantation, belonging to the defendant, sometime in January, 1916, with his consent and with the agreement that there were to be no charges until they cared to send for them; that they have demanded the return of these implements from the defendant who has refused. They pray to be recognised as owners of said implements, and that the defendant be ordered to return the same to them.

The defendant admitted having in his possession the two siphons, the centrifugal pump, the scale, but denied having the pipes unless they formed part of the siphons, and denied any agreement to return them to plaintiffs without charge; that plaintiffs left tho rice harvester exposed to the weather and that it is now of no value; that plaintiff left the pumos on tho batture and it became imbedded in the mud; that defendant dug it up and removed it to a place of safety at a cost of Si25.

Assuming tho position of plaintiff in reconvention the defendant, H. C. Warrnoth, alleges that on November 1st, 1914, he leased to the plaintiffs, Kimbro and Theriot, three plantations known by the names of Idlewild, Sarah and Live Oak, for th8 year 1915; that one of the conditions of the lease was thiss

"It is agreed that lessees shall put seed cane down in the fall, enough to plant 180 arpenta and prepare the land in the fall for planting ISO arpenta in cane"; that the said Kimbro and Theriot did not put down enough

sugar cane to plant 180 arpenta; that the plant cane was covered. and H. C.Warmoth was unable to ascertain it» quantity until the tima of planting» when it was discovered that the seed cane left was'only sufficient to plant 85 arpents leaving a deficit of 95 arpents; that Kimbro and Theriot should have put down five tons for every'arpent or 475 tons for the 96 arpents; that seed cane had a value of $5 per ton, or $2375.00 for the 475 tons; for which the plaintiffs are indebted to the defendant, and which they refuse to pay, notwithstanding demand;

that himbro and Theriot borrowed of defendant two cane wagons which they were to return after the harvest of the crop, but which they failed to do until December 1917; that they, therefore owe defendant $30 per wagon, or $60, for the rental of said two wagons;

that Kimbro and Theriot also owe the defendant $25 for digging up and storing up the pump;

that Kimbro and Theriot also owe the defendant a balance of $12.70 on the lease Of the Cedar Grove Plantation;

that Kimbro and Theriot also owe the defendant $50 for storage of the two siphons and of the pump;

that the amount due by plaintiffs to defendant therefore amounts to $2522.70;

that defendant retained possession of the implements claimed by the plaintiffs for the purpose of securing the nayment of his claims, and that he advised the plaintiffs that he would deliver said implements to them, whenever they paid him his claims;

Wherefore defendant prayed that plaintiffs' demand be rejected, and that'he have judgment against them, in solido, for $2522.70 with legal interest from judicial demand; that his lessor's privilege upon the implements claimed by plaintiffs and his right to retain them until his claim was paid be recognised, and that they be sold to pay his claim.

This answer was filed May 18th, 1918.

There was judgment "in favor of defendant H. C. Waxmoth, and against Kimbro and Theriot, dismissing said plaintiffs' suit at their cost".

Kimbro and Theriot, plaintiffs, have apoeaív-*, _it hag not»^yy--

In thie Court, defeni ever to the appeal in which he alleges that the judgnent "ie contrary to the low and the evidence in that said judgnent did not pass upon the reconventional cjecand of defendant H. 0. ür-moth againet Kimbro and Theriot,, 9. K. Kimbro and B. H. Theriot, individually and in solido, in the full sum of $2522.70 with legal interest from judicial demand, and that aaid judgnent should be amended by decreeing in favor of H. C. farmoth, defendant in the original action and plaintiffs in reconvention, and against the aaid Kimbro and Theriot, G. B. Kimbro and B. R. Theriot, in* dividually and in solido, in the full sum of $2522.70 with legal interest from judicial demand*.

As the defendant,in his sworn answer and in hia testimony, admits that the plaintiffs are the owners of the implements by them claimed, we must interpret the judgnent in favor of the defendant as one recognizing his right to retain possession of plaintiffs' implements in payment of the amount due to him by the plaintiffs -, and otherwise rejecting defendant's reconven-tional demand.

