
    Charles F. Claiborne Judge.
    CHARLES BAKER VS BELLE-CHASSE LAND CO.
    No. 7832
    November 8th, 1920.
   CHARLES BAKER VS BELLE-CHASSE LAND CO.

No. 7832

Appeal from Civil District Court, Hon. Fred D. King, Judge.

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit for an alleged conversion of property. The facts are as follows:

On June 28th, 1917, the defendant company sold to Goldstein a lot of scrap iron or junk lying on its plantation in Plaquemine Parish, for the price of $200 cash. On July 23d, 1917-, Goldstein sold the same to Richmond for a price apparently of $195, Richmond sold 18 tons of this junk a short time after for $19 a ton, and on September 18th, 1917, he testified he sold the remainder to Baker for $350. On December 27th, 191$, the defendant sold the same junk for $105 to one Willcom, who in turn sold to Glaser for $22j3^^>^_

The plajintiff^filed this kuit in February 1918; he alleged that the defendant had no right to sell this junk to Willcom: that it was his property,'having previously purchased the same from Richmond, as defendant wall knew? that the junk consisted of cut boilers and drums, sugar tanks, smoke stacks, one fly wheel, cog wheels and one steel shaft, wéighing in all seventy tons; "that at the time of said purchase he had an opportunity to sell said property at a sale price of $24.50 per ton"; and he prayed for judgnent for 70 times $24.50/or $1715.00.

Defendantidenied snv indebtedness to plaintiff; denied that the junk¡consistéd of,the items enumferated above, or that ■it weighed seventy tons, denied that it had the value placed upon it by the plaintiff; and denied that they knew that he had purchased from Richmond. Further answering defendant .averred».

"That on June 28th, 1917, it sold' to Max Richmond and M,Goldstein the scattered scrap iron on its planea-tion in Plaquemines Parish for the sous of $200500» with ure understanding and on the condition that same should be removed within sixty days and that after the exoiration of sixty days said vendee viould have no right, title, or interest therein; and that a few days before the expiration of said term defendant agreed to an extension of the term for removal, for sixty days additional; that within the said extended tern of renoval and- about forty days before the expiration thereof ssid l.'.ax Richmond cane to defendant's secretary and represented that he had an opportunity to sell the scrap iron, but could not do so without a written statement showing sane had been paid for; that in order to accomodate said Richmond defendant's secretary gave him the statement referred to in Article V of plaintiff's oetition, vjhich reads as follows:
"September 18tb, 1917.
To vihom it may concern:
This is to certify that we have received from I.;ax Richmond full payment for scrap iron sold to M. Goldstein and Kax Richmond".
"Signed" Belle-Ohasse Land, Co., Ltd.
B.S. Braswell, Secy-Treas."
"that about the same time, Plaintiff came to defendant's office and represented to its secretary that he ■.vas contemplating the purchase of said scrap iron and asked for verification of the representations of said Richmond that 'he had the right to sell same, and inquired about the aforesaid conditions of removal, that defendant explained to plaintiff the contract with said Richmond, the conditions v/ith reference to removal, and the extension of the tena, and discussed with plaintiff the approaching expiration of the extended tena for removal; and that if plaintiff accuired from said Richmond any interest in said scrap iron in good faith, which is denied, he accuired such interest with full knowledge of the limitation of Richmond's rights, and especially with full knowlSdge of the approaching expiration of the extended tern for renoval, and that, he accuired no greater rights than said Richmond had; that plaintiff nade no effort to remove the scrap iron within the term of renoval; that defendant never heard anything further from him, and never knew whether be had bought the scran iron or not, and that in order to get the scrap iron off of the place and out of the way, defendant, on the 27th day of December, sold the scrap iron to another party under the same conditions for $165, and granted a term of thirty days for its removal; that within the term of thirty days_ said last narty removed part of the iron, abandoning his right to the remainder which is still on the dace, and in the way and interfering Tfith defendant's efforts to clean it un".

There was judgment for nlaiitiff for $715.

In its reasons for judgment the Court said that Richmond had purchased from the defendant; that he had afterwards sold to plaintiff; that plaintiff acted upon the faith of the letter of the defendant dated September 18th, 1917 copied hereinabove; that the defendant had no right to sell to Wilkom without notice to Baker; that there were no less than 65 tons of junk; that Wilkon sold a part of the junk at $11 a ton, which fixed its value for the whole at $715.

