
    No. 10,593.
    J. D. Peet & Co. vs. Adolph Meyer.
    1. An agreement between three parties that they will join in a pool with a fourth party then absent, to purchase 10,000 bales of future cottons, if such fourth party shall agree thereto, operates a mere proposition to said party, which any one of the proposers may withdraw, cither before acceptance or immediately after receiving notice of acceptance.
    2. Mven if one of the proposers bo authorized to conclude the agreement on ac- . eeptanco hy the party to whom the proposition is made, yet such an agreement has no executory force hy reason of tlio entire indeterminateness of the object.
    3. All the proposers arc entitled to notice of the completion of the agreement, and to a voice in settling and ascertaining the details of the purchase, such as the months which arc to be bought, the prices to be paid, the broker to be selected, the party tobe selected as head of the pool authorized to receive notices, and to direct the operation, etc.
    
      d. When one of the proposers lias had no notice that the proposition had over been accepted or that the futures have boon bought until a month afterward, when the transaction has been closed out at a heavy loss, and when the other parties ¡have settled all the details and made the purchase without notice to or consultation with him, he can not he held bound by such loss.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
    
      Harry H. Hall for Plaintiffs and Appellants:
    l. “Good faith in a contract is always presumed; and the court will believe that the imrties understood each other.” 13 La. 2of, Nal vs. Taylor.
    
      ‘L Ailirmativo testimony will prevail over that which is negative. Story vs. Ins. Co., 37 An. 255.
    O. O. 2021 (2016): “ Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the condition happen, it is a suspensive condition.” C. N. 1168.
    C. C. 2028 (21.23): “ The contract of which the condition forms a part is, like all others, complete by the assent of tlio parties; the obligee has a right of which the obligor can not deprive him; its exercise is only suspended, or may be defeated, according to the nature of the condition.” C. O. 2038 (2033): “.When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken when the time has expired without the event having taken place. If there be no time fixed the condition may always be .performed, and it is not considered as broken until it becomes certain that the event may not happen.” Vide O. N. 1176.
    C. C. 2041 (2036): “The condition being complied with, has a retrospective effect to the day that the engagement was contracted.” V. C. N. 1179; V. 33 An. 463; 38 An. 336.
    C. C. 2043 (2038): “The obligation contracted on a suspensive condition is that which depends either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.”
    In the former case the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day in which it was contracted, but it can not be enforced until the event be known.” V. O. 1ST. 1180.
    4. In the instant case the execution of the authorization followed immediately upon the giving of it, but so fixed are the rights of the parties, by law, that nothing short of a putting in mora could have terminated the authority until so acted upon.”
    “Until the dissolution of a resolutory condition is demanded judicially, for non-performance, the obligor has the right to comply with his part of the contract.” Gayden vs. ltailroad, 39 An. 269.
    “ Where no time is fixed in the contract for the performance of the condition, and the party lias not been put in default, it may still be performed.” Hall vs. Lorenz, 3 An. 274.
    Kor was any express notification of the acceptance of the order necessary. “ A pollicitation, by the acceptance of the party to whom it is made, ripens into a perfect contract. If A proposes to 15 to take charge of his plantation, as overseer, 15, by taking charge of it, evidences his assent to the terms.” Seal vs. Erwin, 2 X. S.245.
    A mere promise to sell when certain conditions arc complied with, creates an obligation which may be enforced by an action to compel specific performance, or for the recovery of damages. Knox vs. Payne, 13 An. 361.
    “ Suivant Particle 1881, l’obligation contractée sous un condition suspensive est celle qui depend ou d’un événement futur et incertain, ou ’dun événement actuellement arrive, mais encore inconnu des parties. * * * Dans lc premier cas anssi elle a son effet du jour ou elle a été contractée, puisque la condition accomplie a un effet rétroactif au jour ou ¡’engagement a été formé (Art. 1179); seulemént l’obligation est en susjwns jusqu’a ce que l’événement soit arrive. * * * * Dans l’obligation contractee sons une condition suspendue et taut que la condition n’est pointencorc accompli il n’y a point encore de droit de eréance acquis point de droit ciopropriété transmis il n’y a qu’une simple espérancc, tanturn s}jes debitum iri. Section 3 Instit., de verbo, olig. Mais un eséprance qui ne peut Stre detruito que d’un commun accord. Et aprés l’accoinplissement de la condition, les parties .sont ii regard Pune de Pautre commesi le contratavaitété fait purement et simplement.” Duranton 11, Ko. 272.
    And to emphasize this right our Louisiana Code has Article 2028 (2023), which •does not exist in the Code Kapoleon.
    
