
    (53 South. 432.)
    No. 17,951.
    SAINT v. MARTEL.
    (June 28, 1910.
    Rehearing Denied Oct. 31, 1910.)
    
      (Syllabus by the Court.)
    
    1. Appeal and Error (§ 1203*) — Trial (§ 387*) — Remand — Reopening Case for Further Evidence.
    Where an exception of no cause of action has been referred to, and tried with, the merits, and, after full hearing on the merits, the exception is overruled, it is proper for the judge to decide the case without reopening it for further evidence; and the same is true where, the exception having been sustained by the trial judge, his judgment is reversed, the exception overruled, and the case remanded, by this court, for further proceedings, according to law; and this (under Act No. 94 of 1898, § 3) whether the same judge be on the bench, when the case is remanded, or his successor.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1203;* Trial, Dec. Dig. § 387.*]
    2. Appeal and Error (§ 170*) — Review — Constitutional Questions.
    This court will not consider an attack upon the constitutionality of a statute, not made in the pleadings and not presented to the trial court, where there has been opportunity for such pleadings and presentation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1037; Dec. Dig. § 170.*]
    3. Principal and Agent (§ 78*) — -Duty of Agent to Account.
    One who is in possession of the property of another, somewhat in. the character of a negotiorum gestor, ought, when called on to account for it, to show some definite and controlling reason for not doing so. Dilatory tactics in such cases are not favored by the courts.
    [Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 78.*]
    4. Compromise and Settlement (§ 5*) — Existence of Agreement.
    A proposed agreement, for the arbitration, or compromise, of a claim in dispute, does not acquire the status of an agreement, where the main debtor fails to make himself a party to jt until after the expiration of the time within which, by the terms of such proposed agreement, he should have made settlement.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ KNIG; Dec. Dig. § 5.*]
    5. Compromise and Settlement (§ 5*) — Essentials of Agreement.
    The proposition that, when the holder of a claim has tried, for several years, to get some adjustment of it, and has, finally, sold it to another, who brings suit, a stipulation, in a proposed agreement for arbitration, or compromise, fixing the time within which the claim is to be settled, is not of the essence of such proposed agreement, is untenable. Reason and authority«alike are against it.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. § 5-*]
    6. Specific Performance (§ 80*) — Contracts Enforceable — Agreement to Arbitrate Future Differences.
    An agreement to refer, for final determination, differences to arise in the future to arbitrators, or amicable compounders, is not susceptible of specific enforcement, but is dependent for its execution on the will of the parties; since the court will not, in such cases, compel persons to appoint arbitrators or amicable compounders, or otherwise enforce agreements whereby persons undertake, with regard to matters to arise in the future, to close the doors of the courts upon themselves.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 214;* Dec. Dig. § 80.*]
    Provosty, J., dissenting in part.
    Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; W. P. Martin, Judge ad hoc.
    Action by Percy Saint against J. Sully Martel. , Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 122 La. 93, 47 South. 413; 126 La. 245, 52 South. 474.
    
      Edward N. Pugh, Farrar, Jonas, Golds-borough & Goldberg, and Story & Pugh, for appellant. . Percy Saint, Foster, Milling, Brian & Saal, and Hall & Monroe, for appellee.
   Statement of the Case.

MONROE, J.

Plaintiff instituted this suit in April, 1907, to recover from defendant certain property interests which he had purchased from J. B. Brown on March 14, 1907, and which Brown had purchased from defendant on October 26, 1903. Defendant filed an exception of no cause of action, which was referred to the merits, after which he set up: First, that plaintiff was endeavoring to enforce litigious rights which he had acquired in violation of a prohibitory law; and then certain other defenses. The case was heard, closed, and submitted, when defendant filed a petition praying that it be re.opened for the purpose of enabling him to introduce newly discovered evidence and, also, for the making of certain corrections in the testimony, as transcribed, and the court made the following order, or ruling:

• “The case is reopened for all purposes. I do not understand, now, that I am trying a mere motion to correct the record, but I am trying the case over again.”

Thereafter it was again submitted, but, a week later, it was again reopened, to allow defendant to make corrections in his testimony, and’ thereupon briefs were filed, and it- was submitted for the third time. On December 16, 1907, the court rendered judgment, reading, in part, as follows:

“The above * * * case having come on * * * first, for hearing upon the exception of no cause of action, and the said exception, after full hearing, having been referred, by the court, to the merits of the controversy, and the case having been regularly set down for trial and fully tried upon the merits, and submitted for determination, and coming on for decision upon the exception of no cause of action and upon the merits, it is, for the oral reasons assigned by the court, and for the written rea-, sons to be placed op file, and the law and the evidence sustaining the position and contention of the defendant in the. exception’of no cause of action, now decreed that the said exception of no cause of action be and is hereby sustained, and it is further * * * decreed that plaintiff’s action be dismissed and rejected, at his cost.”