Rr ora this judgnent the defendant has appealed.

On behalf of the defendant, B. S. Braswell, its Secretary-Treasurer, testified that the scrap iron on Belle-Chasse was sold to Richmond and Goldstein for $200,

"giving them 60 days within which to remove it , and if not removed to revert to the Company. Before those 60 days had exoired Mr.Richmond came to me and he said that he wanted more time; that he had trouble in getting laboir, he wanted more time Within which to remove it from the place, and we granted him 60 days more time, x x Before those 60 days had expired Mr. Richmond told me that he had been drafted into the array, and that he wanted to sell this iron to somebody else, and asked us if we would give him a receipt showing that 'he had paid for it, that he might show to anybody interested in the purchase, of it.
1 gave him this receint showing that he had paid for it. After that Ur. Baker came in and asked me about the scrap iron, if Richmond owned it. I told him that he did and that he had about 40 days within which to remove it; if he bought it that he would have to remove it within that time or it would revert to the Company. x x x He (Baker) said that he wanted to buy it, and we discussed the tine that he had. I told Ur. Baker at the tine that there was about 40 days in which to get it off of the property. x x '.?e sold the property a second time after we had sold it to Piclmond and Goldstein, because their time had expired over 60 days and the property belonged to us".

The capital of the Company is $200,000 and witness owns $2,000 of the stock. Ben Boudreaux, also for the defendant, testified that be v/as employed by the Belle Chasse Land Company as agent; that he 7/as the salesman of the junk; that Goldstein came in one day and offered $150 for the junk, and they finally agreed to sell it for $200; that hé had a memorandum of the sale which he had wade with Ur.Braswell; (the Court then told him he could not use it); that

"it was distinctly understood that be wa3 to remove it within 60 days";

L;r.Braswell

"it was old scran iron and he wanted to get rid of it, and that be wanted it removed within 60 days, that is as far as he remembered; Goldstein gave him $50, and he agreed to remove it in 60 days; and "if he didn't remove it, it would revert back to Ur.Braswell, the Belle-Chasse Land Company".

J. D.Barksdale is the President of the defendant Company; he was asked if kr.Braswell had ever consulted him about an extension on a sale of scrap iron; on objection to the question it- was ruled out; be said their purpose was to sell the scrap iron-'in order to clean up tre land and offer it for sale in connection with a campaign they were getting up; a man representing himself as Lr.' Richmond same into their office and asked for an extension, and witness talked it over with I'r.Braswell; six months later he directed the sale of the scrap iron because neither Goldstein nor Richmond had removed it.

Mr. Boudreaux testified that it is customary to allow 30 days for removal of scrap iron; that he had handled considerable transactions of that kind

"both up and down the riveer and on both sides".
Joseph Kelan, a junk dealter, was asked:
"Víhat is the custom as to the removal of scrap iron that you have bought"?

On objection,the question vías ruled out.

On behalf of the plaintiff Max Richmond tefetified as follows:

Q. '.fas any time limit placed by you on the removal of that stuff from the place?
A. No, no time limit at all.
Q. Never specified?
A. Never.
Q. ’¡fas anything said to Baker in your presence by Bras-well about the time limit in which the stuff was to be removed,
A. Mr. Baker and this gentleman-here was speaking together at that time, what they said amongst them I don't know, xxx
Q. Do you remember if this man Braswell said to Baker that this iron must be removed within sixty days?
A. No, I don't see how he could have told Baker that when he never told me and Goldstein that".

It does not appear what occupation Richmond pursued, or whether he had any occupation at all.

The plaintiff, Baker, is an itinerant junk-dealer for the last ten years, he describes himself as follows:

"I am a local buyer, I don't have any place. I just buy and sell".

He continued:

"Finally v/ent to the Belle Chasse Company office and the manager gave me a clear receipt. He said everything is O.K. I asked him if he is got any limit and how long he had to keep the scrap iron there. He said, there is not limit at all, you can keep it as long as you want". XXX
C. "',7as anything said to you at that time as to when the iron should be reroved?
A. he give we that lettyr when I told him 1 wanted him
to out down ir that letter there is no limit when I remove the iron. I told him I could not re. ove it so ruick.
He said, "you don’t need, you pro ahead and remove the
iron any time you want".
Q. 7/ere you notified at the time that letter wa3 delivered to you, that there was a tir.e limit in rhich this scrao iron was to be removed?
A. No, sir."