      
      T. J. ¿femmes & Legendre for Defendant and Appellee:
    1. This case, in tlio main, turns on a question of fact: Did Gen. Meyer become a member of a pool to purchase «10,000 bales of cotton futures to bull the market?
    In the interpretation of a contract it is the common intent — that is to say, the intention of all — that is to be sought for; for if there is a difference in this intent there is no common consent, and consequently no contract. O. C., Art 1945.
    3. The alleged pool or combination is void as against public policy. 14 An. 1GS.
    4. The court will notice the illegality without plea if it appear in the evidence 7 Wall. 558.
   The opinion of the court was delivered by

Fennbr, J.

The plaintiffs, who are brokers, sue the defendant for $8181.91 as his share of a loss on 6200 bales of future cotton, which they allege were purchased by them for the joint account of Adolph Meyer, Carpenter & Dicks, Kaufman & Runge and T. L. Airey. They aver that the order was given to them by J. N. Carpenter, who informed them that he was authorized by said partners to give the. same; and they further allege that he was thereunto duly authorized by the defendant, Meyer. All the parties admit Carpenter’s authority to bind them except Meyer, who denies that he ever' authorized such purchase for his account.

Of course plaintiffs carry the burden of clearly proving that Meyer authorized or ratified the purchase; and without full and satisfactory proof on this subject they can not recover.

We have weighed the evidence with care and with due consideration for the high character of the witnesses, all of whom must be treated as intending to tell the truth, in absence of irreconcilable inconsistency between their statements.

We find the following to be the pertinent facts:

1. It must be taken as established by the clear preponderance of' the testimony that it ivas agreed between Airey, Fraussen (representing Kaufman & Runge) and Meyer that they would go into a pool to buy 10,000 bales of future cotton, each of them taking 2500 bales, provided Carpenter would go in with them, taking the other 2500 bales. Meyer denies that he entered into such agreement; but the affirmative testimony of Airey and Fraussen must overbear his. negation, which may well result from a deficiency of recollection, the more natural as his ignorance of further proceedings in the. transaction removed all motive for impressing the conversation on his memory.

2. Carpenter was not present when this agreement was made; but Airey saw him shortly afterward out of the presence of Meyer, and told him of the agreement between himself, Eraussen and Meyer, and asked Mm to go in with them. Carpenter consented, and, with Airey’s approval, immediately gave the order to Peet & Oo. to buy the futures for the account of the four parties, naming them.

3. Peet & Co. filled the order to the extent of 6200 bales, entering the transaction in the name of J. D. Carpenter & Co. as head of the pool (as such combinations are termed), but with a memorandum of the parties composing the pool, in which, however, the name of Victor Meyer was erroneously entered instead of that of Adolph Meyer.

4. The rules of the Cotton Exchange require that notice in writing shall be given by the broker making such transactions to the party for whom he acts, during the day on which the purchase or sale is made. Peet & Co. gave this notice to Carpenter only as head of the pool. The evidence is conflicting as to whether, under the custom of the Exchange, such notice is sufficient, or whether notice is required to be given.to each member of the pool when their names have been given.

5. We are bound to find, as a proven fact in the case, that Meyer was never notified that Carpenter had consented to go into the proposed pool, and never knew that any purchase had been made in execution of the same until a month afterward, when the transaction had been closed out at the enormous loss herein claimed. As this is the vital and pivotal point in the case, we have examined the testimony on the subject with great care. Airey, Fraussen and Carpenter knew of all the proceedings, and they seem to take it for granted that Meyer also was duly informed. But Meyer positively denies that he knew anything about them; and there is literally nothing to contradict him. He was not present when Carpenter was consulted and consented to go into the pool. He was not present when Carpenter gave the order. Peet & Co. never gave any notice to Meyer personally, but only to Carpenter; and Carpenter does not pretend to have communicated the same to Meyer.

