
    CHARLES F. CLAIBORNE, JUDGE.
    MAUREPAS MILLING CO. vs OPDENWEYER - GEORGE LUMBER CO. Appellants.
    No. 7406.
    December 23rd. 1918.
   CHARLES F. CLAIBORNE. JUDGE.

This is a suit for the value of lumber alleged to -have bean appropriated by the defendant without authority.

The netition alleged that during the year 1913 and during January 1914 the nlaintiff delivered into the possession of the defendants, for their mutual convenience, at the lumber landing of the defendants, on the New Basiii Canal, 22871 feet of lumber which the defendants refuse to return or to account for; that the value of said limber is thirty dollars per thousand feet or a total of $677.13; the plaintiffs claim judgment for a return of said limber or in default thereof for its value. ^ ^

Defendants were cited October - 122K& - They pleaded the prescription of one year, and for answer denied all the allegations of the petition.

The exception was overruled and there was judgment in favor of the plaintiffs for $677.13 with legal interest from judicial 4emand.

Defendants have appealed. They have not favored us with any authority on their exception of prescription, nor have the plaintiffs. We presume the defendants rely upon Article 3536 (3501) of the Civil Code which reads as follows:

"The following actions are also orescribed by one year: x x x that for damages x x resulting from offenses or quasi-offenses".

In the case of the Liquidators of the Prudential Savings and Homestead Society No. 7169 of this Court we said:

■Where the unlairful act of one porson si»-ply damages another without resulting benefit to the wrongdoer there ie a simple tort, and the action for reparation is prescribed by one year.
Where the unlawful act of one person not only damages another but also enriches the wrongdoer, there arises an action both ax delicto and quasi tx con-tractu. and the action to recover the unlawful gain is barred only by the prescription of ten years*.

The Court cited many authorities in support of its opinions. The following seem to apply to this case. 11 A., 277; 19 A., 491; 23 A., 142; 32 A., 1091.

In Heirs of Burney, 47 A., 92, the Supreme Court said:

"Therefore in the action to annul, coupled with a demand for the price of the thing alienated, we do not think that the restitution demanded has any element of damages in it, and is not covered by the prescription of one year, x x x The obligation of defendants to restore the thing, the fruits and the revenues, or the price, in case they have alienated it, results not from an offence or quaai-offenSe but from a quasi-contract*.

There is no inconsistency.in claiming the thing or its value. 15 A., 293; 124 La., 680.

The case of Morgan's La. & T. R. Rd., 119 La., 392, was one by attachment to recover money fraudulently obtained, from the plaintiff. The defense was that no attachment could issue from obligations arising gjj delicto. The Court said the cause Of action was not one arising ex delicto. Said the Court, p. 404: "Thus, if a thief steals a watch or other article of property, he subjects himself to arrest, trial and punishment in the enforcement of the criminal laws of the State, but he likewise opens to the owner of the watch the right to have recourse to a civil action for its recovery, and that action ie not one ex delicto, x x x p. 408: If plaintiffs' money was unduly taken iron him as alleged by him, he had the choice of two remedies - pne ex delioto for dsemges, and one under the law authoriaing him to recover the money itself which had been taken from him. x x x Tha plaintiff in this euit is not seeking damages from the defendant. It is suing for the recovery of the precise amount of money belonging to it which it alleges was unduly received by tha defendant, xx The tendency of the Courta is to construe tha action as one on an implied contract when necessary to support the remedy*.

We are therefore of the opinion that the action in this case is not one arising from an "offense or quasi-offense", and that the prescription of one year does not apply.

The first question that presents itself upon the merits is. was the lumber claimed by plaintiff ever delivered into the possession of the defendants?

The established and uncontradicted facts of. the case are that f. J. Comerford had a contract to put up some revetments at Test End; the lumber to do the work was sold to him by the Maurepas Milling Company; it was to be del ivered to him on the landing of the defendants serving their yard; the defendants were under contract with Comerford to haul the lumber thus delivered upon their landing to the mill of the Reiman Manufacturing Company, where it was to be dove-tailed, and the defendants were then to haul the lumber to West End, to be there put in position; for all of which the defendants were to be paid by Comerford $2.00 per thousand.