The recital of this testimony shows conclusively that the preponderance Í3 with the defendant. It wight be said that it is immaterial whether any tim.e limit entered into the contract between Richmond and the Company, as it could not affect Baker. That nifcht be; but at the same time, it might serve to corroborate the testimony that there was r.Í30 a tim.e linit^tA tie Baker ««s-issct. Richmond stands alone in sayin.'-: that he was not limited as to time. He is contradicted by Braswell, Boudreaux, ard Barks-dale. Therefore, we must assume that there was a limit as to Richmond.

Baker also stands alone in his testimony. For while he states that lie asked Braswell whether there was a tim.e limit and that the subject wa3 discussed in the conversation with him, Richmond swears he heard nothing of the kind. If a time limit was spoken of and Richmond did not hear it, then it is possible that Braswell did limit the time notwithstanding what Richmond says.

So that the testimony of Baker is pitted against, that of Braswell apd Boudreaux and of Richmond. Perhaps, if it had beer, admitted in evidence , tho memorándum of the sale which Boudreaux ar.rt Braswell had made together, would have settled the controversy.

We are,therefore,constrained to come to the conclusion that there was a time limit as to both Richmond and Baker and that,.at the time the plaintiff vifited the defendant’s office, he was informed that the iron had to be removed within forty days.

'íe feel safe in corning to this conclusion by the additional feet that there is nothing certain ir. nlair.tiff's case excent the sale to Goldstein for $?.00; the rent is shrouded in doubt.

Richmond does r.ot remember how much he Os id to Gold-stein. Yet it anpears by a recéint offered in evidence by him, but not ir. the record, that he naid $195.77.

The transaction between Richmond ard Bp.ker is not established with certainty.

Baker testified first, and he said:
Q. Row much cash did you nay for the scran iron that you bought from l'.s.x Richmond?
A. I don't remember how much.
Q. Row much in a check did you nay him?
A. I don't remember, I naid bin some ir. check ard some cash.
Q. On what bank vías the check?
A. Citizens.
Q. Trill you nroduce that cancelled check that you naid to him.
A. Ho, I can't.
Q. Why?
A. I don't keep track of those checks, I destroy those checks,
Q. When did you destroy them?
A. Always, as soon as I get them from the Bank.
The Court. As soon as you have your book balanced?
A. Yes.
Richmond followed:

As stated by defendant in ar ‘uwent and in his brief, and not denied, before recess he testified as follows:

After the conversation 'with Braswell, Baker "come outside and gave me a check for the iron".
After recess his testimony was as follows:
Q. How were you paid by Baker?
A. It v/as some in cash and some in a check.
-Q. I thought you said by a check?
A. I remember, I did aBk hi» for cash, and he oaid me what he did have in cash and the balance in a check.
Q. How much in cash?
A. I don't remember.
Q. On what bank was the check?
A. I can't remember.
Q. That did you do with the check?
A. I cashed it.
Q. ’.There?
A. I don't remember where I cashed it.

It is not explained where, and when, Baker wrote that check, whether before or after leaving Braswell's office.

The cuantity of 3cran iron on the Plantation at the time of the sale by the defendant to Goldstein anoéars nowhere. Richmond being examined 3ays:

Q. Do you know how many tons of scran iron there was down there ’when you bought it?
A. I can about tell you about how many boilers were there. On the nlace was four. Two in a ditch vrhere they cu' the sides out so the water could drain through’it; two of the same kind of boilers as long as from where I am sitting to that first seat.
Q. Do you know how many tons a boiler weight?
A. Goldstein an old exnerienced man said they weighed 5 tons each/.
0;. hr. Richmond did you see any sugar tanks the^e?
A. Yes.
Q. Do you know how many sugor tanks were there?
A. To tell you exactly now, I can't say exactly, but I know there ivas about five and six sugar tan'-s, I believ»
Q. Hot less than five nor more than six?
A. Ko, I don't think.
Q. There was a large fly wheel,groove wheels, what they call a balancing wheel?
A. They had so much junk scattered around there that I just can't remember".
Q. Row much did you move off the nlace?
A. That v;as before I ever made the deal with Ur.Baker.
Q. Hoví much did you move off before you made the deal with Hr. Baker?
A. Sightsen tons.
Plaintiff testified:
"Mr. Richmond told me he was drafted to go to the army, he has some scran iron and wants to sell it, and 1 went with him to Belle Chasse. We estimated the scran from 65 to 75 tons.
Q. In what condition was the iron wheh you saw it?
A. There was a lot of the scrap that was cut, oLrriéd off and broken un in small nieces, I think two boilers was left".
The Court:
Was the boilers cut into small nieces?
A. One or two boilers was not cut up.