Peet, his partner, Ellis, Airey, Fraussen and Carpenter have testified, and not one of them states that he ever, directly or indirectly, communicated to Meyer personally the facts that the pool had been compléted and the purchase made. No other persons were interested in the matter or personally knew anything about it; and if Meyer was not present when these transactions took place, and was not notified thereof by any of these parties, how else should he have received the information, and what warrant have we for disregarding his positive statement that he knew nothing of them? Much stress is laid on certain statements furnished by Peet & Co. about the time of closing out the transaction, as going to establish defendant’s knowledge, or, at least, his ratification of it, and we have considered them very carefully. The first of these is a letter, dated July 12, from plaintiffs addressed to Victor Meyer, Esq., stating: “We have made transfer to your account of the following contracts: Your one-fourth interest in account Carpenter & Co.,” etc. This letter was received at the office of V. & A. Meyer & Co., and was opened by defendant. How can such a notice be construed as informing Adolph Meyer that he was held as having an interest in such a contract? He knew that his brother had been on the high seas at the date mentioned, and contented himself with directing an examination to see whether there was any record in the house of such a transaction, and, on finding none, he telegraphed to his brother in Europe, and received a reply denying that he had made such a deal. On July 15 he wrote to Peet & Co., informing them of these facts, and of the mistake they had made. On July 13 another letter was received from Peet & Oo. addressed to the firm of V. & A. Meyer & Oo., saying: “The difference between our contracts with your New York house and those held for our senior there, and cotton for your account with us, shows debit against you for $8500, for which please send us your cheek.” This letter obviously refers on its face only to firm transactions, and was a call for margins.. Defendant promptly sent, the check called for. It turns out that this margin was made up almost entirely of the loss then shown on the Carpenter & Co. transaction, and the payment is strenuously urged as conclusive proof of defendant’s knowledge of that transaction and of his admission of liability therefor. But defendant explains that he was not posted as to the transactions between his New York house and plaintiffs; that he had perfect confidence in plaintiffs; that he knew that calls for margins required prompt action, and therefore he sent the check at once.

On the 14th of July, Peet & Oo. failed. . On the 15th the letter was written advising that Victor Meyer repudiated the transaction attributed to him.

This was followed by a claim, first, against the firm of V. & A. Meyer & Oo., and, finally, against the defendant personally, which is here in suit.

The explanations by defendant of his action are natural and reasonable, and must be accepted as honest. This action might operate as a make-weight in a case of conflicting evidence: but in face of defendant’s positive testimony that he had no notice and was absolutely ignorant of these transactions, and in absence of contradiction on this point by any witness, it is impossible for us to attribute to his conduct the construction contended for by plaintiff.

We are therefore bound to find as a fact in the case that Meyer had no notice of the completion of the pool by Carpenter’s consent, or of the purchase made in his name, until after a month had expired and the transaction had been closed out at the enormous loss claimed.

Under these facts, can Meyer be held? After reading and rereading the testimony of Messrs. Airey and Fraussen, the utmost scope that can be given to the agreement between them and Meyer is an agreement between themselves to enter into an agreement with Carpenter to buy 10,000 bales of futures on the joint account of all four, provided Carpenter would consent. In other words, Meyer authorized Airey and Fraussen to propose to Carpenter the formation of such a contract. Airey and Fraussen were not bound to make the proposition. Either of them might have abandoned the scheme the moment they parted from Meyer. The only authority given to them by Meyer was to propose such an agreement to Carpenter. When Carpenter consented, Meyer was entitled to notice thereof before any further proceedings were taken. Article 1800, O. 0., provides: “The contract consisting of 'the proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he who proposes should before that consent is given change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.” Article 1801 says: The party proposing shall be presumed to continue in the intention which his proposal expressed if, on receiving the unqualified consent of him to whom the proposition is made, he do not signify the change of his intention.”

From these articles it follows that Meyer had the right to recede from his proposition, even after acceptance if, on receiving notice of acceptance, he promptly asserted the right. But, conceding that the authority given to Airey and Fraussen authorized them to bind Meyer finally by the agreement with Carpenter, what was the nature of that agreement? Simply an agreement to buy together 10,000 bales of futures. It is evident that such an agreement could have no executory force by reason of the entire uncertainty in the object of the contract.

