
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    SOUTHERN SCRAP MATERIAL COMPANY versus LIQUIDATING COMMISSIONERS, CARON-DELET CANAL & NAVIGATION COMPANY, In Liquidation, and NEW ORLEANS BREWING COMPANY.
    No. 7476.
   opinion

Max Blnkclsnlel. Judge.

_ Plaintiffs filed their suit in the Civil District Court 'mu July 24, 1912, claiming that they were the owners of a iooowotfvw \orane, consisting of one boom, one revolving, turn-table founds*» tlon (A) frame, weights and srtra boom, being a complete loooao» tive crane, except boiler and engine; and also the owner of the rails on which the said crane rested; that they purchased this property from A. Philbrick, liquidator of the co-partnership of Philbrick, Dunn 8> Company; that the property was on the premisos Of the new Orleans Brewing Company, oorner of Second and Claiborne streets. They further aver that the firing Company, acting oolla» sively with the liquidating Commissioners ’of the Carondelet Canal & navigation Company of Hew Orleans, In' liquidation, attempted to sell and deliver said property to the said liquidating Commisbion-ere of the Carondelet Canal & navigation-Company, though at the time the said Hew Orleans Brewing Company knew it had no title to the said property or any part thereof. They allege further that the liquidating Commissioners of the Canal Company, though repeated demands had been made for said property, refused to tarn same over to plaintiffs, the owners; contending, further^that the value of the said locomotive crane, as heretofore described, was worth the sum of J15CC.00, and that petitioners should have judgment decreeing them to be the owners of the above described property, end the property returned to them in the condition in which the same was when it was removed from the premises, or, in lieu thereof, that, in the alternative, plaintiffs have Judgment in solido against the Hew Orleans Brewing Company and the liquidating Commissi oners of the Carondclct Canal 8> Navigation Company of New Orleans in liquidation, in the sum of $1500.00, together with legal interest from January 14, 1915; that as the liquidating Commissioners of the Carondelet Canal & Navigation Company have refused to deliver to your petitioners the said dredge and appurtenances, and are using the same, though they are fully aware of the fact that plaintiffs were the true and lawful owners of said property, and that same has been in actual use by the said liquidating Commissi oners of the Canal Company since the 1st day of duly, 1915, and that said liquidating Commissioners know that ultimately Judgment will he rendered against them decreeing your petitioners to he the owners of the dredge and appurtenances, that said liquidating Commissioners stop to continuo to use the said dredge or appurtenances while thése proceedings are pending; that your petitioners are entitled to'collect rent for the use of said dredge, at the rate of -$EG.00 per month daring the time that said dredge is in use, from July 1, 1913, until final judgment. Averring further, that in the event said defendants, or either of them, should elect to return to your petitioners the said property unlawfully taken, then petitioners should he entitled to legal interest from January 14, 1913, upon $15CC.C0, the value of said property, up to sr.fl including the date on which the court should decree that said property should he returned to your petitioners.

ilaintiffs further contend that the acts of said defendants constitute a wilful and malicious interference and uni87/fui taking of your petitioners' property, without color of authority or title, and therefore petitioners shou'd have further Jud-ir.cr.t, hy reason of the wrongful sets of the defendants, in solide, for the further sum of $1,C00.0G, as punitory damages.

They pray for citation, and for judgment in accordance with the allegations of the petition.

On October 14, 1913, the liquidating Commissioners, for answer to tho petition, appear and deny the ownership of plaintiffs to the dredge in question, and, in the 4th article of the answer, assert and deny that there was a collusive understanding between the Hew Orleans Brewing Company and themselves as to any matter, and particularly as to the matter set up in the aforesaid specification; admit that they purchased from the Hew Orleans Brewing Company, on or about the £lst of February 1.913 - the sale being consummated on April 2, 1913, - certain second-hand material, to-wit: one turn-table, one boom, one set of wheels for the said turn-table, for which they paid the Brewing Company, on April 10, 1913, the slum and price óf Í100.00 cash, and especially averring that they purchased the aforesaid property in good faith, believing the same to bo the property of the Hew Orleans Brewing Company. In answer to the 5th specification of plaintiffs' petition, defendants deny that they bought from the Hew Orleans Brewing Company, or that they have ever used or had possession of, any of tho property described in the aforesaid specification by the plaintiffs, except only the property named in the 4th paragraph heretofore alluded to; and they aver that tho property admitted hy them in the 4th paragraph of this answer to have been so purchased was purchased hy them from tho Hew Orleans Brewing Company in good faith, for a valuable consideration, and has been incor-poaated as an integral part of the dredge-boat, and could not he separated from the property of defendants, and that plaintiffs are without right or power at law to cause them to so deliver up tho aforesaid property, or to do anything more than to pay the value of said property. They further contend that no demand was made upon them to deliver up to plaintiffs any part of said property previous to such property being incorporated as an integral part of said dredge-boat, and they deny plaintiffs' right to demand or cause suoh delivery to plaintiffs of said property. They further deny that twe property in question is worth -J1500.00, and aver that same, when purchased from the Hew Orleans Browing Company, was not worth more than the sum and price paid for it. to-mit, f 10(4^0.

