ceedings ordered the property to be disposed of by private sale. That in this particular

case the sale was beneficial to the minors can make no difference in the law applicable to the sale of minors' property. Public policy demands a strict enforcement of the provisions of the Code for the sale of minors' property; that is, that the law under which it is sold be pursued. Rev. Civil Code, art. 1341; Succession of Morgan, 12 La. Ann. 153; Savage v. Williams, 15 La. Ann. 250; Fix v. Koepke, 44 La. Ann. 747, 11 South. 39. Act No. 25 of 1878 only provides an additional mode for the sale of minors' property which is held in indivision. The record does not show that there was any attempt to sell at private sale. The public sale already advertised was used as the means of disposing of the minors' interest. It is true the terms and conditions of the public sale were the same as those fixed by the family meeting; but still it was a public sale, differing from a private sale, both in the proceedings necessary to provoke it for the sale of minors' property, and in the costs attending the respective methods. A greater price might have been obtained at private sale. In the future the minor might have attacked the sale, and alleged that he had been defrauded; that his property was sold at public, instead of private sale, at which he would have received a greater price. The history of jurisprudence instructs us that such a proceeding is not only possible, but probable, and the defendant in this case was therefore tendered a title suggestive of future litigation. We have repeatedly held that an unwilling vendee cannot be compelled to accept such a title. Succession of Weber, 16 La. Ann. 420; James v. Meyer, 41 La. Ann. 1100, 7 South. 618; Beer v. Leonard, 40 La. Ann. 847, 5 South. 257.

The advertisement of the sale of the property, without a decree to support it, was continued until the last day, when it was sold. On this day, a few hours before the sale, the decree was rendered ordering the sale of the property to be made by private sale. The fact that this decree was rendered could not make the public sale, unauthorizedly advertised, a private sale. There is no evidence that any attempt had been made to sell at private sale. The fortunate circumstance that a bidder opportunely appeared, and offered more than the appraised value, does not negative the fact that more might have been obtained by a thorough canvass for a vendee. It is not improbable that bidders refrained from bidding because of the absence of an order to sell in the first instance. A prudent buyer would look to the source for the sale of the property. This is his protection; and, not finding an order, he would refrain from bidding. The effect of the advertisement and the absence of the order was to destroy competition. If the adjudicatee had complied with the bid, and her title should afterwards be attacked

by the minors, when they attained majority, what would be the defense? If she relied upon the order of court and the law for the sale of minors' property, she would find both wanting; if upon the judgment ordering the property to be sold at private sale, the answer would be: "You purchased at public sale; it was not offered to you at private sale, and your bid was invited by the advertisement for a public sale." It is evident that the sale was made in pursuance of the advertisement at public auction, without an order of court, and not in pursuance of the order to sell at private sale. There was no agreement by defendant to purchase under the order to sell at private sale. One purchasing at auction sale, in pursuance of an advertisement, must be viewed as one purchasing at auction sale, and not as a vendee in a conventional contract at private sale. Collins v. Demarest, 45 La. Ann. 109, 12 South. 121.

The plaintiff contends that the adjudication to the defendant was ratified by the proceedings of the family meeting and the judgment homologating the same. He relies upon article 1794, Rev. Civil Code, and a number of cases quoted in his brief, which do not support his contention. We have carefully examined these cases, and find that the facts bear no resemblance to those in this case. In them the property of the minors had been sold in pursuance of a decree of court which protected the purchaser. In all of these cases there was authority for the sale, and the informalities complained of were relative in their nature, and curable by ratification. In Bank v. Delery, 2 La. Ann. 648, there were relative nullities, which only could be taken advantage of by the minor, and which he ratified on attaining his majority. In Dunbar v. Creditors, Id. 727, the contract had been executed. The father of the minors had surrendered, in his insolvency, community property, onehalf of which belonged to the minors. It was sold by the syndics, without an order of court, based on the advice of a family meeting. The syndics filed a tableau of distribution, which the minors opposed, claiming, with privilege, their portion of the proceeds of the sale of the community property. Their demand was sustained. The court required the sale of the minors' interest to be ratified through the intervention of a family meeting, before they should receive their portion of the proceeds. This was, in effect, carrying out the letter and spirit of article 1794 of the Revised Civil Code, as it was an order in behalf of the party contracting with a minor calling for a ratification of the contract by a family meeting, and an order of court on their deliberations. case, we think, sustains the position of the defendant herein. Vaughan v. Christine, 3 La. Ann. 328: In this case, the intervener claimed that certain property which had been previously partitioned among the heirs

