
    NO. 8783
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES EPSTEIN versus EDWARD A. CHAILLOT
    
      
    
   DinkelspielJ J.

Plaintiff institutes this suit, alleging that defendant As indebted unto him in the sum of $300.00, he being the holder . owner for value and before maturity, of eleven rent notes, equal to the sum claimed, the consideration being for lease of premises 3503 Port Street, at 3 monthly rental of $35.00. The notes in question represent rent due from January 1923 to December 1933, inclusive; alleging that defendant leased from the prior lessor the premises in question, and Flicker, the prior landlord endorsed said notes; ths-t the notes are identified with the lease and aot of 3ale annexed hereto, and that the defendant having failed to pay the rent for the month of January has abandoned the leased premises and has left the State; plaintiff has a lessor's lien and privilege for the payment of the rent due and Secured by the contents cf the leased premises, and fearing, end petitioner has good reason to believe, that lessee will remove the property upon which he has a privilege, out of the leased premises, hence pls.intiff may be deprived of his lien, prays for a writ of seizure and algo for the appointment of a. curator ad hoo to represent the absent defendant, and prays for judgment in the full amount of hie cleim, with legal interest thereon from judicial demand until paid, together with recognition of his lessor's lien and privilege on the contents of the leased premises, and that said contents be sold ana petitioner be sis paid out of the prooeeds thereof by preferenoe and priority over all other persons. This petition was sworn to by plaintiff and the writ of provisional seizure issued ap prayed for.

The return of the Sheriff annexed to the record, show ths,t defendant oould not be found; the contents of the premises in question were seized, and Thomas R. Rosier was appointed curator ad hoo to represent defendant. He answers, first pleading that on the face of plaintiff? petition the Court was without authority to appoint a oure.tor ad hoo, and further that the petition difdcses no cause or right of action. Finally answers with a general denial.

An intervention and third deposition was filed in this c&áe in behalf of the United States Slicing Maohine Company, who set up that they are the owners of a certain United States Slicing Machine, which was seized by the Civil Sheriff in this case; that they leased ss.id machine to William Flicker, end the ssid Flicker wrs in possession when the writ of. provisions! seizure issued and when the seizure in this ca.se was made, and that said Flicker held the said Slicing machine as a lessee under a- contract of lease between intervenor and Flloker, dated April 16th, 1931, annexidg a copy of the lease to petition; and alleging further that the slicing machine is not the property of the defendant; that plaintiff hss no lien or privilege of any kind upon said machine end thet sala plaintiff in this suit never had any rights or lien or privilege upon ssid machine either in law or in fact. Alleging further that there was no contract of lea-se between the defendant Flioker and the plaintiff, and that plaintiff has no right, title or claim against 3aid maohine s.nd is holding the same through fraud and contrary to -law; that demand was made upon said plaintiff end he was notified of this fact end requested to return the said maohine but refuses to do so, hence intervenor and third opponent prays that tfcsxs their petition hs of intervention and third opposition be filed and that there be judgment in their favor <iixa:Bi±ngx± decreeing them to be the owners of said silo-ing machine, and th"t same was not subject to provisional seizure herein, and finally prayed that the plaintiff's suit claiming a lien and privilege be denied and that the property in question be restored to interveners.

We find annexed to the petition, a copy purporting to be a sale or lease to William Flicker, and we quote therefrom the following provisions:'

"Provided said rent shall be promptly and fully paid in cash which shall include the payment 4>f any judgment secured with akssisxiiiA costs and attorney's fees, and s.ll the terms and conditions of this lease performed, the lessee may elect to become the owner of the property, snd such election shall rest title to said property in lessee."

The terms for said machine ss expressed' in this contract was the arm of |375.00, thirty four dollars of which was paid in cash snd the balance was on credit.

Plaintiff has fully proven his case in so far as the evidence shows, and there is no denial that he is the owner in good faith of the rent notes in question, and the only question presented to this Court is whether or not this was a sale of a slicing maohine seized, as snown in this record, among other artioles of property found in the premises msaiz stated, or whether it was a mere lease.