From the judgment so rendered, plaintiff appéaled to this court, where it was held that “the case was not decided on the merits, and therefore, must be remanded,” and, the judgment appealed from being reversed and the exception overruled, it was “remanded for further proceedings according to law.” Saint v. Martel, 122 Da. 98, 47 South. 415. Counsel for plaintiff then moved to set it down for trial, to which defendant objected; but the court ordered that it be set down for November 17th, on which day defendant moved for a continuance, and the case was continued to November 27th, when, by consent, it was reassigned for December 10th. In the meanwhile, the term of office of the trial judge had expired, and, as his successor had been plaintiff’s attorney, he recused himself and, by consent, appointed the judge of the Twentieth district court to act in his stead. The case was then fixed for February 2, 1909; but on that day the judge ad hoc was informed that the litigants were in the way of effecting a compromise, and he returned to his own district. He was then informed that the compromise had not been effected, and he caused the case to be set down for trial on March 22d when defendant’s counsel objected to its consideration and moved that it be declared “discontinued” on the ground that a compromise had been effected. Counsel for plaintiff moved that defendant’s motion be stricken from the record, and the judge ad hoc referred the issues thus presented to the hearing on the merits and ordered the case to be fixed for April 12th, when defendant prayed for a new trial (of his motion), which prayer, together with an application for an appeal (from the order of reference to the merits), was denied, as was, also, an application to this court for writs of certiorari, prohibition, and mandamus. Saint v. Martel, 123 La. 815, 49 South. 582. Defendant then asked leave to file an amended answer, which was objected to, and allowed, subject to the objection, the judge stating that he would pass upon the question of defendant’s right to file the answer when the case should be again fixed. And the case was again fixed for July 1st, when plaintiff’s objection was sustained, on the grounds:

“First, that it (the supplemental answer offered by defendant) absolutely changed the issues. Secondly, that this case having already been tried, twice, on the merits, there is no good reason or necessity for trying it again; that, in overruling the exception of no cause of action (which had been referred to the merits by the lower court) and remanding the case, it was the very evident intention of the Supreme Court that the case should be decided by the lower court, and not tried again, for the third time, on the merits.”

The learned judge ad hoc then overruled defendant’s motion to “try the case de novo, on the petition, answer, and supplemental answer,” and proceeded to hear testimony on the question of compromise, vel non, after which that question was argued, with the merits, and there was judgment for plaintiff for $15,715.42, less $3,000 paid to J. B. Brown September 4, 1906, with 5 per cent, interest thereon from April 23, 1907, date of judicial demand, until paid; reserving to defendant the right to deduct, in his next settlement with plaintiff, any credits to which he may legally be entitled; rejecting, as in case of nonsuit, plaintiff’s demand for one-tenth of 66.666% shares of. the stock of the Houssiere-•Latreille Oil Company, issued to defendant, after the sale to Brown of the interest here sued for; and condemning defendant to pay all costs.

Other than as stated above, the ease disclosed by the record is as follows: In’ December, 1901, defendant, with D. Caffrey, Sr., and D. Caffrey, Jr., in consideration of services rendered by them, and to be rendered, in legal matters, and particularly in the then pending suit entitled “Corkran Oil & Development Co. v. Laurent Arnaudet et al.,” acquired, from Arnaudet, 'Houssiere, and Latreille, the defendants in that suit, a one-fifth interest in certain tracts of oil-bearing land (in what afterwards became known as the Jennings Oil Field, in the parish of Acadia), in the proportions of one half of said one-fifth (or one-tenth of the whole property) to defendant and the other half to the Messrs. Caffrey. The Corkran Company suit involved the title to the whole property, and there was a good deal of litigation besides, whereby defendant and the Messrs. Caffrey, whom he had associated with him, on behalf of their clients and in their own interest, successfully (as it turned out after several years of litigation) attempted to break certain oil leases, with which the property in question was incumbered, and money was, probably, required for the development of the oil, so that defendant found that he could not, or preferred not, to carry the entire load that he had taken on himself, and he began looking around for assistance. The first person who appears to have come to his aid was a friend by the name of Viguerie, to whom he sold one-fifth of the interest that he had acquired. The next person to whom he applied was J. B. Brown, to whom he sold one-tenth of that interest (that is to say, of the interest as originally acquired by him). Very shortly afterwards, the Houssiere and Latreillé tracts were put into a corporation, called Houssiere-Latreille Oil Company, with a nominal capital of $1,000,000, divided into 1,000,000 shares of $1 each, of which 100,000 shares (or one-tenth of the whole number) were assigned to defendant and a like' number to the Messrs. Caffrey, and they, with the two original owners of the land, constituted the body of the stockholders, held the corporate offices, and managed the corporation. The Arnaudet tract was handled separately, but the interests of the defendant and the Messrs. Caffrey,- in the whole, were managed by them, as a firm, under the name of Caffrey & Martel. The sale to Brown was made on October 26, 1903, by a private act, which describes the property, in part, as follows:

“One-tenth of whatever hope, title or interest * . * *. I have, or may have, in the following suits (giving the titles of a number of lawsuits, including that of the Corkran Company). The aforementioned interest being one-tenth of whatever interest' * * * I have or may have in the Jennings Oil Field, situated ini the parish of Acadia, * * * included in sections 47, 46, 41, 38 and 52. In addition, I bind and obligate myself to give to James B. Brown, the transferee herein, or said vendee, 2,500 shares in the Evangeline Oil Company, Ltd/, presided over by D. Caffrey, Jr., which company has been organized to operate in the aforesaid oil field, which company has the option of eight shares of land in the proved-up field aforesaid.”

