DOWDELL, J. The bill in this case was filed in the name of the state, for the use of the Branch Agricultural School and Experiment Station, located at Blountsville, Ala. The purpose of the bill is the rescission of a contract of sale, and purchase of two pianos and an organ, made by the board of control of said school with the respondent, A. E. Fields. The theory of the bill is that the price paid by the board of control to said Fields for said musical instruments was grossly in excess of the real value of said instruments, and that Fields, being at the time a member of the board of control and acting in a fiduciary relation, was in said sale guilty of a breach of his trust, and that for these reasons the contract should be rescinded. Among other things, the bill also avers an offer to rescind before suit commenced. The material averments of the bill, relied upon as giving it equity, are denied in the answer of said respondent. The cause was regularly submitted upon the pleadings and evidence, and the chancellor, as a result of his finding on the facts, rendered a decree against the complainant.

It is not questioned but that, under the act creating said school, the board of control had the right and authority to contract for the purchase of the property. Pretermitting the question as to the sufficiency of the offer on the part of the complainant to rescind the contract, we are clearly of the opinion, after discarding and rejecting all incompetent and illegal testimony, and regarding only that which is legal and competent, the evidence fully warranted the decree rendered. The fact that the respondent, Fields, was a member of the board that made the purchase, did not prohibit him from making the sale or the board from purchasing said instruments from him, provided the respondent was not guilty of any fraud, misrepresentation, or concealment, and the contract was otherwise fair and reasonable. As to Fields' conduct, the evidence wholly fails to show any fraud, concealment, or misrepresentations made by him in said sale and purchase. On the contrary, the evidence showed the utmost of good conduct and fair dealing. The evidence showed without dispute that when the subject of the purchase of the instruments was first mentioned before the board the respondent, Fields, as a member of the board, opposed the board's making any purchase of the pianos and organ, and at his instance the matter was deferred to a future meeting of the board. The contract of purchase by the board was finally decided upon by a majority of its members, after a full investigation as to the condition and value of the instruments.

the said Fields not participating with the other members of the board further than, after a majority of the board had decided to purchase, to state the price of the instruments. While there is evidence on the part of the plaintiff tending to show that the price paid by the board was much in excess of the real value of the instruments, there was also testimony on the part of the defendant going to show that the price paid was fair and reasonable, and not in excess of the real value. Again, the purchase was made in August, 1896, and these instruments were thereafter used in said school until the following February or March, before it was ever pretended that there was any offer to rescind the contract; and the evidence further shows that, if there was ever any offer to rescind, there was a continued use subsequently of these instruments in said school for more than a year, and this with the knowledge of the chairman of said board, and without objection on his part. And the evidence further shows without dispute that by such use the instruments have been greatly abused and deteriorated in value, making it thereby impossible, by rescission of the contract and return of the instruments, to put the parties in statu quo, and this without fault on the part of the respondent. This, in itself, would justify the refusal of the relief sought by the bill. Upon the whole evidence, we have no doubt of the correctness of the decree.

As to the assignments of error relating to the refusal of the chancellor to pass upon exceptions to evidence, it is sufficient to say that if there was error in this it was without injury; for, as above stated, after discarding and rejecting all incompetent and illegal testimony subject to exception, there still remains, of legal and competent evidence, sufficient to justify the decree rendered.

The decree of the chancellor is affirmed.

(106 La.)

SALMEN BRICK & LUMBER CO. v. LE SASSIER et al. (No. 13,785.)

In re FIDELITY & DEPOSIT CO. OF MARYLAND.

(Supreme Court of Louisiana. Dec. 2, 1901.) BUILDING CONTRACTOR'S BOND-LIABILITY OF SURETIES.

A bond given by a contractor to the owner (and not falling within the operation of Act No. 180 of 1894) to secure the carrying out of a building contract, and which merely recites the obligations of the building contract in order to show the conditions upon which the obligations of the bond to such owner are to become void, does not bind the surety for the obligations of the contractor, under the building contract, to laborers and material men, and the latter have no right of action against such surety.

(Syllabus by the Court.)

Certiorari to court of appeals, parish of Orleans.

Action by the Salmen Brick & Lumber Company against Louis Le Sassier and oth

ers. Judgment in favor of the Fidelity & Deposit Company of Maryland was reversed by the court of appeals, and it brings certiorari. Reversed, and judgment of district court affirmed.

Purnel M. Milner, for applicant. McCloskey & Benedict, for respondent Salmen Brick & Lumber Co.

