
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    WIDOW CHARLES PERRY, Appellee, versus JUNIUS HART PIANO HOUSE, LTD., Apellant.
    No. 6724
   O S I 5 I O 3

Max. Dinkelspiel. Jug.se.

In February 1909:plaintiff bought of the defendant a piano for the sum of $400.00, on the installment plan, at $8.CO a month, and the contract specified that should she fail to pay the price afe it matured she would deliver the piano to defendant, and up*rj|ier failure so to do when requested, that defendant was I authorized to take possession of the piano and sell the Same to the best advantage within ninety days in satisfaction of the balance due.

The first few payments were made promptly, but thereafter the contract terms were not strictly complied with. Plaintiff, however, paid small amounts at indefinite intervals and gradually fell into arrears, so that by the end of May, 1910, she had paid a little in excess of one-half of the amount that had then matured under the contract. At that time there were deferred payments due the defendant, and plaintiff went to defendant's establishment and informed them that she., intended temporarily leaving the •city, but would return.shortly to her home. There is nothing in the record to show that she askéd for an extension of time for payments, and certainly, if this was,not so, there was no extension offered or made. If there was, the record fails to show it.

Plaintiff at the time either kept a lodging or boarding house and had, according to the record, quite a number of people stopping with her. After she had left the city a day or two, the defendant sent to her home one of its collectors. This man called and asked for the whereabouts of the plaintiff and was informed by one of the boarders or lodgers that she had left the city and., had notified defendant of that fact, and thet she would shortly return. He tecane insistent, seeming not to understand why or wherefore plaintiff had left, and the hoarder, upon ascertain» ing the nature of the business, offered to pay, partially, the amount past due, a3 heretofore recited, to- the collector. The latter remarked that he couia not do that without seeing the defendant, his employer, and, with this statement, left the house. The next thing that developes is that men, sent by the defendant, came to plaintiff's house and forcibly took possession of the piano, against the protests of all the people in the place, without any warrant, much less the institution of any civil proceedings, «nd by force, notwithstanding the remonstrances of the people in the house, the piano was taken to the defendant's store.

Subsequently plaintiff was informed of the.facts, and immediately returned to Hew Orleans and at onef^went to the defendant's place of business ana there protested over and .over again at what had been done, without cause, - ready and willing to pay the installments, but defendant’s agents refused to accept, gave no explanation of any kind or character to plaintiff, and, after repeated demands to get her property or to have some satisfaction, in knowing where it was, she was finally told that the piano had been sold and was no longer in existence so far as she was concerned, without stating to whom it had been sold or anything else about it.

This was the beginning of the events subsequently to follow.

The record of the Civil District Court, Ho. 105,104, Dibision "B", shows that a petition was filed by the plaintiff on July 7, 1910, in which the allegations were substantially to the effect heretofore stated. In the 4th article, the allegations are: "That petitioner filed suit for the damages resulting from said tresspass and unlawful entry of her premises, and therein these defendants reconvened for the balance due them by petitioner on said piano." Alleging, further, ^'Shat said suit Ho. 94,069 of the docket of this court enaed by judgment in favor of the defendant.

Prom that judgment there was an appeal to this court, which will he found in Court of Appeal Reports, Volume 1C, at pages 170 ot seq. The organ of the court was the Honorable Emile. Godchaux. At page 174, the court says:

"Plaintiff does not sue for any pecuniary loss entailed hy defendant's aot, hut confines her claims to damages for the humiliation suffered, etc., and to exa: plary c'unages. "1'fK is no Question that she was greatly shocked and humiliated hy w?>at occurred, several of her tenants left her on the plea that they feared that the balance of the furnishings of the house would he removed, and the fact that the piano was of comparatively small value and was removed, without violence or injury, dees not materially affect the extent of defendant's liability."

They cite Thayer v. Littlejohn, 1 Robinson, 140; Van Wren v. Flynn, 34 A., 1158; Boniel v. Block, 44 A., 514.