As part of the property thus acquired by Brown was one-tenth of defendant’s interest in the Houssiere-Latreille Oil Company, there was issued to him, by defendant’s order, on December 28, 1903, a certificate for 10,000 ■ shares of that stock (full paid and nonassessable), which certificate bears the signature of Donelson Caffrey, president of the company, and of J. Sully Martel (defendant), its secretary. After the sales t to Viguerie and Brown (as before), the firm of Caffrey & Martel continued to manage the entire one-fifth interest which they had acquired in the Arnaudet-Houssiere-Latreille properties, including the oil company, and in the course of time, as oil gushers were “brought in,” that interest increased enormously in value, and Was in a condition to pay large dividends but for the uncertainty as to the ultimate result of the pending litigation, about the title to the land and about the effect of certain oil leases which the owners had made and which, with their associates, they were trying to break. A great deal of money had been taken in, however, and Brown seems to have conceived the idea that he was entitled to some of it, and to have written to defendant on the subject, as we find in the record a letter from defendant to him, of date June 12, 1906, in which the writer says:

“Tour letter was somewhat a surprise to me, after our conversation, which you stated to Caffrey was very satisfactory. All of the oil was on bond, executed by the Caffreys and myself, and, unless you agree to make yourself party principal to this bond, and party defendant in the suits, we can, hardly, give you a settlement, now. If you desire to comply with this, I would be only too glad to give you an accounting; otherwise, you will have to wait until the damage suits and the accounting for the oil for which I stand sponsor are terminated. All dividends will have to be postponed. We hope to be able to terminate all these suits as soon as possible, at which time you will find your share in bank, less the expenses.”

On September 4, 1906, Brown was given a check for $3,000, subject to the following condition, to wit:

“This amount is advanced by J. Sully Martel merely pending the litigation in suits of the Houssiere-Latreille Oil Co. v. Jennings-Heywood Oil Syndicate; J. Sully Martel v. Same; and Jennings-Heywood Oil Syndicate v. Houssiere-Latrefile Oil Co. And. in case it becomes necessary to refund this amount, the payee, James B. Brown, obligates himself to return the same, to meet such liabilities as may, or may have been, incurred therein.”

The quieting effect of this check appears to have lasted about six months, at the end of which time (on March 1, 1906) Brown wrote to defendant saying:

“I wrote you twice lately and am sorry you were not in writing humor to answer now from agreement I am interested with you in the oil interest and am in want of $5000 now on acct. believing what you told me you were going to make me rich I would like to spend some now as you are doing in so far as you are getting rich buying plantations etc. So please send me a check for above amt. that will be easier than writing if I do not hear from you I will be forced to put my claim in Mr. Milling’s hands to find out if possible how I stand with you and your interest hoping you will not force me to act and have trouble.
“Tours, [Signed] J. B. Brown.”

No check appears to have been sent, and somewhat later (March 14, 1907) Brown sold to plaintiff the interest acquired by him from Martel.

This suit, as we have seen, was instituted some five or six weeks after plaintiff’s purchase, a circumstance which the defendant appears greatly to resent. In his original petition, plaintiff alleges that the property acquired by him includes one-half of the Arnaudet tract, which has produced, and is producing, a great quantity of oil; that defendant has disposed of his (plaintiff’s) share thereof and should be held to account for it; that defendant has received from the sale of said oil (up to the date of the filing of the petition) $152,000, of which petitioner is entitled to $15,000; that petitioner has received from Brown the certificate for 10,000 shares of the stock of the Houssiere-Latreille Oil Company first issued; but that there was a subsequent issue to defendant of 66.666% shares, of which he is entitled to one-tenth. By supplemental petition (filed June 12,1907) he alleges that defendant has received $152,-600, as his share of the profits of the interest handled by Caffrey & Martel. Defendant admits the payment to Brown of the $3,000. He admits that he gave him the 10,-000 shares of stock, but alleges that it was by error, and that the number should have been 8,000. Admits that he sold Brown “one-twentieth of whatever” (interest) he had, at the time, in and to one-fifth interest which he owned in certain lawsuits, enumerated in the “deed attached to plaintiff’s petition,” for $2,500, and the further consideration stated in the deed. And alleges that the said cash consideration was less than half the value of the property sold; that Brown, in violation of his contract, disregarded the other consideration entirely; that he (defendant) owned, at the time, “but eight per cent, of the whole, or entire, interest”; that all the oil sold was bonded out; “that large sums of money are demanded for costs, for reimbursement, for damages,” etc. He prays that plaintiff’s demand be rejected, or, in the alternative, that “only the interest herein above enumerated be decreed to him, as it is clear that defendant could only have sold so much of the interest as he owned, at that time, and none of the interest he acquired subsequently, which was not intended or contemplated at the time of the said transfer.”

Plaintiff, testifying in his own behalf, said that Mr. J. G. Martel, defendant’s- son, and the secretary and manager of the accounting department of the firm of Caffrey & Martel and also of the Houssiere-Latreille Oil Company, had handed him a memorandum showing that defendant was debited, on the books of Caffrey & Martel, with $157,154.20, drawn out as his share of the profits -in that firm, and also showing that a dividend of' 13 per cent, had been declared on the stock of the Houssiere-Latreille Oil Company. The witness admitted that he had not used all of the memorandum handed him by the secretary because he only needed and wanted “to prove rem ipsam — that these amounts of money were used.” The testimony was objected to, and the court ruled that it was admissible only to prove that the statement had been handed to the witness by Martel and not to prove the statement, itself, or the truthfulness of the same. Subsequently Mr. J. G. Martel, the secretary, etc., testified that the $157,154.20, appearing on the statement, correctly represented the balance debited to defendant on the books of Caffrey & Martel, but that, upon the memorandum which he had handed plaintiff, there were two credit items also taken from those books. He also stated that the memorandum showed that dividends amounting to 13 per cent, had been declared on the stock of the Houssiere-Latreille Oil Company. Being asked to explain about the dividend, he said:

“A. Why the association, of Messrs. Caffrey and Martel and Messrs. Houssiere and Latreille, and the rights of that property, during the pendency of this suit — certain amounts were advanced the company by the_ officers of the company and Messrs. Houssiere and Latreille; there was a suit pending in the Supreme Court, at the time, and they were fearful that, if the decision was rendered against the company, these amounts of Mr. John M. Caffrey, the manager of the company, that they would be held liable for the same, and the others were much of the same opinion, so they requested that a meeting of the board of directors be held, and that these amounts be declared as dividends, in order that they might be protected in case the suit was decided against them, the company, so this was done, and that is the dividend transaction.”