MONROE, J. This is an application for the review of a judgment rendered by the court of appeals for the parish of Orleans. The record, together with the opinion upon which the judgment is predicated, having been sent up agreeably to an order to that effect, discloses the following as the case to be decided: In November, 1896, the Salmen Brick & Lumber Company brought suit in the civil district court, alleging that Louis Le Sassier and the Fidelity & Deposit Company of Maryland were, in solido, indebted to it in the sum of $1,036.82, "with lien and privilege, and legal interest from judicial demand, and costs, for this, to wit:" That petitioner sold and delivered to said Le Sassier certain brick and lumber, to the amount stated, which "were used by said Le Sassier in the construction of certain improvements contracted for by said Le Sassier with one John Henderson, Jr., of New Orleans; that the Fidelity & Deposit Company bound itself, as surety, for said Le Sassier under his contract with said John Henderson, Jr.; that said Le Sassier has failed and refused to pay petitioner, and both said Le Sassier and said Fidelity & Deposit Company are bound, in solido, to your petitioner." And there is a prayer for citation and judgment, etc. To this petition the Fidelity & Deposit Company excepted that it was too vague and indefinite, etc.; and nothing further was done for a year, when the exception of no cause of action was filed. Thereafter, Le Sassier having entered no appearance, a judgment by default was taken against him, and the Fidelity & Deposit Company answered that the plaintiff, not having brought suit under Act No. 180 of 1894, and not having annexed to its petition either the contract or the bond sued on, and having made no allegation entitling it to a direct action against said defendant company, should be dismissed out of court. A year later the case was put on the call docket on motion of counsel for the Fidelity & Deposit Company, who upon the trial filed a plea of novation, as a peremptory exception, after which there was judgment rejecting plaintiff's demand as against said company, and confirming the default against Le Sassier. And from the judgment so rendered, in so far as it rejected its demand, the plaintiff appealed to the court of appeals, and obtained a reversal; the Fidelity & Deposit Company being condemned by the appellate court in accordance with the prayer of the petition. It is this judgment of the appellate court which, at the instance of the

party condemned, we are now called on to review.

Upon the trial of the case in the district court the counsel for the defendant company objected to all evidence tending to fix any liability on his client, on the ground that it was not authorized by the pleadings, and he particularly objected to the offer of the bond produced by the plaintiff, on the ground that no such bond had been declared on, and that the bond offered was in favor of Henderson, and not of plaintiff, which objection was overruled. Thereafter other evidence was offered, and upon the case as thus presented in the trial court we find the following facts, to wit: In April, 1896, Louis Le Sassier undertook, by written contract with John Henderson, Jr., "to repair and build, in accordance with the plans and specifications furnished by him, of Delogny sugar house, all the work shown on the plans, or mentioned in the specifications, or reasonably implied." And he agreed to give to said Henderson a bond in the sum of $5,000, “in the Fidelity & Deposit Co. of Maryland, as a guaranty to complete the work in accordance with the plans and specifications, and to pay for all labor and material." He further agreed to begin the work on April 27, 1896, and to complete it within 70 working days, under penalty of $10 per day for each day of delay beyond that time; Henderson to furnish quarters for 25 men, and to pay Le Sassier $10,396 in installments; "said payments to be made about the end of each month for the work done and material furnished during that month, less 20%, which is [was] to be held back by the owner until the work is [was] completed, when the amounts remaining due are [were] due and payable." To this there was added a stipulation that there should be no "extra" work. The bond referred to is a bond in which Le Sassier, as principal, and the Fidelity & Deposit Company, as surety, bind themselves to John Henderson, Jr., upon the following condition, to wit: "Whereas, said principal has entered into a certain written contract, bearing date the 24th of April, 1896, that if the said principal shall well and faithfully perform all the obligations assumed by him in said contract, as regards the said John Henderson, Jr., owner, and shall fully pay all subcontractors, laborers, mechanics, workmen, and furnishers thereon, then this obligation and bond shall become null and void; otherwise to remain in full force and effect." The bond contains, also, the following: "Provided, that said surety shall be notified in writing of any act on the part of the said principal, or his agents or employés, which may involve a loss for which said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of the duly-authorized representative or representatives of said John Henderson, Jr., who shall have supervision of the said contract; and a registered letter, mailed