This

On

should be restored to the succession of the father. More than five years had elapsed since the majority of intervener, and the court declared the action barred by prescription. In Charpaux v. Bellocq, 31 La. Ann. 164, the contract of sale had been executed. In 1860 the property was sold by a surviving widow to the defendant. It was held in common with the minor children, and sold without the intervention of a family meeting. The defendant sold the property to the plaintiff, Charpaux, on 14th June, 1866. In this act of sale it was stipulated that the notes given by Charpaux for the price should remain in his hands until the title could be perfected to the property. 25th March, Charpaux instituted suit to annul the sale. The major heirs ratified the sale, and, one of the heirs being a minor, a family meeting was called, and ratified the sale, which proceedings were duly homologated. The demand of the plaintiff was rejected. This case comes under article 1794 of the Code, the title being perfected in the interest of, and on behalf of, the first vendee, the vendor of plaintiff. In Chalon v. Walker, 7 La. Ann. 477, the parties were all majors. Two were married women, who, in the act of partition, were not authorized by their husbands; the answers, in the suit for the same, however, alleging they were duly au thorized. The property was sold at public sale. No experts had been appointed to determine whether the property could be divided in kind or not. The court held that these informalities were such that the parties having an interest could alone waive them, and, having offered to do so, they should have time in which to ratify the sale. In Melancon's Heirs v. Duhamel, 7 La. Ann. 286, the contract was executed. The suit was to recover the price of land sold. Duhamel was evicted from a large portion of the land by one Broussard. He had called his vendor in warranty. Broussard, in the act of renunciation, renounced, in favor of Duhamel, all the advantages, benefits, etc., he had obtained by the judgment of eviction. The warrantor had fully answered the call by preventing the execution of Broussard's judgment, and giving to his vendee absolute protection. Judgment was rendered for the price. In Grimshaw v. Hart, 6 Rob. (La.) 265, the suit was for the specific performance of a contract for the sale of land. The defendants refused to comply with the contract because of mortgages on the property. The mortgage creditors offered to intervene in the act of sale, and relinquish their claims. A specific performance was decreed. In Misner v. Fulshire, 21 La. Ann. 282, the decree for the sale of minors' property was made on the advice of a family meeting. The adjudicatees brought suit to have returned to them the price of the property which they had paid, on the ground that the major heirs had not been made parties in the suit for partition. The major v.14so.no.5-16

heirs accepted their portion of the price, and the court held, by doing so, they had waived their right to attack the sale. In the unreported case of Succession of Leichliter, 36 La. Ann. 989, the heirs were of age. Some had ratified the sale; others had not. Held, that the vendee had the right to retain in his hands the portion of the price going to the heirs who had not ratified the sale. In Succession of Byrne, 38 La. Ann. 518, the adjudicatee of property sued to effect a partition declined to comply with his bid. The court compelled compliance, on the ground that the adjudicatee was protected by the order of the court, and that the irregularities complained of were not such as to cast a cloud on the title tendered. These cases are in line with the Code and the jurisprudence of this state, and do not conflict with the early decisions of this court, already referred to, and the case now noticed, which interprets article 1794 of the Revised Civil Code. This article authorizes a party contracting with an incapacitated person, on discovering error, to call on the person having charge of the incapacitated person for a family meeting to affirm or annul the contract. In the case of Cavelier v. Germain, 6 La. 215, the plaintiff sued out a rule on the defendant to show cause why he should not comply with his bid on a house and lot adjudicated to him. The defendant alleged that the tutrix could not give bond until two days after the adjudication. The tutrix, two days after the adjudication, submitted to the deliberations of a family meeting whether it was for the interest of the minors to have a new adjudication made, or the one to defendant ratified. They recommended the latter. The court held that the ratification by the family meeting was of no avail without the consent of the defendant. The syllabus is as follows: "The subsequent ratification of sale made under such circumstances by a family meeting on the application of the purchaser might have rendered the adjudication valid, but such ratification is of no avail when obtained on behalf of the minors." Under the plain textual provisions of article 1794 of the Code, and the authority of this case, we do not think that the subsequent ratification by a family meeting, without the assent of the defendant, made valid the sale of the property to defendant. The contract was imperfect, and could not be perfected without the assent of defendant. An imperfect title was tendered to defendant, and she was not compelled to accept it. Judgment affirmed.

(45 La. Ann.)

TETE V. LANAUX. (No. 11,253.) (Supreme Court of Louisiana. Nov. 20, 1893.) CONTRACT OF EMPLOYMENT-CONSTRUCTION-DAMAGES FOR BREACH.