The witness was asked, whether the company was then in a condition to declare a dividend, ■ and he answered (over plaintiff’s objection) that it was not. The witness was on the stand several times, and the amplest opportunity was afforded to either of the litigants, who might have been curious to know, to find out of what the two items of credit, to which he had referred, consisted, but no questions were asked on that subject. The defendant asked the question and received the answer following, to wit:

“Q. Mr. Martel, you have shown here by a statement that you have debited my account with a certain sum. Where did Caffrey & Martel derive the money from which these amounts have been advanced to them? A. Out of the proceeds of the oil produced from the Arnaudet tract, and the bulk of the oil is now involved in the accounting suit, which is now pending in the same court. This oil was bonded out by Messrs. Caffrey & Martel and D. Caffrey, Jr., and J. Sully Martel, rendering themselves personally liable on these bonds. This amount, that you speak of having been debited upon your account, is merely an amount advanced to you, and you are charged with it upon the corporation books, just like the ordinary debtor, for the reason that no profits have yet been declared by the firm of Caffrey & Martel, and they will not declare any until the litigation is completed.”

He said that, if the firm were to declare a dividend, it would amount to about $750,000, but that the bonds given by D. Caffrey, Jr., and defendant, for the release of oil sold by the firm, amount to $816,000.

Concerning the compromise, we find the facts to be as follows: When the judge ad hoc opened court on February 2, 1909, prepared to dispose of this case, he was informed that there was a prospect of a compromise, and he allowed the case to go over. The movement to effect the compromise' seems to have been initiated, and carried on so far as it went, largely through the efforts of D. Caffrey, Jr., who, with the estate of D. Caffrey, Sr., has an interest in plaintiff’s claim, and who discussed the matter with defendant, or his attorney, or both, and with plaintiff. The matter was under discussion during February 2d, 3d, and 4th, and a conclusion was reached on the day last mentioned, in the evening, in Caffrey’s office. On that evening there were assembled D. Caffrey, Jr., plaintiff, defendant’s attorney, and defendant’s son-in-law, Mr. Block, and they had, by that time, reduced the contemplated agreement to writing, in triplicate, and, after considerable discussion, the triplicates were signed by Saint, with the understanding that the others would sign as soon as practicable, and that the agreement should take effect from the date of the instrument, to wit, February 4, 1909.

There is some rather conflicting testimony in the case; but, as the matters to which it relates are, in the main immaterial to the issues to be decided, we pretermit its consideration. It is undisputed that Saint signed the proposed agreement, as above stated, on the evening of February 4th; that Viguerie signed the next day (February 5th); that Martel and Block went, that afternoon, together, by rail, to Jennings, where Block, at Martel’s request, presented the triplicates to John M. Caffrey, and asked him to sign them, for himself and for the estate of D. Caffrey, Sr., which he did, on the following morning; that Martel and Block remained in Jennings until the morning of February 6th, when Martel went, by an early train, to Crowley; that Block followed on a later train, and was joined, at Crowley, by Martel, who rode with him as far as Franklin, at which point he got off; that Block went on to New Orleans, in order to obtain the signature of D. Caffrey, Jr., arriving there the same day, Saturday, February 6th; that Martel arrived in New Orleans that evening with his family, and took his son, who was sick, to a sanatorium; that D. Caffrey, Jr., refused tu sign the-papers, because he did not consider himself a party to the contract; that Block left the papers with Mrs. Martel and returned to Franklin, on Monday, the 8th. Martel testifies that he remained in New Orleans until February 25th, much concerned about his son, who became critically ill, and his testimony is strongly corroborated as to a portion of the time. A very credible witness, however, says that he spoke to him, in Franklin, through the telephone, on or about the 20th. He himself says that on the 18th his son had improved in health and urged them (himself and the other members of the family) to attend the Momus hall; that he took his son out in a carriage on the 19th; that he and some members of his family attended the automobile races on the 20th; that on the 22d, in New Orleans, he and Caffrey had a settlement of the affairs of the firm of Caffrey & Martel; that on the 25th he returned to Franklin; and that, on the morning of the 26th, he signed the written agreement, the triplicates of which he, or his wife, had had' from the time that Block left them, on Monday, the 8th. He gives no other reason for ■not having signed before than that he was anxious about his son. On February 26th plaintiff addressed a letter to defendant as follows:

“Dear Sir: This is to inform you that the time limit for our oil matters and the suit pending for the recovery of certain oil interests in the Jennings Field according to agreement of date Feb. 4, 1909, has expired and no settlement has been had. I take this method of notifying you that if you do not make the settlement,, as agreed upon, by six o’clock of this day, the agreement will be at an end!”

' To the letter thus written, he received a reply, from defendant’s legal adviser, informing him that defendant had gone to New Orleans to bring his son home, and would be back next day. Saying also:

“I have the honor to inform you that, even under the agreement, the time limit has not expired, although time was not of the essence of said agreement, and we deny,' in toto, your proposed attempt to put an end to the agreement. We now notify you that we will hold you to its terms.”