to the president of said surety, at its principal office, in Baltimore City, Md., shall be deemed sufficient notice, within the meaning of this bond: provided, further, that if the said principal shall fail to comply with all the conditions of the said contract, to such an extent that the same shall be forfeited, then said surety shall have the right and privilege to annul said contract, and to sublet or complete the same, whichever the said surety may elect to do, provided it is done in accordance with said contract: provided, further, that, in the event of the breach of any of the conditions of this bond, said surety shall be subrogated to all the rights and properties of said principal arising out of said contract, and all deferred payments and any and all moneys and properties at this time due and payable, or that may thereafter become due and payable, to the said principal, under and by virtue of said contract, shall be credited upon any claim the said John Henderson, Jr., may make upon said surety because of said breach." Le Sassier began work under the contract thus entered into, and the brick and lumber for which the plaintiff is now claiming were shipped to him at Delogny plantation, in the parish of St. James, where the work was being done. He was, however, allowed by Henderson to draw largely in advance of the contract, so that by July 20th he had drawn $9,500, leaving a balance of only $896 to become due upon the completion of the work, which was still far from completion. He was not put in default, but Henderson contented himself with obtaining, through the intermediation of the representative of the defendant company, his (Le Sassier's) consent that the work should be completed by him (Henderson) or said company; and if completed at all, it was completed by Henderson, at an expense which, including the payments made to Le Sassier, exceeded the amounts called for by the latter's contract. As to the plaintiff, its agent testifies that he understood before the material for which the present claim is made was furnished that there was a written contract between Henderson and Le Sassier, and that the latter had given Henderson a bond, but he did not inform himself of the conditions of the contract or bond; nor do we understand him to say that he considered that the bond was given for plaintiff's benefit. He further states that an attested account was served on Henderson, and, he thinks, was recorded; but he made no effort to enforce any lien against the building, and he instructed his attorney not to sue Henderson. Henderson himself, correcting his testimony a few days after it had been given, says: "Further thought has brought to my recollection an interview with Mr. Salmen [plaintiff's representative]. Knowing that the latter was one of the largest (if not the largest) creditors of Le Sassier, I went to see him during the construction of the work on which this suit is based, and asked him how he was getting along with Le Sassier regard

ing payments. He replied that Louis was all right. A considerable time after this conversation Mr. Salmen told me that he had accepted in payment from Le Sassier a certain amount in cash, and took notes for the balance; that when the notes fell due Le Sassier failed to meet them; and that he (Salmen) was compelled to take them up."

Upon the case as thus presented, our learned Brethren of the court of appeals reached the conclusions (1) that the exception addressed to the vagueness of the plaintiff's petition should have been maintained, but that it would serve no useful purpose at this time to review the ruling of the district judge on that point; (2) that the bond given by the defendant company to Henderson contains a stipulation pour autrui of which the plaintiff is entitled to avail itself; (3) that no such novation of the plaintiff's claim against Le Sassier has been shown as to discharge the defendant company from its liability to the plaintiff. We are not asked to review the ruling on the defendant's exceptions, and, as we are of opinion that the plaintiff had no legal claim against the Fidelity & Deposit Company, there can be no question as to the novation of such claim.

The court of appeals, in holding that the Fidelity & Deposit Company incurred a contractual liability in favor of the plaintiff by reason of its becoming the surety of Le Sassier with respect to his building contract with Henderson, has, as we think, confused the relations of the parties, and their obligations, as arising from the building contract and the contract of suretyship, respectively. In the building contract Le Sassier agreed with Henderson that he would do certain building and repairing, that he would furnish the labor and material, that he would pay for the same, and that he would give a bond to secure Henderson with respect to the faithful performance of those different obligations. Under that contract, apart from the special laws governing the subject, if the laborers and material men had been unable to show definitely that they had been employed by, or had furnished materials on the order of, Le Sassier, but had been able to show that they had done work and furnished material called for by the contract, they might well have relied upon the stipulation whereby, in his contract with Henderson, Le Sassier had agreed to pay them; and, accepting that stipulation, they might have compelled him to comply with such agreement. But the contract of suretyship contained no stipulation or agreement in favor of any one except Henderson, nor was it intended for the benefit of any one else, and the benefit to result to him was made dependent upon certain conditions. By that contract, Le Sassier and the Fidelity & Deposit Company acknowledged that they owed, and, impliedly, promised to pay, not to laborers or material men employed by Le Sassier, but to Henderson, the sum of $5,000, provided, however, that the debt should be considered canceled and