In the esse of Seeling vs. Dumas, found in the 48th Ann. at page 1499, the Court held:

"In the opinion heretofore rendered by us, we adopted defendant's construction of the contract between plaintiff and Theresa Hamilton that it was one of sale. We reached that conclusion from the fact that possession had been given to Theresa Hamilton, from the large amount payable weekly, which viewed from the standpoint of the contract being a lease-would be out of proportion to the ve,lue of its use, and from the clause in the act by whioh, on dsfait default of any payment as agreed, the whole value of the furniture as mentioned in the annexed promise of sale would be considered due."

4 In the case of Barber Asphalt Paving Co. vs. St. Louis Cypress Company, 121. La. 155, the Court in the body of its opinion says:

"Parties are at liberty to make contracts so long as they are legal, and to agree to accidental stipulations; but where they actually make a contract with fixed ldgs'l essentials they are powerless to control the legal effect of ths contract itself, The contract being made, the law governs its results." Citing numerous authorities.

Again: "In the case of Adams Mach. Co. Vs. Newman, 107 La. 703, ths facts were that the plaintiffs had sold certain machinery, pert cash end part on a credit represented by interest-bearing notes of the purohosar maturing at fixed intervals, and the machinery had been installed by their vendee on his plantation, end the plantation, with the machinery on it, hed been subsequently .mortgaged to the defendant, and the defendant had foreclosed his mortgage and bought the plantation, including the machinery. Plaintiffs contended that their sale of ths machinery had been conditional upon payment of the price, and that the price hsd never been paid, and that consequently they had continued to be Owners. The contract of the pilota plaintiff with their vendee recited that the vendee owed them certain notes given for the purohs.se price of the mochinery, and th-'t to secure the payment of the notes the vendee put the machinery in the hands of a trustee named in the oontrs.ot, and that in case of default on any one of the notes, then all the unpaid notes v/3re to become exigible, end that the trustee should sell the maohinery, and with the price thus obtained should pay the notes and give the vendee any balance that might remain. Said the court: "The contraot isa present sale intended to be end actually accompanied by possession on the part of the purchaser.*** It is impossible for a contract to be at- one and the same time a contract of entirely different and conflicting characteristics. *** It was beyond the power of plaintiffs to make a contract of absolute sale of the maohinery, and withdraw from suoh sale the effects fixed and flowing from it by virtue of the laví itself."

At page 163, "The essentials of a sale are: A thing, the property in which ie transferred fro/., the seller to tb® buyer; end a price in monev paid or promised. Benj. on Sales, p. 2 Civil Code Art. 3429. It rollows from this fchst to suppose a sale without a transfer of the property in the thing which forms the object of the saieüe simply to suppose an impossibility. Either, therefore, the ownership of this shovel w?..3 transferred to Hoyt, and the stipulation of continued ownership must be disregarded, or else there was no 3a.le made to him. The latter supposition is lnadmissable: because not only the KikaKxiims allegation is that there was a sale made, but the plaintiff company has in its pocket a pert of the price, and is not offering to restore it."

Civil Code, Art. 3363. The privilege of the vendor on movables sold by him, whicn are still in the possession of the vendee, yields to that of tne owner of the house or farm wnich they serve to furnish or supply, for his rent3. itocsisidxxySxs ftps See Art. 3360 Civil Code.

■tie ihaxsl are therefore of the opinion that the inter venors 3pld to William Flicker, the slicing raachiner seised by the piaintiif in this ce.se; that the consideration, price, delivery and everything in reference thereto shows that fr®* arid that subsequently Flicker transferred said property to tne defendant in this case. The defendant evidently left the ‘State, without paying either for the machine or the rent and plaintiff acquired the notes sued on and stands today with the transfers the notes to nim, to.vsüher with the lei^e, os the rightful ownn-r. nnd is entitled to the lcndlord* s lien and privilege on the property seized.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment in favor of plaintiff, against defendant Edward Challlct, in the stun of §300.00, with legal interest from judicial demand, until paid, with recognitifcú of plaintiffs lien and privilege on the contents of' the leased premises he affirmed, end that that portion of the judgment vihich excepts pls.intiff right to the sale of the united States Siloing Machine, and maintains intervener1s right thereto, is annulled, avoided and reversed, and the judgment herein rendered for plaintiff, include the United States Slicing Machine-, together with all the other effects seized in this cese; thet the intervention end third opposition herein filed by the United States Slicing Machine Company be dismissed at their costs, and they together with the defendant be condemned to pay costs of both Courts.

-Judgment affirmed in part and xsfxx reversed in part-  