After the foregoing correspondence, there were some conversations between plaintiff and defendant’s counsel and an unsuccessful attempt, on the part of the latter to bring about a business interview; but plaintiff testifies that he did not care to have such a meeting, and purposely avoided it On the evening of February 27th, defendant’s counsel sent plaintiff a statement of the settlement which had been made of the affairs of Caffrey & Martel, and another, of the proposed settlement to be made with him, showing a net cash balance due to plaintiff of $19,749.70, as also certain charges and deductions, which plaintiff, through his counsel, utterly repudiates. And on March 1st plaintiff received a letter informing him of defendant’s readiness to settle upon the basis of said statement.

Opinion.

On the Question of Reopening the Case.

After the trial judge had referred the exception of “no cause of action” to the merits, and had then heard all the testimony on the merits - that the litigants chose to offer, and had opened the case twice, after it had been submitted, and had finally taken it under advisement on briefs filed by both counsel, it is difficult to understand what he should have done save to dispose of it by a final judgment. " If he had overruled the exception, he would hardly have been expected, undér such circumstances, to have set the case down for hearing' again, and we can see no reason why it should have been so set down because the exception was overruled by this court, rather than- by the trial court, since the parties had had their day in court for the purposes of the:hearlng, and the judge ad hoc was in quite as good a position to give judgment as this court now is. Beyond that, when this court reversed the judgment of the trial court, and overruled the exception, it said “the case was not decided on the merits, and therefore must be remanded,” and it was “remanded for further proceedings according to law.” Saint v. Martel, 122 La. 98, 47 South. 415. It was remanded, not because it had not been heard on the merits,'but because it had not been decided on the merits, and the judge a quo correctly interpreted the opinion and decree, in holding that “further proceeding according to law” called for a judgment and not for reopening of a case that had already been heard and submitted and reopened twice, and finally submitted. Moreover, in the absence of specific ruling or instruction from this court to the contrary, the law requires that a case so' situated should be dealt with as the judge ad hoe dealt with this case. Act No. 94 of 1898, § 3.

The suggestion, made for the first time in the oral argument in this court, that the statute thus cited is unconstitutional, cannot be entertained. Defendant had the opportunity to raise the question in the district court, and, having failed to do so, cannot be heard to raise it here. Murphy v. Police Jury, 118 La. 401, 42 South. 979; Miller v. Thorpe, 4 Colo. App. 559, 36 Pac. 891; Curtwright v. Crow, 44 Mo. App. 563; Tompkins v. Augusta & K. R. Co., 21 S. C. 420; Chiniquy v. People, 78 Ill. 570; Hopper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487; Delaney v. Brett, 51 N. Y. 78; Elliott v. Oliver, 22 Or. 44, 29 Pac. 1; Bomar v. Asheville & S. R. Co., 30 S. C. 450, 9 S. E. 512; Gagnet v. City, 23 La. Ann. 207.

On the Merits.

It is heyond dispute that defendant acquired from Arnaudet, Houssiere, and Latreille one-half of one-fifth interest in their lands in the Jennings Oil Field, and that, at his repeated and urgent solicitation, Brown | finally agreed to buy one-tenth of the interest so acquired, which defendant then seemed to think, and so represented, was one-fifth, instead of one-half of one-fifth. Thus J. Clifford Brown (son of Jas. B. Brown), examined under commission, gives the following testimony:

“I am very familiar with the sale. I was there frequently when this sale was being talked of between Martel and Brown. Martel declared, at each and every meeting, at which I was present, what his interests or rights were in the Jennings Oil Field. Mr. Martel declared that two-fifths of the claim of Houssiere and Latreille were given him to represent them in a lawsuit, and was attorney, in other cases, Jules Clement and others. He then engaged D. Caffrey & Son to help him, giving them one half of the fee that was agreed upon between him and his clients and retaining the other half for himself. Mr. Martel made positive declarations to J, B. Brown, in my presence, that he owned one-fifth of whatever interest his clients had in the Jennings Oil Field, and stated that if J. B. Brown would buy one-tenth of whatever he had, or might have, in the Jennings Oil Field, and that, if he won the suit, he would make J. B. Brown a rich man. He repeated this very frequently, in my presence, going with me to Ivanhoe Plantation, where J. B, Brown resided. All of this was also stated in the presence of J. B. Brown, Martel, and myself. Mr. J. B. Brown, on no occasion, made any offer or inducement to J. Sully Miartel to buy an interest or right to said Jennings Oil Field. All the inducements and offers were made to J. B. Brown by Martel, himself; going out to J. B. Brown’s home, himself, personally, to malee such offers .and inducements. In fact, begged J. B. Brown to buy this interest. * . * -* J. Sully Martel made no reservations whatever at the time of the sale to J. B. Brown. * * * He declared what his proportion of the oil interest was, at the time of the sale to J. B. Brown. He declared it so that there might be no mistake. The proportion of the oil, he said, would be one-fifth of whatever amount his clients would receive.”

J. B. Brown, testifying ore tenus, said: That Martel persuaded him to buy the interest. That he did not seek Martel in the matter. That Martel sent him the act to sign.

“He said he and Mr. Caffrey would have half. Q. Do you mean by that that he and Mr. Caffrey would have half each? A. No; that was between the two of them. (Cross-examination by the defendant, himself.) Q. Mr. Brown, when you say half, do you mean that Caffrey owned half and I owned half? A. No, that you and Gaffrey had half and that your clients had the other half; that is what I understood about it.”

