
    (38 South. 271.)
    No. 15,308.
    JOHN B. HONOR CO., Limited, v. STEVEDORES’ & LONGSHOREMEN’S BENEV. ASS’N.
    
    (Feb. 13, 1905.)
    DEFAULT JUDGMENT — EVIDENCE—SPECIFIC PERFORMANCE — DAMAGES.
    1. The court should not, on confirmation of a default, receive or consider as evidence the testimony of a witness for plaintiff taken several days before'at chambers under an oath administered by the minute clerk, and in the absence of the defendant, when he had not been notified of the time and place of the taking of the testimony, had given no consent thereto, and no order of the court had been given in respect to the matter.
    2. Plaintiff sued a corporation, alleging that, though it had bound itself by contract to do a certain thing, it had failed so to do, and, in consequence thereof, he had suffered heavy damages. He prayed for citation on defendant, and that it be condemned to a specific performance of its contract. Should the court hold that plaintiff was not entitled to a specific performance of the contract, then and in that event it prayed for a judgment for damages. Plaintiff afterwards expressly waived his demand for a specific performance. Held, that no judgment could be rendered for the plaintiff, as the contingency upon which the alternative demand was based could not arise.
    ‘'Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.
    Action by the John B. Honor Company, Limited, • against the Stevedores’ & Longshoremen’s Benevolent Association. Judgment for plaintiff, and defendant appeals.
    Reversed.
    Terriberry & Butler and Charles Joseph ThSard, for appellant. Merrick & Lewis and Philip Gensler, Jr., for appellee.
    
      
      Rehearing denied March 27, 1905.
    
   Statement of the Case.

NICHOLLS, J.

The plaintiff company is engaged in the business of loading and unloading vessels coming into the port of New Orleans. The defendants were alleged in plaintiff’s petition to be a corporation whose business it was to furnish labor to parties engaged in such business as it was engaged in. That on the 25th of August, 1903, it and the defendant entered, into a contract whereby it bound itself to employ all its labor from the association, when available, upon certain conditions set out in the contract, and the defendant obligated itself to do such work as was required of it.

That on the 8th of September it called upon defendant, under the said contract, to-unload the steamer Santanderine. That defendant, without cause, refused to unload! the said vessel. That said refusal was in bad faith, unwarrantable, and had caused it great loss of business. That it was virtually prevented from conducting its business by such refusal, and that damages were an inadequate compensation to it for the said willful and wanton breach of contract, and it was entitled to a specific performance of the contract by defendant. Plaintiff charged, in the alternative, that, should the court refuse to award judgment in its favor, ordering defendant to a specific performance of its contract, then and in that event it averred that it had suffered damages in the sum of $20,000 on account of the willful and wanton breach of contract referred to. In view of the premises, it prayed for citation upon defendant, and for judgment in its favor against it, ordering and decreeing that it comply with its contract of August 29, 1903, and that it perform • the same in accordance with its terms, and adjudged to a specific performance thereof; and, in the alternative, it prayed for damages against defendant in the sum of $20,000 damages. Defendant was cited on the 10th of September, 1903, by service on fits president, Harry Keegan.

On the 15th of October, 1903, the plaintiff, with leave of the court, filed a supplemental and amended petition, in which it averred that in its original petition it had sued the defendant as a corporation; that it had grave reasons to question the corporate character of the defendant, and it charged, in the alternative, that, should defendant be an unincorporated association, then its members were jointly liable to it, each for his virile share on the contract which petitioner signed with the association on August 29, 1903, through the duly authorized agent of the association. Plaintiff reiterated its former allegation, set forth the breach of the said contract by the members of the said association, and averred that on the 8th of September the members of the association, though called upon, refused to unload the steamers Chaucer and Dagbin, in utter disregard and in violation of their contract; that, by the refusal of the said members to adhere to their contract, it was put to great inconvenience, and it suffered great loss of business.

That it waived its claim set out in its original petition for a specific performance of the said contract entered into with the association, as the members of the same had returned to work under another contract, similar to the one sued on.

Plaintiff, naming certain persons, alleged that they were members of the association, and were jointly liable to it, each for his virile share, in the amount of damages that it had suffered, to wit, $20,000.

Plaintiff prayed that the parties named be cited to appear and answer the supplemental .and amended petition; that judgment be rendered in its favor for $20,000 jointly against said parties, each for his virile share. On November 12th the court, on motion of plaintiff’s counsel, suggesting that the defendant, though duly cited, through its proper officer, had failed to answer, ordered that judgment by default be entered against defendant.

On February 19, 1904, the district court confirmed and made final the default which had been entered against the defendant on November 12, 1903, reciting that it did so on motion of plaintiff’s attorney, and upon producing proof in support of plaintiff’s demand, and the law and the evidence being in favor of the plaintiff. In confirming the said default, the court rendered judgment in favor of the plaintiff against the defendant association for the sum of $12,000 as damages for its failure. Defendant appealed.

The certificate of the district court attached to the transcript certifies that it contains all the evidence adduced upon the trial of the cause. An examination of the record discloses that the only evidence offered on the confirmation of the default was the testimony of John B. Honor, taken in chambers on the 9th of February, 1904; plaintiff’s attorneys being then present, and defendant absent and not represented. The witness was sworn by the minute clerk.

Opinion.

There is nothing going to show that the defendant had been notified of the intended taking of the testimony at the time and place it was taken, or that it consented that it should be so taken, or that there was any order of court on the subject.

The testimony so taken should not have been admitted or considered, but, even if it had been legally before the court, it was evidence utterly insufficient on which to base a judgment. Defendant’s counsel urge that, independently of any question of evidence, plaintiff was not entitled to a judgment under the pleadings. They insist that when it waived its claim for a specific performance, admitting that the members of the association had returned to their work, that was an end of the case against the corporation, since the demand was for a specific performance, and that had been obtained.

Articles 1926 and 1927 of the Civil Code declare that, on the breach of any obliga-' tion to do or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given when they have accrued according to the rules established in the following section:

“In ordinary cases the breach of such a contract entitles the party aggrieved only to damages, but when this would be an inadequate compensation and the party has the power of performing the contract he may be constrained to a specific performance by means prescribed in the laws whicli regulate the practice of the courts.”

In this particular case the plaintiff neither asked for specific performance “and” damages, nor for damages alone. It asked for a judgment for damages only in the event and upon the contingency of the court’s holding that he was not entitled to a specific performance.

By his own pleadings subsequently he withdrew that issue from determination by us, and the contingency upon which he prayed for a judgment for damages has not and cannot arise. While plaintiff can only recover what is legally due to it, it is at liberty, within the limits of its rights, to measure and control its demands. It has done so. It substantially claimed damages from the defendant only in the event that it would not in the future specifically perform its contract. Defendant has accepted the first branch of the alternative, and complied with the contract, as it was called on to do. Defendant’s counsel is correct in saying that should have ended the case.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, avoided, and reversed, and plaintiff’s demand is hereby rejected, and its suit dismissed, with costs in both courts.  