Anything more indefinite and incomplete than an agreement to buy 10,000 bales of futures could hardly be conceived. It does not settle the months for which the purchases are to be made, nor fix or limit the prices to be paid, nor designate the party in whose name the order is to be given, and who is to exercise the very important function of receiving notices, nor the broker to whom the order was to be given. In this case Carpenter exercised the very important power of stopping the purchases at 6200 bales.

Whence did Airy, Fraussen and Carpenter derive the right to settle all these matters by themselves without consulting or even notifying Meyer?

Moreover, under the rules of the Exchange, Meyer was undoubtedly entitled to notice of the purchase made for his account. This right is of inestimable importance. Admitting that, in cases of pools, notice to that member of the pool who gives the order is sufficient, this rests only the assumption that he has been authorized by the other members to act for them in giving the order and to receive such notices. But whence did Carpenter derive the right to act for Meyer in these important matters ? Meyer never authorized him to act as his agent in this transaction; never knew that he had acted as such; never knew that he had acted at all. Notice to Carpenter, not communicated to Meyer, was no notice to Meyer. The broker, who gives notice to the head of a pool, simply acts on the assumption that he is authorized to receive notice for his associates, and takes the risk of the correctness of that assumption. When it is shown, as in this case, that he was not so authorized by a party sought to be bound by such notice, such party can not be held in law, or under any custom.

If there is any class of dealings in which clear and unequivocal knowledge is essential to the parties engaged, it is certainly dealing in futures, in which ignorance deprives a party of the opportunity of self-protection and exposes him to ruinous losses. The estimable gentlemen who undertook to engage Meyer in this transaction have taken too much for granted, and have dealt rashly and without the exactitude required in such operations. Upon whomsoever the loss may fall, it can not be cast on Meyer under the evidence in this record; and we are bound to approve the ruling of the judge a quo.

Judgment affirmed.

Dissenting Opinion.

Watkins, J.

This suit is brought against the defendant for his proportionate share of a loss sustained on a purchase of 6200 bales of cotton for future delivery, for the account of a pool alleged to have been composed of J. N. Carpenter, B. Franssen, T. L. Airey and defendant.'

The plaintiffs claim that they, as brokers, members of the New Orleans Cotton'Exchange, operating under its rules, were employed as such to purchase not exceeding 10,000 bales of cotton, or so much thereof as would “sustain the market;” and on the 14th of June, 1887, they made the purchase of 6200 bales- of cotton for August and September deliveries. The purchase was made on the Exchange, and was thereafter held by plaintiffs for the account of Carpenter & Co. — by which name the pool is designated — until the 14th of July, 1887, when the transaction was closed out under the rules of the Exchange, at then prevailing prices, on account of the plaintiffs’ suspension, and with the resulting proportionate loss demanded.

All parties in interest admit their liability except the defendant, who disavows all responsibility.

The principal question to be determined is, whether or not the defendant became a member of the pool.

It appears from the record to be an undisputed fact that only a few moments after the alleged agreement was made, Col. Airey informed Carpenter of it, and he at onee assented to it. Immediately after being thus informed, and at the suggestion of Col. Airey, Carpenter employed plaintiffs to make the purchase. Having been advised of the object to be attained by the deal, i. e., to sustain and advance the market, they ceased purchasing after they had secured 6200 bales, as they considered the market had sufficiently recovered thereby. Of this no complaint is made by any one.

Of these purchases due notice was given Carpenter & Co. at the •office of Ool. Airey, as directed by J. N. Carpenter, when he requested the plaintiffs to negotiate the purchase. Memorandaweve furnished to the parties respectively on call. Carpenter, Airey and Franssen each received theirs, but defendant has no recollection of having received his, and says, after careful examination none could be found.

Quite a number of gentlemen of the Exchange were interrogated as witnesses, and a large majority of them testify that the plaintiffs’ course of dealing in this matter was in strict conformity to the customs, usages and rules of the Exchange in such matters, that is, in ■giving a notification to the party giving the order only, and, as the defendant furnished no countervailing evidence, I think this court is bound to accept the binding force of a clear preponderance of proof on this as on any other question.