In his answer, defendant makes the following “admission,” which is unintelligible, in the light of the undisputed facts:

“He further admits that he sold to Mr. J. B. Brown an undivided one-twentieth of whatever he had at the time in and to one-fifth interest which he owned in certain lawsuits,” etc.

The instrument evidencing the sale to Brown, drawn up by defendant and sent to Brown for his signature, speaks for itself, and says:

“I, J. Sully Martel, * * * have this day sold one-tenth (Vio) of whatever hope, title or interest which I have, or may have, * * * the aforementioned interest being one-tenth of whatever interest I have, or may have, in the Jennings Oil Field * * * included in sections 47, 46, 41, 38 and 52,” etc.

Defendant nowhere denies that he represented to Brown that his interest was one-fifth, and nowhere asserts that he informed Brown that he had previously sold a portion of his interest as originally acquired. Beyond that, very shortly after the organization of the Houssiere-Latreille Oil Company, he caused to be issued to Brown a certificate for 10,000 shares of the stock of that company (signing the certificate in his capacity as secretary of the company), which amount represented one-tenth of his original share of that stock. In view of the facts thus stated, our conclusion is that the defense that plaintiff acquired only one-tenth of such interest as remained to defendant after deducting what he had sold to Viguerie originated in an afterthought and is wholly unsupported and untenable.

There is no serious attempt to sustain the allegation of the answer that the price paid by Brown was less than one-half of the value of the interest conveyed, and it is not easy, to see how such an attempt, if made, could affect the plaintiff now before the court.

The secretary and manager of the accounting department of the firm of Caffrey & Martel, and of the Houssiere-Latreille Oil, Company, testified, as we have seen, that defendant had drawn out of that firm the amount as represented' in plaintiff’s supplemental petition. He also testified that there appeared on defendant’s account two credit items, and defendant was afforded the opportunity of showing by the witness, or otherwise, as he thought proper ’ (the information being all in his possession), what those items amount to, and what bearing they may or might have in this case. So far as we can understand the situation, the most that can be said of them is that defendant, having drawn out $157,154.20, would be, by reason of said credits, entitled to draw a still further sum, in which, also, plaintiff would be interested to the extent of one-tenth. The secretary gave some further testimony, which we do not clearly understand, in regard to the dividend declared by the Houssiere-Latreille Oil Company, and other testimony, in regard to obligations assumed by defendant and the Caffreys, in bonding oil, which appears to us to be rather vague for the purposes of a suit of this character, in which it is admitted that the defendant is, and has been, for nearly seven years (reckoning from the present time), in possession of the property of another, without special authority and somewhat in the character of a negotiorum gestor, and that he has used, and, so far as we are informed, is using, that property as he pleased and as he pleases. Being now called on to account for it, he ought .to show some definite and controlling reason for not doing so; instead of which, he has resorted to all the dilatory tactics known to postpone the accounting, and we were informed by his counsel, in the oral argument, that he (defendant) was resisting plaintiff’s claim to the utmost of his ability. That there will be no danger of inflicting any injustice on defendant by affirming the judgment appealed from is made evident by the statement which his counsel sent to .plaintiff on the night of February 27th as the basis upon which he proposed to make a settlement; that is to say, upon the basis of plaintiff’s ownership of S per cent, instead of 10 per cent, of defendant’s original interest in the Jennings Oil Field, etc., and of defendant’s right to make certain deductions from the amount to which plaintiff would otherwise be entitled, since, even on that basis, defendant admits that the cash balance due plaintiff exceeds, by several thousands of dollars, the amount for which the judgment appealed from was given. And, if there is any error in the judgment here affirmed, it can be corrected under the reservation of defendant’s right to claim, in his future settlement with plaintiff, such credits as he may be entitled to.

In regard to the 66.666% Shares of stock of the Houssiere-Latreille Oil Company, in which plaintiff claims an interest, it appears that in April, 1903, Houssiere and Latreille (as the owners of the land," the title to which was at issue in the then pending suit of Corkran Oil & Development 'Company v. Arnaudet et al.) and Kenneth Baillio (a stockholder in the Corkran Oil Company), with the view to hedging against the eventual outcome of that suit, made an agreement, to the effect that, if plaintiff should win, Baillio would pay the others $5,000, and, if defendant should win, they would pay him a like amount.

In April, 1904, J. Sully Martel and D. Caffrey & Son, of the first part, and Houssiere and Latreille, of the second part, made an agreement whereby the parties of the first part assumed the obligation of the parties of the second part to Baillio; and also agreed that Houssiere and Latreille should “have the right, or personal use, of all the surface of the 455 acres of land in the Corkran grant now owned by the Houssiere-Latreille Oil Company,” subject to the right of the company to use the surface in all necessary exploitations for oil and minerals; and further agreed that they would “carry on, free of charge, any and all litigation resulting from the leases placed on said property by Messrs. Houssiere and Latreille * * * which are registered by the Houssiere-Latreille Oil Company.”