Joseph lielan testified on behalf of defendant. He livéd on Belle Chasse for three years and left there only three months ago; lived there in 1917 and 1S18; has been a junk dealer for tan years; thinks there were about 2.0 tons of junk on t-he olaee; was never employed by the Company.

Boudreaux and Braswell testified, and it is hot contradicted^ that the defendant, on December 27th, 1S18, sold the junk to Wilkom with 30 days to remove it; that Wilkom on same day dold to Glazer, in the sciao iron business, who removed 4?.,900 pounds or 21 tons and a half according to railroad weight tickets, and abandoned the balance on the plantation. Leían testified that he told Baker that the junk had been removed.

Upon reoeint of this information Baker testified as to what be did , as follows:

Q. And so that person told you that some of the iron had been removed?
A. He said, all had been removed.
Q. Of your own knowledge you don't know whether any of it had been removed?
A. Yes, I went and looked for myself.
Q. You don't know then how much of the scrap iron that you saw when you uurehased it that is still on the land; to you?
A. I saw nothing but a smoke stack. Some pieces lying around. I didn't nay any attention. If there ms any thing laying around it is not valuable.
Q. Very poor?
A. Yes, sir.

This evidence establishes beyond question, that according to actual weights, and not by guess-work, the junk removed by Glazer contained only 21 tons and a half tons.and not 65 to f 75 tons, a.nd that the balance remaining jes. "not valuable" and •Vary poor", so much so, that Glazer abandoned it, and that it is still there. There is no suggestion and no evidence that between the time Baker says he bought of Richmond, on Seotember 18yto the time Glazer/on December 27th ámaásd^any one had removed a oar-ticle of that junk.

After having multiplied the quantity of junk it was natural for the plaintiff to inflate its value to $17/5. The first sale by the defendant to Goldstein was for $200; the second sale by Goldstein to Richmond was for $195, and that consisted <Sf the 18 tons removed by Richmond and of the quantity remaining; the third sale from Richmond to Baker, assuming that it was a sale, was for $350; the fourth sale by the defendant to filkom was for $165, and the fifth sale by Y/ilkom to Glazer was for $225, or about $10 a tort: and lielan offered $85 for it.

In the face of this testimony it is hardly worth noticing the'testimony of nlatntiff'3 witness, in the junk and bottle business, that he had ourchased this junk from Baker in February 1918 to be delivered f. o.b. cars in Aoril for $24 a ton. He had never seen the junk and according to his own testimony, the value of scrap iron deoends uoon its kind. It is also remarkable that while plaintiff alleges that he ourchased this junk in Seotember, he nevSr exercised any act of ownership, and never oretended to have found a buyer for it, until he was informed that the defendant had sold it.

The plaintiff never notified the defendant that he had purchased the junk; it was only after he had been told that it had been removed that he called on the defendant. He says:

Q. "What did you do when you found that some of the iron had been removed?
A. I went to the Belle Chasse office and asked then about it.
Q. 'Sho did you see?
A. That gentelman right here, Hr. Braswell.
Q. What did he tell you?
A. They have to sell that olace and have to have room there.
lielan testifies!
"I am the man that brought Baker to the office.
Q. Who did you introduce him to?
A. Kr.Braswell. 1 told him there is the gentleman.
Q. What did Ur. Baker say to Hr.Braswell?
A. He sayo, ‘Shy Hr. Braswell, why you sell my iron? He says., your iron? Baker says: Yes'. Braswell 3ays: I don't know anything about it. Baker says: I am going to sue you.
Q. That was the whole conversation that took dace between Baker and Braswell?.
A. Yes.

It could not have b'en the duty of defendant under any circumstances to have called upon Baker, or to have notified him to remove the ,iunk or they would sell it, because Baker never informed them that he had acquired the yank on l they did not know it. Bven if they hnd known it, Baker had no claco of business, and they did not know where to find him. As far as they knew, Richmond was the owner of the junk, and they knew that he had removed a car load of it. They knew that lie r.ad 60 days to remove whet he wanted, and What be did not remove within that time, they had reason to believe he had abandoned as not -worth talán-: away. They sold to Richmond on June 28th, 1917; they waited until December ’7th, 1917, a eeriod of seven months before they sold to Viilkon; mleuer '.ertly of any time limit they could mt have been exneoted to -. — .it ? :-i; and considering the time-limit, they were more than indulgent. They had no other remedy than to sell to sane one else, and thus have the junk removed.