Defendants deny, further, that plaintiffs are entitled, in view of the facts hereinbefore stated, to any judgment against them in any sun- whatever. They specifically deny that they were aware that plaintiffs were the true and lawful owners of the property described, but they admit that the property has been in use by them since before the first day of July, 1915, for the purposes mentioned, as a part of a dredge, and assert that defendants had a lawful right to use the said dredge without hindrance from eitZoer the plaintiffs or anybody else, "hey deny that plaintiffs are entitled to collect any rent for the use of said dredge; averring further and denying that they had unlawfully taken or were un~ lawfully using any property belonging to plaintiffs. They deny the value of the property and that plaintiffs are entitled to any judgment against them whatsoever. They deny also that there was a wilful or malicious interference or unlawful taking of plaintiffs' property without color of authority or title, or that plaintiffs are entitled to punitory damages, but aver, on tbe contrary, that they have acted in good faith.

TZney go on to recite, as heretofore stated, that in January or February of 1913 they required certain parts of machinery to complete a dredge-boat, which defendants proposed to construct for use in connection with defendants' property, known as the Carondelt Canal and Bayou Si. John, and having heard that the Dew Orleans brewing Company had such machinery, or parts of machinery, required by them, lying in an open lot at tbe corner of Claiborne and Second streets in this city, exposed to the wind ”;ather¡ apparently abandoned, and to ail intents and purposes notring more -v less than second-hand machinery, apparently taken from one of said Brewing Company's plants, and t’-at certain parts of same might be applied to their purposes, that in the month of February thev ¡.'fide a proposition to the Dew Orleans Brewing Company for the purcZoase of the property described, and subsequently bought same, as stated, for $100.00, from the Dew Orleans Brew-lug Company* and paid for the same; that subsequently, about the 5th of liar eh, 1913, before they had removed the said property from the lot at Second and Claiborne streets, plaintiffs having notified the brewing Company that- they had bought the said property, the said Brewing Company requested the defendants not to remove the said machinery until they could have the matter- straightened out; that on April 2nd. of the same year, having received a letter dated that day, with a bill attached for the $LGO.00 covering the purchase price-, they paid the same, and. therefore considered and believed and assert that their title was absolute, so far r.B they were concerned.

They pray that if any judgment be rendered in this case against them, that they call the Hew Orleans Brewing Company in warranty to defend any actions or suits, and that whatever judgment be rendered against them be paid by the Browing Company.

The Hew Orleans Brewing Company, on October 16, 1913, -after excepting to the petition as being too vague, general and indefinite to enable then to answer, - which exception was overruled, answered, denying all the allegations of plaintiffs' petition, in like manner as did the liquidating Commissioners of the Canal 3b navigation Company, asserting, amongst other things, that the property consisted of a lot of junk vihioh fhilbrick & Bunn, or some party representing them, placed upon the lot belonging to defendants At the corner of Claiborne and Second streets, in this city, temporarily and purely at the sufferance of -the defendants, and for the use of which said parties agreed to pay the Brewing Company the sum of $2.00 per month rent, and did pay up to and inclusive of August 9, 1909, but since that date nothing has been paid on account thereof, although defendants endeavored to collect- same, until they lost sight of ail the parties in interest. They allege further that under the law they had a’lessor's lien and privilege, and right of detention and pledge upon the said junk, but that the value of It was such that a resort to court prooeed-ings-to sell same under provisional seizure would have teen pro-hititive in cost, and would not have availed either the defendants as the lessors of said property or the owners at the time, and therefore defendants had a disinterested expert to appraise said property, hy personal inspection, and the report was that the same, at maximum, was worth possibly $100.00; that upon the strength of this report, and not having at the time heard from the owners of the junk, they sold to the C¡mal Company the property in question for-the price- and sum of $100.00, which was a fair and true -value, and which they intended to hold as an off-set to their claim for the use of the premises since August 9, 1909, at the rate of $£.00 per month, and to tender to said owners, should they ever appear thereafter, the difference in cash; that there was nothing hidden or clandestine in the matter, tut the entire transaction was detailed to the liquidating Commissioners of the Carondeiet Canal & navigation Company, and that defendants have always teen willing to make a just, true and equitable settlement with the owners of said junk whenever they should appear, They deny that the Southern Scrap Material Company, plaintiffs, ever bought from the owners the property in question, to their knowledge, or had ever made known to them that they were contemplating a purchase, or at any time attempted to obtain delivery of the property in question; hut that plaintiffs waited until after the property was removed from the premises and the lien of respondents for rental was extinguished hy prescription before plaintiffs attempted to take any action. They aver that plaintiffs then instituted the present suit for an inflated amount, exceeding twenty-five times the value of the property herein sued for, and attempted thereby to obtain a better legal title than their vendor had; - that plaintiffs had ample opportunity to ascertain the true facts, arid defendants allege that they did know the true facts, hut if they did not they were guilty of the grossest laches and negligenoe in not having ascertained same, in not attempting to remove the property from the premises, and in not apprising either the defendants or the liquidating Commissioners of the Oarondelet Canal & navigation Company of their purchase of saici property,, until, hy acts which they superinduced, they a’t your respondents and the Oarondelet Canal Tt navigation Company in a position which they would net otherwise have assumed; an." for all o? which said acts superinduced hy said plaintiffs defendants plead estoppel.