In consideration whereof, Houssiere and Latreille agreed to pay to said parties of the first part “one-fifth of the capital stock of the Houssiere & Latreille Oil Company,” and authorized the president and secretary to issue the stock, accordingly, which they did; the authority therefor and the issuance having been granted, and made, long after the sale to Brown, and for a different consideration from that for which the original issue of stock to Martel was made. If, however, Martel, at the time of the sale to Brown, owned, as he appears to have owned, a one-tenth interest in the surface rights on the 455 acres of land in question, and if he sold, as he appears to have sold, one-tenth of that interest to Brown, it is clear that he could not have disposed of the interest thus sold for a consideration inuring exclusively to himself, and that he owes an accounting in the matter. The value of the surface rights, as compared with the whole consideration given for the 66.666% shares of stock, is not, however, disclosed by the record, and the claim, with respect to the stock was therefore properly dismissed, as in case of non-suit.

The Alleged Compromise.

■ That which defendant calls a compromise, appears to us to have been merely a proposed agreement, which, if accepted by those whose acceptance of, or acquiescence in, its terms was contemplated, would have become an-agreement to submit to arbitration differences between plaintiff and defendant, to arise in the future, but which, having never been accepted, in accordance with its terms, by two of the parties contemplated, to wit, D. Oaffrey, Jr., and J. Sully Martel, never acquired the status of an agreement, and would not have been enforceable, if it had.

The instrument evidencing said proposition, or pro jet, of agreement, contains the following stipulations, to wit:

“Article 1. Within fifteen days, * * * there shall be a settlement of the affairs of Caffrey & Martel” (a firm which had been composed of D. Caffrey, Sr., D. Caffrey, Jr., and J. Sully Martel, and the interest in which, formerly belonging to D. Caffrey, Sr., was vested in his succession, represented by J. M. Caffrey, though in what capacity he was acting does not appear) “and partition of all the assets,” save the wells thereon and appurtenances thereto, the air and steam plants and other miscellaneous movable property, “which said properties, not partitioned, is owned and held, in indivisión, by the hereinafter named parties, in the following proportions: 50 per cent, to D. Caffrey, Jr., and estate of D. Caffrey, Sr.; 36 per cent to J. Sully Martel; 10 per cent, to Prank C. Viguerie ; and 4 per cent, to Percy Saint, transferee of J. B. Brown.
“Article 2. Within five days after the above settlement and partition, Martel shall make a full settlement with Viguerie and Saint; Viguerie is recognized as entitled to 20 per cent, and Saint to 8 per cent, of whatever may be received by the said J. Sully Martel, under the settlement and partition, as provided in article 1.
“Article 3. The 10,000 shares of stock * * * now in possession of Percy Saint, to be returned to the company and canceled and Martel to deliver to Saint 8,000 shares in its stead, and is to pay to said Percy Saint the accrued dividends which said 8,000 shares of stock have earned, up to date.” Saint being recognized as the owner of 8,000 shares and Viguerie of 20,000 shares (referring, always, to the stock of the Houssiere-Latreille Oil Company).
“Article 4. It is agreed and understood that J. Sully Martel shall pay, at his option, 6 per cent, interest on Prank C. Viguerie and Percy Saint’s pro rata of all such amounts as he may have withdrawn, in cash, in excess of his share, in the firm of Caffrey & Martel, or to pay to Percy Saint $1,500 and Prank C. Viguerie • — —
Article 6. Authorizes either of the parties, should he deem it to be his interest, “to appoint an auditor, to audit the accounts,” the expense to be borne by such party.
“Article 7. It is agreed and distinctly understood that any and all differences that may arise, of any nature or kind, whatsoever, between the parties to this agreement, and, especially, as to what assets, or profits, or business, of the firm of Caffrey & Martel, F. C. "Viguerie and Percy Saint are interested in, * * * shall be referred, at the request of any, or all, parties herein, to amicable compounders, for final determination.” " (Italics by the court).
“Article 8. At the time of the settlement provided for in article 2 a settlement shall be made with P. C. Viguerie and Percy Saint for whatever may have been withdrawn by J. Sully Martel from the funds of Caffrey & Martel, in excess of 36 per cent, interest therein subsequent to the dates of the sales by J. Sully Martel to P. C. Viguerie and J. B. Brown, and, in such settlement, J. Sully Martel shall account to P. G. Viguerie for 20 per cent, and to Percy Saint for 8 per cent, of the securities received by him, with interest paid him thereon, and for the same percentage of the cash, by him received, with interest as stipulated in article 4.”