1. A person employed, eo nomine, "as a sugar broker," but who stipulates and consents

to receive an annual fixed salary in lieu of commissions, and agrees to effect sales of sugar and molasses that are to be consigned to his employer, and for no one else, and obliges himself to exert all his personal influence to promote the interest of his employer, and to write all letters concerning the sugar and molasses market for his employer, and to make out account sales for sugar and molasses in the transactions made by him, is a clerk, in the ordinary acceptation of the term.

2. The leading and essential distinction between the capacity of a clerk and a broker is: The former hires his services, skill, and industry exclusively to another, while the latter is engaged to make bargains and contracts between two or more persons in matters of trade, commerce, or navigation.

3. Courts of justice must look at the substance and essence of contracts, rather than their form.

4. All contracts for the hire of labor, skill, or industry, without any distinction, whether they can be performed by any other as well as by the obligor, unless there is some special agreement to the contrary, are considered as provisional on the part of the obligor, but heritable on the part of the obligee.

5. Such a person is properly classed as a laborer, within the meaning of Rev. Civil Code, art. 2749; and, if turned away by his employer without sufficient cause, he is entitled to make claim for the whole of the salaries he would have been entitled to have received, had the full term of his services arrived,

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action on contract by Auguste Tete against D. Lanaux, executor of Pierre Lanaux, deceased. There was judgment for defendant, and plaintiff appeals. Reversed.

Albert Voorhies, for appellant. Charles F. Claiborne, for appellee.

WATKINS, J. Plaintiff sues for the unpaid balance of salary, as due him under a written contract with the deceased, on the theory that his employment was that of a clerk or servant, at a certain fixed annual salary of $3,000, payable in monthly installments, in advance; he having been sent away before the expiration of his term of service, and without any serious ground of complaint. To his demand the executor interposes two defenses, to wit: (1) That prior to the time plaintiff had entered upon the discharge of the duties imposed upon him under the stipulations of the written agreement between the parties, as renewed on the 2d of July, 1892, Pierre Lanaux, obligee therein, departed this life, (September 6, 1892,) and that for that reason his claim is not founded in law. (2) That the existence and continuation of said contract-if it were, at date of Lanaux's death, in operation, and plaintiff in the active performance thereof-depended, in fact and in law, as well as in contemplation of the respective parties, upon both of them being in existence during its full term, and that the death of the obligee terminated said contract, and put an end to the rights and obligations of both parties thereto, owing to the nature of the contract, and the

physical impossibility of its execution. On the trial, there was judgment in favor of the defendant, and the plaintiff has appealed.

The contract, provisions of which plaintiff seeks to enforce, is couched in the following terms, and same is reproduced, as the best method of disclosing the salient points in controversy: "New Orleans, July 1st, 1890. Agreement. It is hereby agreed between Pierre Lanaux, party of the first part, and Auguste Tete, party of the second part, as follows, to wit: The party of the first part hereby employs the party of the second part as a sugar broker for the period of one year from July first, 1890, to effect the sales of all sugars and molasses that may be consigned to him, the party of the first part, and, in lieu of the usual commissions allowed on such sales, to pay the party of the second part a fixed salary of three thousand dollars, ($3,000,) payable two hundred and fifty dollars ($250) per month. And the party of the second part, in consideration of said salary to be paid to him by the party of the first part as aforesaid, agrees to effect such sales, and to exert all his personal influence to promote the interest of said party, and to effect no sales of sugar and molasses, except those consigned to him, (the party of the first part.) And the said party of the second part further agrees to write all letters concerning sugar and molasses market of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions made by him for said party of the first part. Signed in duplicate on the day of the month and year above written. [Signed] Pierre Lanaux. Aug. Tete." The parties place upon this contract two altogether different interpretations, thus introducing into this litigation the element of uncertainty that it becomes our duty to resolve; and it must be admitted that the question is not free from serious doubt, notwithstanding the lower judge held with the defendant. The case must depend upon the capacity in which the parties, respectively, covenanted that the plaintiff should act,-whether as broker, clerk, or agent; the plaintiff contending that his engagement was that of a clerk, while the contention of the executor is that he was employed as a broker or agent,

different principles of law appertaining to each. The language of the contract is that "the party of the first part hereby employs the party of the second part as a sugar broker for the period of one year," etc.; and, if that were all the stipulation it contained on the subject, there would be no difficulty in solving the issue tendered. But the contract continues as follows, viz.: "To effect sales of all sugars and molasses that may be consigned to him, party of the first part, and, in lieu of the usual commissions allowed on such sales, to pay the party of the second part $3,000, payable $250 per month."