It is true that the judgnent does not, in so many words, reject the reconventional demand, but it is evident that it means as much.

A judgnent in favor of plaintiff is a necessary denial of the reconventional demand. 4 La., 40; 6 A., 222; 14 A., 860; 35 A., 365; 38 A., 571.

A judgnent in favor of defendant’s reconventional demand is necessarily one rejecting plaintiffs' demand. 19 A., 98; 14 A., 564, 565.

A judgnent in favor of defendant settles all points in controversy; it rejects the plaintiff's demand and the defendant's reconvention. 19 A., 304.

The silence of a judgnent concerning certain claims in contestation is equivalent to a rejection of them. 32 A., 836; 35 A., 366; 36 A., 398, 722; 38 A., 701, 702.

But the defendant has not appealed from the judgnent rejecting his reconventional demand. Re eannot have thdcMuitaaanfc

In Levert vs Berthslot, 127 La., 1004, the Court saidon page 1013:

"Where, by the verdict of the jury, the demand of the plaintiff was nonsuited as was also the reconven-tional demand of the defendant, and likewise the demand of the intervenor, and thereupon the plaintiff appealed, but the .defendant and intervenor did not, the latter, as appellees, are not entitled, on the appeal of the plaintiff. to bring before the Court for adjudication on the appeal the demand of the defendant in reconvention and that of the intervenor on its intervention under a prayer for an amendment of the judgment apuealed'from. Those parties are not seeking an alteration of a judgment which the plaintiff has obtained in his favor, but the absolute reversal of the judgments which had been rendered against them respectively, on their individual demands". See also 1st. Mc Gloin, 78; 21 A., 714.

The cases of Lange vs Baranco, 32 A., 697, and Vicksburg R. Rd. vs Traylor, 104 La., 284 (299), are not in conflict with the above cases. In both these two cases the plaintiffs issued an injunction and the defendants reconvened for damages caused by the illegal issuance of the writ. There was judgment against plaintiffs and against defendants in both cases. Plaintiffs in both cases appealed;- defendants did not. Defendant in the first case answered the apneal and prayed for an amendment in his favor. The Court allowed it, but failed to refer to the case in the 21 A., 714. In the second case, 104 La., 284 (299), the Court said:

"There are two demands contained therein, one covering a demand for interest, attorney’s fees, resulting from the first injunction, and the second claiming interest, attorney's fees, damages etc. resulting from the last injunction. A question has been raised as to whether these demands having been disallowed by the District Court and defendant slaving appealed themselves are before us on ths present appeal through a prayer tor an amendment of the judgment below.
• Appellees declare that particular question wa* passed upon in Lange vs. Barencro, 32 Ann. 696-699.
"The claim for danagss as resulting from the second injunction is incidental to and directly connected with plaintiff's proceedings in the present suit; it fall’s therefore under the doctrine announced in the case cited. The claim for damages, etc., resulting from the first injunction occupied the same relation to that particular proceeding which the other does to the second, hut instead of passing upon it when judgment was rendered in the first suit, the rights of the parties touching the same were reserved.
"By that action it became the subjeot of a separate and independent suit or demand, and that is the position which it occupies in the present action. It was incidental to the first injunction, but not to the second. From that standpoint we think defendant should have appealed from the judgment disallowing it in the present suit.
"It cannot be altered or reversed by simple prayer for amendnent’.

We do not think that the reconventional demand in this case ^cas "necessarily connected with and incidental to the" main demand, within the meaning of the above decision and we are, therefore, of opinion that in order to bring up the matter on appeal before us, the plaintiff in reconvention should have brought the matter up by appeal, and could net do do by mere answer to the appeal. C. P., 375.

It seems to us, besides, that these two cases have- been overruled by the case of Levert vs. Berthelot; and this last case appears to us more in consonance with law and jurisprudence.

Tne only question therefore left for our examination is the correctness of ths judgment in favor of the defendant dismissing the main demand. Ve must not reverse the judgment unless we are satisfied that it is wrong.

have already seen that ths plaintiff, ’ey their lease, «ora obligated to pat down nod cano in the tall enough to plant 160 arpante.