the obligation avoided by the faithful fulfillment on the part of Le Sassier of the obligations of the building contract. The Fidelity & Deposit Company did not agree that, in the event of Le Sassier's failure to pay his laborers and material men, it (the Fidelity & Deposit Company) would pay them, but that it would pay Henderson, provided he complied with his own obligations, the sum of $5,000, or so much of that amount as he might be compelled to pay by reason of Le Sassier's failure or default. Observe the obligation of the bond. It consists of an acknowledgment that the principal and surety owe Henderson $5,000, for which they firmly bind themselves, and which, by necessary implication, they promise to pay to the person to whom they acknowledge the indebtedness. Then comes the condition, by reason of or upon compliance with which the obligation is to be considered canceled. This condition begins with a preamble which recites Le Sassier's obligations under the building contract, followed by the condition, proper, to the effect that, if those obligations are fulfilled, the obligation represented by the bond (to pay Henderson $5,000) shall become void. We find nothing in conflict with these views in the authorities cited in the opinion of the respondent court. In Flower v. Lane, 6 Mart. (N. S.) 152, which is particularly referred to, it appears that Flower was the creditor of a steamboat which the defendants had purchased by an act wherein it was stipulated "that they [the purchasers] shall assume, and they do hereby assume, the payment of all claims now due to [by] the said steamboat, without any recourse against either the vendor or his heirs," etc.; and the defendants were held liable to Flower, as a person holding a claim due by the boat, according to their agreement to that effect. It is not pretended that this claim falls within the operation of Act No. 180 of 1894, but the fact that such an act was passed indicates that, in the opinion of the lawmakers, the laborer and the material man have otherwise no direct action on the bond given by the contractor to the owner.

For these reasons, it is ordered, adjudged, and decreed that the judgment which is here made the subject of review be annulled, avoided, and reversed, and that this case be remanded to the court of appeals for the parish of Orleans, with instructions to give judgment in the matter of the Salmen Brick & Lumber Co. against Louis Le Sassier et al., affirming the judgment of the district court in favor of the Fidelity & Deposit Company of Maryland.

(106 La.)

STATE v. WATKINS et al. (No. 14.089.) (Supreme Court of Louisiana. Dec. 2, 1901.) CRIMINAL LAW-SEVERANCE-TALESMEN-AUTHORITY TO SUMMON-INSTRUCTIONS. 1. Where the supreme court is not advised of the facts of the case, it will not assume the

action of the court refusing a severance in a This criminal cause to have been erroneous.

is a matter resting largely in the discretion of trial courts.

2. The district court may, in anticipation of the exhaustion of the regular panel, direct the sheriff to summon talesmen. State v. Moncla, 39 La. Ann. 868. Authority so to do has not been withdrawn by the eleventh section of Act No. 135 of 1898. Complaint on this score where no injury is alleged, when the talesmen selected have been accepted and sworn without objection, is purely technical, and entitled to little consideration. The matter would be, at the utmost, an irregularity which the accused could, and under the statement of the district judge did, waive.

3. Where special charges which counsel of an accused request the judge to give to the jury are grouped, and any one of them is wrong, the court is warranted in refusing the whole.

4. The maxim, "Falsus in uno, falsus in omnibus," is not a rule of law, and cannot be forced to be charged by the court to the jury as such. Juries in criminal cases in Louisiana are judges of the law and the evidence, and should not be tied down by peremptory instructions from the court as to what their course must be in respect to any particular testimony. The right of the court to inform a jury what it is authorized to do is something different from telling it "what it must do."

5. The court correctly refused to charge the jury that "the doctrine of reasonable doubt applies not only to the whole case, but to each and every incident connected with it." That statement is entirely too broad.

6. A déclaration made by the judge in his charge to the jury that "one witness had sworn specifically to this crime" should not have been made, but it does not follow necessarily from the fact that it was made that it was calculated to injure, and did in fact injure, the accused. In the case at bar it occurred in a statement made for the benefit of, and not adversely to, the accused.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Madison; F. H. Ransdell, Judge. Arthur Watkins and Matilda Cooper were convicted of murder, and appeal. Affirmed.

Jeff B. Snyder and A. L. Slack, for appellants. Walter Guion, Atty. Gen., and David M. Evans, Jr., Dist. Atty. (Lewis Guion, of counsel), for the State.

Statement of the Case.

NICHOLLS, C. J. Defendants were indicted jointly with one Philipps for the murder of Joe Cooper. He was granted a severance, tried, and acquitted. Matilda Cooper applied for a severance on the same grounds as those urged by Philipps, but her application was denied. She and Watkins were thereupon jointly tried, the trial resulting in a verdict of guilty, without capital punishment. They appealed.