As in all controversies of a similar character, much testimony was taien, pro and eon, particularly in reference to the value of the dredge in question. It would he useless and idle to enter into details of what different witnesses for and against have testified to in this ease, which has been in court now since 1913.

She plaintiffs have foregone their suit for rent and punitory damages, and insist no¶ that $1600.00 is the amount that they should have judgment for in this case. Several of their witnesses, including Diefenthal, the vice-president of the corporation, have sworn that *15CC.00 was a fair market price for what they contend the machinery was worth. They admit that they bought this machinery for ÍJ5C.00, and, having made a good bargain, as they had a perfect legal right to do, that being a part of the business of the' plaintiff company, they see no reason why, under the lavi air.i the facts as they believe they have established, they should not obtain judgment for the amount claimed, borne of their witnesses have testified to the value as sted by IXr. Diefenthal; others again valued it at $1100.00 or $1200.00. The fact remains that tie lieu Orleans rrci.ing Company, who at one time had a lien and p.-ivil'-gc for rent, and Who sold it for $100.00 to the Carondslet Canal Ih-vigation Company, had it appraised, ur.S the highest value was fasm $75.00 to $100.Go.

It is established X.c-yond the peradveuturs of a doubt that this same property had been on a vacar;" lot at Scc-ond and Claiborne streets from about the year 1908,, osmosed to tbs weatliess1 during all this time, without any. claimants} that up to 1ÍS68 rent wss paid, tut from that time on to the present not O íc.íSj'f? of rent had ever been paid to the Hew Orleans Brewing Ofisspistijr for keeping this property on thoir lot. .Burthor then ttet, pSáí:®* tiffs bought, either in the latter part of Becembor 1913 cos ttj® beginning of January 191S, for $E0.00, and after purakaglngi, lusad" ing where the property was located, knowing that the Van Gp'h'*vn Brevfing Company were the owners of the lot in question,, they made known their ownership until the sal® of the property by t-h:Hew Orleans Brewing Company and its partial removal by th'’ p-we--chasers, the Carondelet Canal & Havigation Company. They kept quiet. Why? That is a question for their own determination. Xt certainly has not been disclosed in this case. But after the sale, and the first removal of a part of the machinery, then, and not until then, through a telephonic communication between an off!** cer of the plaintiff company and the Brewing Company, was ,the Brew® ing Company informed of the ownership by plaintiffs. And the moment the Brewing Company got this notice, after having sold to the Carondelet Canal & Havigation Company, as hereinbefore stated, they immediately notified the vendees of the notice that thoy had received from plaintiffs, and the vendees stopped the removal et ■once; and not until April following wa3 the deedge finally removed, when the Hew Orleans Brevdng Company sent their bill to the Bovigotloa Company for the price agreed upon, to-wit, JlOO.00.

Upon this statement of facts, as we assert them to be, us cannot conceive hov; it is possible, under any circumstances, for machinery of this character — call it what you will, Junk or otherwise — to have the value attempted to be put upon it by-plaintiffs and their witnesses in this cause.

His Honor, the Judge of the court a juo, a onrefej., oxporíi'no.;’, painstaking Judge, in his opinion, amongst other things, makes t-bir.! statement; "There was considerable evidence showing the vnlo.í'iiíi» of the property in question. It varies from that of ordinary te ¿1500.00. Of course, there is considerable doubt in the mind of the courT. whan I fix the amount, hut the court is compelled to fix a sum, which it will do at ¿600.00." And the learned judge gave a Judgment against both defendants, in sólido, for that sum.

April 1919.

'.Ve cannot ggree v.ith our learned brother to the sum fixed by him as the value of this# property. On the contrary, v.e believe that all parties in interest have fixed the price themselves; first, the plaintiffs, purchasing the sum of ¿50.00, and'then .the Hew Orleans Brewing Company, soiling it after an apprai3oment of the sum of ¿100.00. V/e can conceive of no better was of arriving at a determination of tho value than giving the highest estimate, which we fix at the sum of ¿100.00.

The judgment appealed from is therefore reversed it is now? ordered that there be judgment in favor of plaintiff and against both defendants in solido for the full sum of ;*>100. with legal interest from Judicial demand and the costs of the court a qua, plaintiff to pay all costs of appeál.

It is further ordered that if the Carondelet Canal Co pay this judgment it &ave■judgment for like amount against the Hew Orleans Brewing Company.

Hew Orleans La,  