A petition that alleges a contract and the breach thereof shows a
cause of action.
Miller vs. Kline, 31.
Opposition to a provisional account filed by administrators of a
succession, showing a certain amount of funds in their hands for
distribution, must be confined to issues legally arising from the
account. Issues cannot be raised with parties and as to matters
not brought into court through the presentation of the account.
A person is not made a party to a proceeding by calling him into
court simply as a witness.
Succession of Oteri, 395.
'AMICABLE COMPOUNDERS-
The amicable compounder not having been sworn and some of the
facts not having been placed before him in the arbitration, his
return was properly annulled. An amount paid by one of the
parties, which is charged on joint account and afterward credited
on the personal account is a proper showing of indebtedness and
credit. The weight of testimony sustains an item for cement used
for joint account. Credit is entered corresponding with remit-
titur made by plaintiff. A corporation may not have power to
bind itself as a partner, but may bind itself to share in the profits
of contracts it is authorized to perform, with anyone from whom
it receives adequate consideration. Plaintiff, under the agree-
ments, had an interest in the sums earned. Where, in an article
of agreement to submit to an amicable compounder, parties make
admissions in matters not to be submitted to him, there is no
reason, in case it becomes evident that it was not at all a matter
in which there was any difference between them to give it
consideration, and further, where it was made manifest by the
testimony that it was correctly charged, the finding of the District
Court decreeing that it was correctly charged will not be dis-
turbed. An amount earned in a joint venture under a contract
AMICABLE COMPOUNDERS—Continued.
with the United State government was properly charged. The
demand of the intervenor on appeal to set aside agreements between
plaintiff and defendant in order that she may recover her claim is
rejected and the judgment in this respect remains undisturbed.
Mestier & Co. vs. Pavement Company, Limited, 562.
The legality of the exaction imposed upon defendant's property for
a sidewalk construction being at issue, this court has jurisdiction
of the appeal without regard to the amount involved. On the
authority of Bruning vs. Chadwick, 104 La. 718, the judgment
appealed from is reversed and case remanded.
Moody & Co. Ltd. vs. Chadwick, 66.
A motion to dismiss an appeal because of informality in, or
absence of, an order of appeal must be filed within three days after
the filing of the transcript in this court. When the District Court
grants an appeal to the Circuit Court, on condition that a bond be
filed for an amount fixed, it may vacate such an order, before the
filing of the bond and grant an appeal to this court if the same is
applied for in time. The granting of an appeal to a court which is
without jurisdiction to hear the same does not divest the trial
court of jurisdiction to grant an appeal to another tribunal t
which such appeal properly lies. Where an appeal is taken by
motion in open court, at the same term at which the judgment is
rendered, no citation of appeal is required. Where a motion to
dismiss an appeal is predicated upon several grounds, the last
stated of which refers to want of citation, the latter will be con-
sidered waived.
Vallee vs. Hunsberry, 136.
If an appellee has, in point of fact, placed the record in such shape
in the District Court as would entitle him, in case of an appeal by
his opponent, to maintain by the record the judgment in his favor,
it is the duty of appellant to place the record before the court on
appeal in the same condition, but it is no part of his duty to come
to appellee's assistance and make out a proper record for him, if
he, through negligence, has failed to do so himself. An appellant
is entitled, acting in his own interests, to have a statement of
facts made out, but he is not called upon to do so in the interest
of the appellee. The district judge cannot be called upon to make
out a statement of facts in a case after an appeal has been per-
fected therein, either by motion in the District Court or certiorari
from the Supreme Court.
Harvin vs. Blackman, 426.
The appeal of a particular appellant will not be dismissed in limine
on the ground that he has no interest to appeal, when the whole
case is before the court on appeals of others, and an examination
of the entire record would be requisite to ascertain the relations of
parties. Where appellant furnishes an appeal bond for the amount
fixed by the court, the appeal will be maintained as devolutive,
even if the bond be too small for a suspensive appeal.
Mestier & Co. vs. Pavement Co., Ltd., 562.
Where the decision of a cause in one of the inferior courts turns
upon the fact whether a statute be constitutional or not, it is
only when the lower court holds the statute to be unconstitutional
that the cause can be appealed to the Supreme Court on that
issue where the matter in dispute is below the appellate jurisdic-
tion of that court. The Supreme Court will not take jurisdiction
of a cause upon implied allegations. Allegations should be direct
and specific.