But ’.7e are not convinced that the defendants nade it clear to Richmond or to Baker that if they failed to remove the junk that they would not only forfeit their right to the junk, but also' to the orice which they had paid. That the defendants liad a ririrt to rescind the contract if it -was not executed -within the time specified, is clear to us. But it does not follow that they would^a have the right to retain the junk and the :rice too. Vie decided \ on October 2jth last in a case against Pailet that it was universal law that where a vendor rescinded a sale if --as his duty to .reimburse the consideration he had received. It is also the duty,¶ XjTÍJtT3*7-of the ven.ee to account for phe revenues of the thing sold^ In' ' the present case the defendants were paid $200 by Goldstein. ^ But Richmond, his transferee, sold eighteen tons at $19 a ton, \ less $1 a ton for preparing it, leavir: hi:.: nt 0324, or $124 more Than he had paid; therefore the defendants owe him nothin-.;, and nothing to hi3 transferee Baker.

C. C., 1501 (1895):

eernent3 legally entered into have the effect of laws on those who have formed them". C.C., 1945 : 24 A., 21,235.
"Whenever the vendee refuses to comply with the sti-^ ■oulation to be performed by him the vendor is obliged t-wait no longer, but my at once demand a dissolution of the contract". 14 A, 341. ^.
"Vhen movables have been sold with an express reso-lutory clause, it is not necessary for the vendor to make a summons upon the purchaser; the resolution takes place ioso facto at the expiration' of the delay agreed uoon". 43 Dalloz Inr. Gen. Vente p 306, 1269; 3 Troo Vente 667; 1 Duvergier p 562 &461; 24 Lifurent 377, 397.

The assignee of a vendee can only acc-uire such rights as he had and takes the property cm_onc_rei 28 A., 598 ; 23 A., 757.

"The debtor (vendee) could only cede the rights he had, and in the condition they were at the time, What was conditional and defeasible.in his hands, did not become absolute and indefeasible in the hands 0? his creditors". 8 La., 83.

Stevenson vs Brown, 32 A., 461, waa a suit against a ven-dee and his vendee for the resolution of a sale for non payment of or ice. The defense of the second vendee was -'ant of recordation of the vendor's privilege as notice to third party.

The Court said on p 463:

"The fact that the vendor has lost, or not preserved, his vnndoris lien, or mortgage, presents no sort of obstacle to the exercise of, this right of resolution.When such an action is brought by the vendor, he does not «se to annul the contract made with his vendee, but to enfiorce it. The case does not differ'in principle from that where any other event is made a condition of resolution.. Thus , if I sell you ray house for $10,000 and stipulate in the act that if a certain ship returns from the Indies the property shall return to me, and the sale be without effect, a suit by me alleging the return of the ship and the consequent avoidance of the contract, will be a suit to enforce one of the stipulations of the contract. Where-ever a right or title is by contract express or implied, made to depend upon a condition, thfit right or title is defeasible. Its holder can confer no greater right then he has himself, and, consequently, all alienations and encumbrances grafted by him vanish when the conditions happens. The vendors action is one in revendication cf the thing. One purchasing property must look to his titles. For the present case that title informed Wade that his vendor Brown had agreed that in the event of failure to pay the notes given for the price, the propasty was to revert to Stevenson. It informed him that Brown's title was defeasible, and dependent for its continuance upon the happening of a condition. One who acquires a title with such stipulations in it, takes it subject thereto". See also 31 A., 627 (634, 635); 12 A., 699 (702); 43 Dalloz Vente § 1365.

Where it appears that the vendee is indebted to the vendor for rents and revenues to an amount greaten than the price paid by him for the property, no tender of the price on the part of the vendor is required before the institution of the suit". 14 A., 598 (599); 43 A., 534; 114 La., 62 (69); 119 La., 795 (360).

The judgment of the lower Court is therefore reversed and set aside, and it is now ordered that there be judgment in favor of the defendants rejecting nlaintiff's demand at his cost.

November 8th, 1920.  