And

it further provides that in consideration of said salary the party of the second part

"agrees to effect such sales, and to exert all his personal influence to promote the interest of said party, [of the first part,] and to effect no sales of sugar and molasses, except those consigned to him, (the party of the first part.)" And what, possibly, is the most significant provision of the agreement, in this respect, is that it declares that "the said party of the second part further agrees to write all letters concerning the sugar and molasses market of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions made by him for said party of the first part."

A clerk is one who hires his services to an employer at a fixed price, under a stipulation to do and perform some specific duty or labor, which requires the exercise of skill. "The broker is he who is employed to negotiate a matter between two parties, and who for that reason is the mandatory of both." Rev. Civil Code, art. 3016. The leading and essential difference between a clerk and a broker is that the former hires his services exclusively to one person, while the latter is employed to make bargains and contracts between other persons in matters of trade, commerce, and navigation. For the services of the former, there is a fixed, stated salary, while for those of the latter a compensation, commonly styled "brokerage," is allowed. Story, Ag. § 26. Putting the contract under consideration to this test, and what is the result? The very first stipulation of the agreement is that the obligor was to effect the sales of all sugars and molasses that may be consigned to the deceased, and no other, and for his services was to receive a stated salary. His agreement bound him to act for and represent but one party, and "to exert all his personal influence to promote the interest of said party," and to effect no sales of sugar and molasses, except those consigned to the deceased. He further agreed "to write all letters concerning sugars and molasses * of said party of the first

part, and to make out all account sales of sugar and molasses in all said transactions." This analysis of the various terms and provisions of the agreement clearly shows that plaintiff's capacity was that of clerk, and not of a broker; consequently, that while it is true that the declaration of the contract is that the plaintiff was employed as a broker, eo nomine, yet it is elementary that courts of justice are bound to give legal effect to contracts according to their true intent and meaning. And it has been correctly observed by this court that "the character of a contract is to be found in the object the parties sought to accomplish, rather than in the appellation they have given it." Bynum v. Armstrong, 5 Mart. (N. S.) 161. Also, that "the nature of an obligation depends entirely on the obligation it imports." Louisiana State Bank v. Orleans Nav. Co., 3 La. Ann. 303. Again: "We are to look at the sub

stance and essence of contracts, rather than their form." Hutchins v. Field, 10 La. 243.

Our conclusion being that plaintiff was a clerk of the deceased and not a broker, the obligation of the latter was heritable, and survived him, and is exigible against his executor and heirs; for the positive declaration of the Code is that "all contracts for the hire of labor, skill, or industry, without any distinction, whether they can be performed by any other as by the obligor, unless there is some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee." Rev. Civil Code, art. 2007. Certainly, the instant contract contains no "special agreement to the contrary," but, in the most positive terms, affirms its heritable character. The learned counsel of defendant has industriously collated in his brief a large number of French and common-law authorities favoring his theory; but, however strong and persuasive they may be, yet they must yield to the positive fiat of the written law.

This is necessarily the end of the case, as there is no force in the defendant's contention that plaintiff had not, at date of Lanaux's death, entered upon the duties of his engagement. Lanaux was a commission merchant engaged in the sale of sugar and molasses. His first engagement with plaintiff was made on the 1st of July, 1890, for one year. It was renewed for another year on the 1st of July, 1891, and it was again renewed on the 1st of July, 1892. The plaintiff was paid in advance his salary for the months of July, August, and September, 1892; and he was at the time of Lanaux's death, on the 6th of September, 1892, absent temporarily on a sick leave. The engagement was complete and perfect, notwithstanding the sugar market did not open fairly until after the date of Lanaux's death. The terms of his contract had run well-nigh three months when the obligee died. It was during the course of his employment that Lanaux's death occurred. Therefore, the cases cited by defendant's counsel are not in point. Trefethen v. Locke, 16 La. Ann. 19; Word v. Winder, Id. 111.

Counsel further insists that the plaintiff was not sent away by the deceased, in the sense of Rev. Civil Code, art. 2749, but that the obligee's death determined his services, as well as the contract. But the law declares that the obligee's contract, in such case, is heritable, and the proof discloses that, after Lanaux's death, plaintiff called upon the executor, and notified him that he was at his service, and that his reply was that he could return to Pass Christian, where he had been staying, and report again about the 25th of October, to sell sugars and molasses under his contract. It is also in proof that plaintiff returned, at the time indicated, to the executor's office, and proposed to go on with his work, when he was informed that he had changed his mind, and could not retain him any longer, as he did not consider his contract

good. It is evident that the plaintiff was turned away without any serious ground of complaint, and before his term of service had expired, in the sense of Rev. Civil Code, art. 2749, and that the executor is "bound to pay to such laborer the whole of the salaries which he would have been entitled to receive had the full term of his services arrived."