Plaintiffs made three shipments and deliveries upon defendant's landing; the first two shipments were received by Comerford and hauled away, but he paid only for the first one; therefore the plaintiffs notified the defendants not to allow the removal of the third shipment until it had been paid for; and defendants notified Comerford who thereafter removed none of the lumber» It is also satisfactorily proven that the defendants sold all the dumber delivered Pn»- nof a part of it at the rate of $30.00 a thousand for $173.52.

Independently pf this proof, we held in the case of Underwood Typewriting Co. vs Vatter No. 7067 that where it ia proven that property, of plaintiff was at one time in the poaseaaion of the defendant, the burden was upon him to show what had become of it; thia^_defendanta have failed to 8how.

But we are not of the opinion that the plaintiffe can claim as ownera of the lumber. They had aold and delivered it to Comerford, and the defendant^ were in poaaeasian of it for his account. Plaintiffs had no right to ignore the sale and to resume ownership on the ground of non payment of the price» by merely notifying defendants of that fact and stopping further removal of the lumber. A sale is not rescinded of right by the mere failure to pay the price, in the absence of agreement of the parties, and this is not shown here.

C. C., 2046 (3041) "A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance".

Article 2561 (2539): "If the buyer does not pay the price, the seller may sue .for the dissolution of the sale". C. N. 1654.

A sale is not dissolved of right by the failure of pay the price; a suit and judicial action are necessary. 4 Fuzier - Hermann p 156 No. 121 - 43 Dalloz Rep. Leg No. 1258 1259, 1264 - 24 Laurent 341 - 2 Trop Vente No. 665 - 3 Baudry - Lac p 362 575, 38 Cyc 2021 35 Cyc 506

Howeve^the plaintiffs had a vendor's privilege upon the lumber sold by them for the price due to them, and to the extent of that price they have a cause of action against the defendants.

In the case of Roger vs Milliken No. 6805 we decided that where factors receive and sell sugar upon which an overseer has a privilege for salary superior to theirs, and appropriate the price to themselves, that they will be liable to pay the overseer the salary due to him up to the amount of the price received by them. 48 A., 686; 85 U. S., 644.

In Seelig vs Dumas, 48 A., 1494, the plaintiff had leased to Theresa Hamilton a lot of furniture; the defendant removed the furniture to his store, sold it and appropriated the proceeds. The Court said, p 1498:

"Granting that they evidenced an absolute sale as he declared them to have been, he (the defendant) knew that a large portion of the price which had been fixed between Theresa Hamilton and the plaintiff was still unpaid and stood secured as to payment by vendor's privilege, and he deliberately and intentionally with a view of benefitting himself and cutting off plaintiff's orivilege, purchased the furniture, and withdrew it from plaintiff's pursuit". Quoting 10 La., 121; 8 R., 428; 12 R., 20 - See also 6 A., 478; 3 A., 133; 13 A., 443; 22 A., 438; 52 A., 2147. 38 Cyc 2028

In Weil vs Lapeyre and Mechanics & Traders Insurance Co., 38 A., 306, 310, the Supreme Court recognized the right of á mortgage creditor to recover from a third person the value of mules removed from the plantation mortgaged by such third person who "sold them and pocketed their proceeds".

In the case of Hyman vs Hibernia Bank, 139 La., 411 the Supreme Court held that parties who had removed the contents of leased premises, sold them and anoronriated the oroceeds were liable to the payment of the lessor's nrivileged claim for rent on such contents, quoting a long line of authorities.

The cases in 3 A., 133 and 48 A., 686 were affirmed in 52 A., 2147, 2148 and in 107 La., 322. See also 47 A., 742; 117 La., 163; 131 La., 379.

In quoting the case of Hyman vs Hibernia Bank and others , we must not be understood to intimate that there was any conspiracy with any one or intentional wrong committed by the defendants, but only to confirm the principle we advanced that persons who sail the property of another or unon which another has a privilege must account for the price. 38 Cyc 2026 no 3-

The plaintiffs had sold the lumber to Comerford at $30 a thousand. That is the extent of their claim. We are satisfied that defendants sold it for as much, if not for more.

It is therefore ordered that the judgment herein in favor of the plaintiffs be reduced from Six Hundred and seventy-seven 13-100 dollars to Four Hundred and fifty one 42-100 dollars, and as thus amended, that it be affirmed, costs of appeal to be paid by plaintiffs.

December 23rd. 1918.  