In refusing the severance the judge stated that from the evidence in the case of State v. Philipps, who was jointly indicted with the parties then on trial, he was convinced that a severance was not necessary to secure a fair trial for defendants; that the testimony would be the same, except possibly in some minor details; that he refused the severance for this reason. We are not informed by the bill what the evidence in the case was.

Appellants, in their second bill of exception, recite that in the progress of the trial Philipps, a codefendant, having been tried by a jury obtained from the regular panel, and it being apparent that it would be difficult to select a jury from the additional jurors, the court ordered the sheriff to summon talesmen, and adjourned on the evening of the 23d of July, and the next morning, the court having refused to permit a severance on the application of Matilda Cooper, the case was ordered proceeded with; that, after examining all the jurors of the regular panel, many were rejected for cause, two peremptorily challenged by the state, and three peremptorily challenged by the accused, and the entire panel of regular jurors was then exhausted; that thereupon the court ordered the sheriff to call the talesmen from those he had summoned the previous evening; that the accused filed a written protest to this order, which was overruled, and the talesmen ordered were sworn, when there was no juror in the box, and no juror to whom the talesman could be drawn to .complete the panel, as argued by the defense; that the talesmen were called and sworn over their objection; that from these talesmen the jury was solely formed; that the accused went into the trial against their objection and protest. The "protest" defendants' counsel refers to declared that: "The regular panel being exhausted, and no juror having been obtained therefrom so as to form the bas's or 'nest egg' upon which talesmen could be called, and the court not having ordered the jury commission to draw additional jurors, to be drawn in accordance with sections 4 and 11 of Act No. 135 of 1898, the accused excepts to any talesmen being called or sworn on the trial of the cause, as there is no law or precedent for such proceeding, in view of the fact that no member of the original panel is now upon the jury." The judge states in reference to this complaint: "That there had been no extra jurors drawn, the court not having anticipated the need of same. That this was a matter within its discretion. That defendants' attorneys knew this. They represented Philipps, who was jointly indicted with the other defendants, and knew the evidence was practically the same in both cases. They suggested and participated in the summoning of the talesmen, which was done on the day before the trial, and they did not except until they had gone into the trial of the case, and the regular venire was exhausted; five of whom were good jurors, and peremptorily challenged, as stated. That not to have overruled defendants' exception would have been to permit them to take advantage of their own acts, and make a farce of justice."

Counsel for the accused asked the court to charge the jury that: "If it should believe that the testimony of any witness whose evidence has been attacked is not consistent, or if they should believe that the

* *

witness has made inconsistent and irreconcilable statements, either under oath or otherwise, which have not been accounted for or explained, then it is the duty of the jury to disregard said witness' testimony entirely. If the jury shall believe that any witness' testimony has been impeached in any one part which is material in the case, then in such event they have a right to believe that it is false in other parts, and have a right, and it is their duty, to reject the whole. That, if the jury should believe that there is any doubt as to the credibility of any witness, then in such cases it is their duty to give the prisoners the benefit of the doubt, and to reject such evidence entirely." The judge refused to give this charge and counsel excepted. Counsel further asked the court to charge the jury as follows: "You are required, under the law, to give the accused the benefit of the doubt. By this is meant that, if you have a reasonable doubt as to their guilt, you must give them the benefit of that doubt, and find them not guilty;

and this doctrine of reasonable doubt not only applies to the whole case, but to each and every incident connected with it. You are the sole judges of the evidence and of the credibility of the witnesses, and, if you have a reasonable doubt of the truth of their statements here, you must give the accused the benefit of the doubt, and you must disregard the testimony of the witness or witnesses concerning whom you have such a doubt." The judge refused to give this charge, assigning as his reasons: (1) That he charged the jury fully as to their being the judges of the law and the evidence, and told them they could believe or disbelieve any part of it they pleased, and could give such faith and credit to the witnesses as they wanted to; and (2) that on the question of reasonable doubt he read from Sack. Instruct. Juries, pp. 645, 646, pars. 32 and 33, which covered the ground fully; that he considered that the charges requested had been practically made and he did not think the last good law. Appellants, in a bill of exceptions filed by them, recite that in his charge to the jury the court made use of the following language, "There is one witness who has testified specifically as to the commission of this crime," to which charge defendants excepted. The judge states that he made this remark for the purpose of calling the jurors' attention to the fact that there had been witnesses introduced to impeach said witness' testimony, and to tell them they were to give this impeaching testimony the same consideration as they did any other evidence in the case. The defendants, after conviction, made a motion for a new trial of character such as to call for no special reference to it.

Opinion.

We cannot say from the record that the judge's action in refusing a severance of