But in deciding this case as we have, and enforcing the plaintiff's contract in its entirety, we do not intend to establish an inflexible rule for the decision of this class of cases, the instant case being somewhat sui generis. Rev. Civil Code, art. 2007, upon which this case chiefly depends, must be construed with reference to the other articles of the Code upon the same subject-matter, and others which furnish rules for the interpretation of agreements generally; and, following this rule, we think the provisions of the following article applicable, viz.: "However general be the terms in which a contract is couched, it extends only to those things concerning which it appears that the parties intended to contract." Rev. Civil Code, art. 1959. Pursuing this theory, we are of opinion that the evidence shows that the magnitude and character of the business transactions of the estate of the deceased rendered plaintiff's services reasonably necessary during the whole term of his contract, and that con

sequently he is equitably as well as legally entitled to require complete performance on the part of the executor.

The amount plaintiff received for the months of July, August, and September, 1892. ($750,) being deducted, he is entitled to recover the balance of $2,250, with legal interest from judicial demand. The judgment rendered in defendant's favor must be reversed, and a decree pronounced in favor of the plaintiff. It is therefore ordered and decreed that the plaintiff and appellant do have and recover of the defendant and appellee the sum of $2,250, with legal interest from judi

cial demand, and costs.

(45 La. Ann.)

EGAN et al. v. HART et al. (No. 11,376.)1 (Supreme Court of Louisiana. Nov. 20, 1893.) LEVEES CONSTRUCTION BY STATE POWER OF GOVERNOR TO CONTRACT-EFFECT OF SUBSCRIP TIONS BY CITIZENS-EFFECT OF LOCATION-DAMNUM ABSQUE INJURIA-RIGHT OF STATE TO CLOSE BAYOU PIERRE BY A DAM.

1. The state having located a public levee, and awarded to a contractor the work of constructing it, the fact that third persons have bound themselves to the contractor to supplement the contract price by subscriptions of money does not impair the public character of the work.

2. Act No. 74 of 1892, creating the Caddo levee district, does not impair the power of the governor, under Act No. 33 of 1879, to contract for public levees in said district, to be paid for with moneys in the general engineer fund.

Rehearing refused December 18, 1893.

3. The board of state engineers has the power to close Bayou Pierre by a dam which is part of the public levee system of the state. The upper part of Bayou Pierre is not navigable. Besides, that stream is wholly within the state, and the authority of the legislature over it is complete.

4. The act of congress admitting Louisiana into the Union does not forbid the legislature from closing, by a dam, such a stream as Bayou Pierre.

5. The state, in locating its public levees. acts in the exercise of its police powers, and private injury resulting therefrom is damnum absque injuria.

(Syllabus by the Court.)

Appeal from district court, parish of Caddo; S. L. Taylor, Judge.

Suit by Lillian W. Egan and her husband to enjoin A. Hart and others from building a dam across Bayou Pierre. Judgment for defendants, and plaintiffs appeal. Affirmed. J. C. Egan and F. G. Thatcher, for appellants. Land & Land, for appellees. J. R. Land, Dist. Atty., for the State, appellee.

PARLANGE, J. This is an injunction suit to restrain the construction of a dam across Bayou Pierre. Plaintiff owns a plantation in Caddo parish, known as "Grigsby's Island," and which is bounded on one side by Red river, and on the other sides by bayous or streams connecting with Red river. Bayou Pierre bounds her plantation in the rear. She complains that A. Hart, and H. B. Richardson, pretending to act as chief engineers of the board of state engineers, and F. M. Kerr, pretending to act as engineer of said board, have combined and conspired to build a dam across Bayou Pierre at a distance of about one mile and a half from Red river, and of about a quarter of a mile from the lowest point of her land. She alleges that the defendants have announced their intention to close Bayou Pierre, and have actually begun the work necessary to carry out their purpose. She alleges that the defendant Hart was employed almost wholly by private persons to do said work; that the necessary funds were supplied by interested private parties, who, for their own selfish interests, and from no public motive, have entered into the combination to dam said

are

bayou; that any pretended contract between Hart and the state is a mere pretext or subterfuge, and was intended as a cloak to cover their illegal acts, and with the hope to shield themselves from the legal consequences of their wrongful acts. She avers specially that if the acts of defendants claimed to be done by virtue of any contract with the state or its officials, and in accordance with law, the board of engineers has no power to close such a natural outlet as Bayou Pierre is; and she says that, since the passage of Act No. 74 of 1892, the board of engineers is without power to advertise for bids, and to let contracts, for building public levees in Caddo parish, and for closing Bayou Pierre, but that said power is lodged exclusively in the board of com