State ex rel. McMain vs. Pollock, 594.
An appeal will be dismissed where by eliminating a duplicated
item of damages the demand is reduced to an amount below the
lower limit of the jurisdiction of this court; or where the claim
for damages is manifestly inflated, for the purpose of bringing
the demand within the jurisdiction of this court.
Where the certificate of the clerk shows that the transcript has
been made up under specific instructions from the appellant, and,
notwithstanding the protest of the appellee, contains only such
matter as the appellant has directed him to include, the appeal will
be dismissed.
Stove & Range Co. et als. vs. Rice & Sons et al., 699.
Plaintiff's contention that because by judgment of court the assess-
ment of the Ashton plantation, including movables thereon, was
fixed at $67,000 for the year 1899, the assessor was without
authority to increase it the next year, 1900, is directly negatived by
the ruling in Liquidating Commissioners of the New Orleans
Warehouse Company vs. Marrero, Tax Collector, 106 La. 130.
Neither was it necessary for the assessor, in preparing his assess-
ment rolls for 1900, to give previous notice to the owner that he
intended to raise the assessment for that year over the amount at
which it had been fixed the previous year. No sufficient grounds
appear for disturbing the valuation of the property, for the pur-
pose of taxation for the year 1900, as fixed by the district judge,
and his judgment is sustained.
Legendre vs. Assessor et als., 515.
The banking department of the Citizens' Bank of Louisiana was a
new creation under the Act of 1853 and the compact or articles of
association of that year, adopted in pursuance of the act. The
legislation of 1853 and the compact formed a new constitution of
the bank, in virtue of which the banking department never became
liable for the bonded indebtedness of the State incurred in 1876 in
aid of the bank. Being a new creation for the purpose of conduct-
ing a general banking business, and not being liable for the bonds
of the State, it follows that the banking department had the
capacity to purchase as an investment of separate funds, or a
current business, the bonds in question, just as any other bank or
third person could do. This being so the purchase did not extin-
guish the bonds by confusion and the banking department is enti-
tled to the benefits of the funding scheme in reference to the
bonds it holds, in like manner as any other person would be.
Hope & Co. vs. Board of Liquidation, 315.
In a contract made by a rice farmer with the officers of a canal
irrigating company which was in process of construction, the only
obligation entered into by the farmer was to pay two sacks of rice
per acre "for the land irrigated," the farmer leaving himself at
liberty to plant what land he pleased and to call for irrigation r
not, as he might think proper. By a clause in the contract it was
declared in behalf of the company that "it would use all reason-
able means" to supply water. Such a clause under such circum-
stances has to be liberally construed in behalf of the corporation.
The mere fact that the canal company failed to have had the
canal completed, though it was physically possible to have done so,
did not carry with it liability for damages. The putting in default
in presence of an acknowledged inability to perform or in case of
an absolute denial of the existence of any contract, cannot be
exacted. (37 Ann. 492; 39 Ann. 586.)
Cotton vs. Irrigation Co., Ltd., 4.
The mere fact that a contractor who has undertaken to build and
equip a street railroad has assembled certain material with the
intention of using it for the purpose of the contract, gives the
contractee no proprietary interest in such material, nor does it
give him the right to control the disposition of it. Hence, an in-
junction will not lie at the suit of the contractee to prohibit the
contractor from removing such material, or otherwise disposing
of it.
Railway Co., Ltd., vs. Construction Co., et als., 82.
One who furnishes ties and lumber to a contractor who is building
a railroad and who has received payment for the same in accord-
ance with the terms of his contract has no claim against the com-
pany for which the road is being built, where he has served no
notice and taken no steps to preserve his rights, and his seizure of
the material which has been delivered to, and paid for by, such com-
pany is unauthorized. Where a contractor undertakes to build and
equip a railroad, the mere fact that he has assembled material,
suitable, and which he contemplates using for that purpose, gives
to the other contracting party no right to control his disposition
of such material, and an injunction will not lie to restrain him
from removing it elsewhere. Nor, does the fact that the other
contracting party has given him information which has led to th
obtention of such material make it obligatory upon the contractor
to put it into the road or to sell it to the contractee at cost. Where
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