It is not denied that it was the understanding that the proposed,agreement, when signed by the necessary parties, should take effect from the day of its date, February 4, 1909; and, from the prompt efforts of Martel to obtain the signatures of the Caffreys, taken in connection with his own failure to sign, it would appear, not only that he considered them necessary parties, but that he wanted to be certain of their consent to become parties before committing himself upon the subject. He testifies that his reason for wanting them to sign was that he might be assured of settling the affairs of Caffrey & Martel and, thereby, of being enabled to settle with Saint and Viguerie, according to the proposed agreement; which was natural enough, and indicated pretty clearly what his original expectation was, as also what must have been the original expectation of Saint, since they were, both of them, entirely dependent upon the settlement of the affairs of Caffrey & Martel for the settlement that they were to make; and the settlement of the affairs of Caffrey and Martel could not have been made, or forced, within 15 days, without the consent of the Caffreys. Thus it was that, after Saint and Viguerie had signed the papers, Martel, without signing them, himself, instructed his son-in-law, Block, to get the signatures of the Caffreys, and went with Block to Jennings, where J. M. Caffrey was to be found, as Block thought, to aid in getting the signature of that gentleman, as representing himself and the succession of his father, D. Caffrey, Sr., and on the same day that J. M. Caffrey signed, at Jennings, Martel met Block in New Orleans whither the latter' had gone to get the signature of D. Caffrey, Jr. Martel testifies that he did not go with Block, or meet him, to aid in getting the signatures; but it is conceded that Block was acting under his instructions, and it is immaterial whether he gave his personal assistance or not. D. Caffrey, Jr., declined to sign the proposed agreement, because, as he testifies, he did not consider that he was a party to it and had never understood that he was to sign it; and thereafter Martel held it in his possession, without signing it, from the 6th to the 26th of February, which last-mentioned day was the second day after the expiration of the time within which, under said proposed agreement, he was to have made a full settlement with Saint and Viguerie. The only reason that Martel gives for not signing before is that he was anxious about his son, but that could not have been the case on February 5th, when Viguerie signed, and when Martel and Block carried the papers to Jennings to^ get the signature of J. M. Caffrey, or on February 6th, when J. M. Caffrey signed, and Martel and Block were in Jennings together and rode together on the train from Crowley to Franklin; nor could it have been the case on February 18th, when defendant’s son had improved in condition and urged his' family to go to the Momus ball; nor on February 19th, when his son was able to go out driving; nor on February 20th, when defendant went to the automobile races; nor thereafter, since his son was convalescent. Without going into the question, then, of the value, as against the succession of I). Caffrey, Sr., of the signature of J. M. Caffrey (whose capacity does not appear), to the agreement for the partition of property in which the .succession had an interest and which purports to fix, or declare, the extent of its interest in other property, including valuable oil land, it is obvious that, without the other members of the firm, i. e., D. Caffrey, Jr., and Martel, there could have been no agreement that would bind anybody, for the settlement of the affairs of Caffrey & Martel; and, as D. Caffrey, Jr., never did consent to become a party to such an agreement, and as Martel consented only after the proposed agreement had, by its own prescription, expired,, it is equally obvious that there never was any such agreement, and that the very first condition of the projet, to wit, the settlement of the affairs of Caffrey & Martel, within 15 days, could never have been enforced. It is true that on February 22d there was what purports to be a settlement of those affairs; but it cannot be said to have been effected in the carrying out of the proposed agreement, since it was made on the third day after the expiration of the time therein specified. If it be said that that was immaterial, so long as the settlement between Martel and Saint was made within the time limit, as proposed, the answer is that we cannot be so sure of that. There is a stipulation in the proposed agreement to the effect that the settlement of the affairs of Caffrey & Mantel shall be made within 15 days from the 4th of February, and that the settlement between Martel and Saint shall be made within five days thereafter, and we are bound to presume that the interval of five days was allowed for some reason. As to Martel, it was, no doubt, to enable him to make up his account and prepare the statement upon the basis of which he would predicate his offer of a settlement. But article 4 of the proposed agreement authorizes either of the parties to “appoint an auditor to audit the account,” and article 7 provides for the arbitration of “any and all differences * * * of any nature or kind, whatsoever, * * * ” and, especially, as to what assets, or profits, or business, of the firm of Caffrey & Martel, F. C.' Viguerie and Percy Saint are “interested in,” so that, the five days’ delay, between the ascertainment of the interest of Martel, in the firm of Caffrey & Martel, and the time when he was to make the settlement with Saint, was likely to have been as valuable to Saint as to Martel. Let us say, however, that Saint had no interest in the matter, and that, so long as Martel made an offer to settle with him, within 20 days after the date of the proposed agreement, it was a matter that did not concern him when the affairs of Caffrey & Martel were settled, and we still find no improvement in the situation; for, not only did Martel not make such an offer to Saint,. within the 20 days, but he did not, within that time, make himself a party to the proposed agreement, under which said offer, or, rather, such settlement, was to have been made, not having affixed his signature thereto until the 21st day after the date of the instrument.

The proposition that, when the holder of a claim has tried, for several years, to get some adjustment of it, and has, finally, sold it to another, who has brought suit, a stipulation, in a proposed agreement for compromise, or arbitration, fixing the time within which the claim is to be settled, is not of essence of such proposed agreement, is untenable. Reason and authority, alike, are against it. Civ. Code, arts. 2038, 2047; Barrett v. Hard, 23 La. Ann. 712.

We find nothing in plaintiff’s letter of February 26th, or in the letters subsequently addressed to him by defendant’s counsel, or in their conversations, which in any wise affects the rights which plaintiff here asserts.

Moreover, and finally, our conclusion is that, had the proposed agreement acquired the status of an agreement, it would not have been susceptible of specific enforcement, but would have been dependent for its execution wholly upon the will of the parties, since it would have been,,in effect, an agreement to refer, for final determination, differences, to arise in the future, to arbitrators, to be appointed by the parties, and the courts will not compel persons to appoint arbitrators, nor will they otherwise enforce agreements whereby persons undertake, with regard to matters to arise in the future, to close the doors of the courts against themselves. Mirandona v. Burg, 49 La. Ann. 656, 21 South. 723; Gauche v. Metropolitan Bldg. Co., 125 La. 530, 51 South. 578; State ex rel. Watkins v. Land & Co., 106 La. 621, 31 South. 172, 87 Am. St. Rep. 309; Hamilton v. Home Ins. Co., 137 U. S. 370, 11 Sup. Ct. 133, 34 L. Ed. 708; Cyc. vol. 9, pp. 510, 511; A. & E. Enc. of Law, vol. 2, p. 570.

The judgment appealed from is, accordingly, affirmed.

PROVO STY, J., dissents in part.

NICHOLLS, J., takes no part in this case.  