The testimony establishes, beyond a doubt, tnat the plaintiffs, in the fall of 1905, planted 60 acres; that with the oane which they left in windrow, the defendant planted at ■oat 38 aoros in the spring of 1916, and sold enough oane to a neighbor to plant tire acres, making in all 103 acres, 1 earing - a deficit of 77 acres.

The defendant testifies that it requires four or fire tons of cans to plant one acre, according tó the quality of the Cane and that is not contradicted; to plant 77 acres would the re - fore require at least tour times that number of tons or 308 tons; the eridenoe as to the value of a ton of cane at that time varies from 32.75 according to the plaintiffs to $4.63 according to the defendant. Taking plaintiffs' om figures the '308 tona would be worth $847.00. The plaintiffs would therefore owe the defendant that sms as part of their obligations under the lease.

Ur. Theriot testifies that he paid for the pump $325; for the scale $160, and for the rice thresher $80. Ur. Kimbro says that they purchaeed a lot implements, including the siphon, ' for about $450, out of whioh they sold the boiler for $250, leaving the value of the siphon at $200, fixing the value of plaintiffs* implements at $765.00. The amount of defendant's claim therefore exoeods the value of the implements of the plaintiffs detained by him and upon which he has the lessor* s privilege and right of detention, by at least $82.

The plaintiffs contend that the deficiency of Cans was due to the lack of care given to it by the defendant after they had left the plantation on January let, 1916. The evidence does not satisfy us that such was the caws.

They, also complain that the cane was planted too late towards the and of Uarch, when it should have bben planted in January or February. Ve are not satisfied that the deficiency of oane was caused by that delay; we believe it was owing rather to ths quality of the cans in windrow.

Thqy also argue that the plaintiffs and the defendants had a settlement of each other's claims in January 1916. That •is true. Bui that seiflembrit could not ’have ’had -in contemplation ths necessary quantity of cane which could he ascertained only long after in the spring when the cane was dug out of the windrow and planted long after the settlement.

Tney also plead that the defendant has failed to put them in default as a prerequisite to recovering, damages for a breach of the contract. The defense does not involve a claim for damages. It is a demand for specific performance of the plaintiffs' obligations Under the lease; in other words, a demand for payment.

■By payment is meant, not only the delivery of a sum of money than such is the obligation of ths contrast, but the performance of that which the parties respectively undertook whether it be to give or to do*. C. C., 2131 (2122).
"Although we understand jsomnonly by the word payment only that-Batrmee=ás which those who. are indebted in sans of money acquit themselves-of their obligations by paying money; yet wq may give the name of payment in general to all the-Ba£s&as*=in¿*ínich debtors acquit themselves of their obligations. For whatever frees the debtor from his obligation is instead of payment*. 1 Domat (Strahan) p. 891 § 2240.
•Real payment is the real performance of what one has bound himself to give or to do. When the obligation is to do something; the real payment of such an obligation consists in doing the thing which one has bound himself to do. When the obligation is to give something, the payment is the giving and transferring . the ownership of the thing". Pothier on Oblig. § 494.
■In its most general acceptation, and in its application to the very object of the engagement, the word payment signifies the performance of the duty which forms the subject-matter of the obligation, whether it consists in giving, in doing, or in not doing. It is said of an obiigor that he pays, when ha executes what he has promised; solvere dicimus eum qui fecit quod facere promisit*. L., 176, De Verb. sign. (We aay that ha pays who do68 what ha has promised to do). 3 Larombiere on Art 1235; 2 Delvincourt. p. 161 - 7; Toull. § 5 p. 10; 12 Duranton p. 12 § 9.
"The law dowa not require a previous demand, when the suit is one of revendication, or to enforce the performance of the principal obligation resulting from a contract, other than those for the payment of money where an amicable demand is required, and that merely in relation to costs or interest ¿2 mora11. 16 La., 386; 24 A., 370.

Although the judgnent of the District Court may not be technically correct it nas done substantial justice between the parties and it is therefore affirmed.

April 17th, 1919.  