During the time plaintiffs held the cotton for the account of the pool, they made demand of the respective members for margins on their contract, same having become necessary on account of a variation in the market. In response to this demand, the defendant at •once responded with his check, which was deposited with the plaintiffs as security against loss, the time of delivery not having arrived. On the faith of this deposit of margins the plaintiffs accounted to the brokers who effected the sale, and continued to hold the cotton for the joint account of the defendant and his associates. Hence •this is simply a suit by brokers against one of its principals for the reimbursement of money expended for Ms account in sustaining a contract they were carrying for a pool, of which he was a member. To my thinking it was evidently on the faith of the margins deposited that plaintiffs parted with their money and consented to, and continued to carry the contract.

This is the plaintiffs’ side of the case.

The position of the defendant is that there was no such agreement made as the plaintiffs contend, and not that there was a conditional agreement entered into, which was dependent upon the subsequent assent of Carpenter, of which assent he was entitled to notice before it could become complete as a contract binding on him.

The testimony of the three parties who were admittedly members ■of the Exchange, and participated in the conversation in the Ex-change, which is alleged to have resulted in the pool agreement, was taken, and from which we make the following extracts, viz:

T. L. Airey, one of the three gentlemen, says: “ On the 14th of June, 1887, Franssen, Adolph Meyer and myself were discussing ■cotton and the course of the cotton market, upon the floor of the Cotton Exchange, and I made the remark, If we make a pool of 10.000 bales of cotton, we can check this decline and probably put the market up.’ We all had large interests in sustaining prices. I said I was willing to take 2500 bales. Franssen said, ‘ I will take 2500 bales.’ Adolph Meyer said, I will take 2500.’ Carpenter was not in the Exchange at the moment. I said, I am satisfied that Carpenter will take 2500 bales.’ Within a moment from the time I spoke, Carpenter came in. I walked up to him and told him what we had done. I said that Adolph Meyer had taken 2600; I the same; Frawssen the same, and (I) asked him if he would take the 2500. He said, ‘ Of course I will do it.’ ” (Italics mine.)

Again he says: “ While we were talking the door of the Exchange ■opened, and Carpenter appeared. When I left Meyer and Franssen ■to go to Carpenter, I mentioned to them, 1 There is Carpenter now.’ ” {Italics mine.)

This is a clear, concise statement of fact. Airey speaks in no ■doubtful or equivocal terms. He says: “Adolph Meyer said I will take 2500.” He says that he told Carpenter “ what we had done,” and “that Adolph Meyer had taken 2500.”

During the pendency of the suit the testimony of Franssen was taken under commission in a distant State, and he made the following statement, viz:

“ I was in conversation with Mr. Airey, and, as the market appeared unusually weak, I made the remark that the purchase of 10.000 bales would suffice to sustain the market considerably, and even cause an advance of five points at least. The suggestion was, thereupon made by Col. Airey to forma combination for the purchase of 10,000 bales, to which, Mr. Meyer and myself consented, provided ■they could induce Mr. Carpenter to take a one-fourth interest. So that each one of us participated to the extent of 2500 bales.”

Again he says:

“I am positive that Mr. Meyer gave his full assent to said transaction. I do not remember'the exact expression used, but the amount of our conversation was that he would take the quarter interest, if Mr. Airey, Mr. Carpenter and myself * * would take the other-three-quarters interest. Mr. Meyer spoke to me, as well as to Mr.. Airey, during the conversation which occurred in the New Orleans-Cotton Exchange, about 1 o’clock on the 14th of June, 1887.”

The statement of this witness is just as emphatic and as clear as-that of Airey. He says positively, that the defendant consented,, provided they could induce Carpenter to take one-fourth interest; ox-in other words, if Airey, Carpenter and he “would take the other-three-quarters interest.” To this they assented. On this theory all. subsequent negotiations and proceedings were conducted.

How does the defendant as witness meet this evidence ? To a\ pointed question propounded by his counsel he makes the following, reply, viz:

“ A. I remember a conversation with Col. Airey on that subject.. As far as my recollection goes, he asked me whether I thought a purchase of 10,000 bales would sustain the market, which was then, it appeared, in a somewhat uncertain condition; and I remember telling him I thought it would.

“Q,. Anything further?

“A. Nothing further,” etc. (Italics mixxe.)