When the ease again was tried in the lower court, after hearing pleas, exceptions, answers, - all of which is evidenced hy the record and need not he Quoted in this opinion - the court rendered judgment in favor of the defendant.

Plaintiff then appealed to this court, and the judgment was reversed. (See Court of Appeal Reports, Vol. 13, p. 416, where again his Honor, Judge Godchaux, was the organ of the Court).

After the ease want hack "to Hi vision "A" of the Civil district Court defendant's attorney wrote to plaintiff's attorney asking him to make up a statement of the judgments, in order to have settlements, and the reply'was accepting the cheek of the Junius Hart Hiano House Ltd., the defondant, for Í20.G0, and both plaintiff and defendant ¿iked the docket satisfied.

It is here urged in brief and argument hy the defendant's counsel that both judgments heretofore alluded to have been extinguished and the docket satisfied, henee the matter is res judicata, and that there was not even an application for rehearing hy Rrs. Perry, and therefore she was evidently satisfied with what she sot, anil she was not entitled to the return of the pienoj that she owed the Junous Hart iiano House $226.00 with interest, approximately altogether Í4G0.00, that this was a final Judgment and therefore must he so respected and regarded.

We do not agree with counsel's contentions, Ehe suit for damages is one thing, the suit for the possession of the piano, and the judgment thereunder, is another; therefore there can he no res Judicata.under the law. And the judgment rendered hy this court in- the last case, in our opinion controls, and it disposes of the question of res judicata clearly, in this way; "Certainly the judgment cannot he interpreted as awarding to defendants a permanent or indefeaBihle right of possession of the property, for that would he tantamount to a recognition of defendants' ownership of it; while the fact is that the question of title was never involved in that proceeding, hut on the contrary, the judgment itself, in recognising defendants' privilege as unpaid vendor and his right of retention, negatives his ownership and stamps the character of his possession as merely temporary or defeasible." Again: ''In other words, since the first judgment recognized in defendant hut a tenporary right of possession, is no har to the present action, which is based upon the contention that this right has since terminated.”

Finally,.in the able brief of counsel, in the alternative, - the plea ol res Judicata ‘being overruled, as has been done, - it is contended that'having purchased the piano in February 1903 for $400.00, payable in installments, the piano having baen removed on the 14th of June 1910, and sold in June 1913, counsel asks "How much was the piano worth at that date?" -He then quotes from the testimony of a hr. Stocker, who, amongst other things, swears that he sold this piano on monthly installments of $6.CC for $276.00, that it cost defendant at least 25$ to collect the installments, and therefore, under the cireumstanoes, the net amount would be $206.26, which counsel says is a good price for a second-hand piano bought in 1909 and standing idle until 1913.

This may he true: we have no method of ascertaining whether it be so or nót¿. But, taking it for granted, it can have no possi ble application to the facts of this cause.

When plaintiff had in the meantime paid the entire amount due defendant and therefore was entitled to the article that she had bought, - the piano in question, - the least that defendant should have done-; under the judgments rendered, waB to have repaid her the $400.00 which the judgment of the lower court allowed and whether defendant sold it at one price or another, and whether it cost 25$ more or less in order to effect sales, make collections, etc., is absolutely immaterial to the issues as presented in this cause.

The piano house, defendant, had refused to return the piano which it had previously unlawfully disposed of, and therefore wx wrongfully and by its fault put it beyond its power to return the piano to the possession of its ownwr. In acknowledgement of its wrongdoing, and to avoid reimbursing $400.00, interest and costs, that she had paid, defendant offered to give her another much inferior piano, which she of course refused. Hence this suit, wherein she has recovered the price she paid on the piano illegally taken from her.

V/ith the authorities quoted in the opinion of this court heretofore rendered, and cited in this cause, there can be but one result, and that is that the judgment of the court a quo be and is hereby affirmed, with costs in both cases.  