During the course of his interrogation the following addtional! statement was made by the defendant, as witness, viz:

“ Q,. Do you undertake to say positively that you never gave such authority to Mr. Airey, as he has testified to here ?

“A. Ido. I do undertake to say positively that I have no recollection whatever of ever having given Mr. Airey any authority to enter, into such contract for me.”

Subsequently, when speaking of the demand made of him for the payment of the loss, he said:

“ I was rather surprised, because I was unconscious of any such transaction.”

Under ordinary rules of evidence, it appears to me quite evident that the clear preponderance of proof is in. favor of the existence of the pool agreement on the basis of one-fourth to each of the four parties named. The defendant may have forgotten the agreement, in the course of the multifarious transactions in which he was engaged at the time. But, in construing evidence, courts are bound to give-adhesion to the preponderance of testimony where witnesses appear equally trustworthy, and make contradictory statements.

But there is another circumstance, which is, to my mind, of great weight, in so far as plaintiffs are concerned, in interpreting the agreement of the parties, or rather in determining what the agreement was, and who were parties to it.

And that circumstance is that of the defendant putting up $8500 in margins on the 13th of July on the plaintiffs’ demand.

The proof is, that on the 12th of July, plaintiffs notified Victor Meyer in writing that they had transferred to his account “one-fourth interest in account of Carpenter & Co.” in certain future contracts.

On the following day they demanded of V. & A. Meyer & Co. $8500, as margins on future contracts, and a cheek for same was at once furnished. The letter of the 13th, distinctly stated that the sum demanded was the difference between contracts in New York and those in New Orleans, in favor of plaintiffs. On the following day plaintiffs’ suspension occurred. Two days subsequently, for the first tíme, was an answer made by V. & A. Meyer & Co., disavowing the Carpenter & Co. transaction, and the letter of the 12th as a mistake. No explanation is offered of the check sent to the plaintiffs for margins, nor is any demand made for its return. During the months of June and July, Victor Meyer was in Europe, and of course knew nothing about the transactions; but the defendant was present, and was personally cognizant of them, and conducted the correspondence.

In addition to these facts, the testimony of one of the plaintiffs is worthy of consideration. During the course of his interrogation the following occurred, viz:

“ Q,. Can you state what proportion of the $8500 that you called for, you attributed to the Carpenter & Co. transaction — what proportion of that whole amount you called for, on account of the Carpenter & Co. transaction?

“A. The major part of it. I did recollect exactly what the difference in the market might have been.

“ Q. If there had been no such account, for what amount would you have called on V. & A. Meyer & Co. instead of $8500?

“A. We would not have called at all, because the account closely approximated, in the letter, $200 or $300.”

This evidence confirms the statement in the letter of the 12th of July, and the demand of the 13th of same month. And in the defendant’s telegram to Victor Meyer (on the faith of the answer to-which his letter of the 15th was written to plaintiffs), he says:

“ Peet has suspended. We are not interested.” Defendant attempts an explanation of his putting up the margins as he did by-stating that he was at the time quite busy, and had full confidence in the plaintiffs. But the accounts of plaintiffs with the Meyer firm in New York and New Orleans, were introduced in evidence by defendant ; and an examination of them discloses that after they were balanced, there was a debit against plaintiffs of $17,052.77; but plaintiffs’ account against defendant shows a credit of $8400 in their favor after charging themseírves with that debit. Hence, admitting all that is shown by the Meyer accounts, that firm is still in arrears in. the amount stated. The only difference there is between the accounts is in reference to the credits; and in this respect, those of the plaintiffs are undoubtedly correct. They 'tally with plaintiffs’ demand for margins, and are supported by other evidence in th& record. This evidence was sufficient warrant for plaintiffs’ course of' dealing. Whether the original agreement was complete and perfect between the parties or not, the acts and conduct of the defendant, under the circumstances recited, were, in my opinion, quite sufficient, to confirm the plaintiffs’ belief in Oarpenter’s representations in ordering the purchase, and to act on that belief in paying the price of the cotton, and in holding same'for the defendant and his associates. I think plaintiffs are entitled to recover, and that the judgment appealed from should be reversed. For these reasons I must respectfully dissent from the views entertained by the majority of the court.  