As to the alleged lease and the liability of defendant, the judge says: "The man Baptist was not the lessee of the road. He was a contractor for the purpose of doing certain work. The railroad used by him was in the same condition in which Jay maintained it. "Jay knew from experience the dangerous condition of the wood-burning locomotives. Baptist took them as he found them, and used them as Jay used them. Jay did not supply Baptist with safe appliances. The doctrine in such cases is set forth in Hawver v. Whalen (Ohio) 29 N. E. 1049, 14 L. R. A. $28." One cannot, by employing an independent contractor, relieve himself from liability for the doing of work from which injury will naturally result to another unless means are adopted to prevent it. He must see that such means are employed, although the contractor stipulates to take the risk and responsibility. See, also, A. & E. Ency. of Law, vol. 16, p. 205; Savannah, etc., R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82; Conlon v. Eastern R. Co., 135 Mass. 195. "This principle may be regarded as founded in equity and common sense. I conclude that Jay is the responsible party." Defendant appealed, and plaintiff has joined in the appeal, praying that the judgment be increased to the original amount demanded in the petition. Defendant's counsel, in their brief, contend: "(1) That he is not responsible for any damage caused by fire, even if set by sparks from the engines, because the road was operated by Baptist under the contract offered in evidence, and the defendant had no control over the road or its management. "(2) That the fire was not caused, and could not have been caused, by sparks from the engine. “(3) That the evidence does not exclude the reasonable hypothesis that the fire was occasioned by another cause than sparks from the engine." The second and third grounds of the defense may be considered together. 1. The trial judge, who knew the locus in quo and heard the witnesses, after reviewing the evidence, said: "In the instant case I have weighed the testimony carefully, and cannot arrive at any other conclusion than that the fire was caused by defendant's locomotive." The track was within 150 feet of plaintiff's house, which was covered by an old shingle or board roof. The grade near the house was steep, thus making a forced draft necessary. The fuel used was pine wood. The locomotive was not equipped with a spark arrester. The wind was blowing across the track in the direction of the house at the rate of 25 miles an hour. In a short time after the passage of the train, the roof of the house at the side nearest the track was seen in a blaze. There was no fire in the house for hours before. The kitchen in which one of The the fires was started was not burned. room in which the other was kindled was in the ell of the building. The occupant of this room testified that this fire burned out early in the morning, before he left the premises. The evidence shows that the fire started on the roof of the main building, which was unoccupied and closed, and thence made its way to the ell. The locomotives used on defendant's road caused many fires along its line. In most cases the fires were caused by sparks igniting grass on the right of way near the track, but sometimes the fire commenced some distance from the roadbed. On one occasion a tree 100 yards from the track was set on fire by sparks from the locomotive. The above-recited facts are shown by the evidence, and sustain the conclusion of the trial judge. "The opinion of the judge a quo upon questions of fact, he having had an opportunity of seeing the witnesses and hearing their testimony, is entitled to great weight, and his judgment, unless clearly wrong, will be affirmed." Hennen's Dig. vol. 1, p. 92, No. 1. The facts recited show a clear case of negligence, and disregard for the safety of property along the line of defendant's railroad. 2. In January, 1900, defendant made with William H. Baptist a contract for the cutting and delivery of all the merchantable pine timber on certain described tracts of land. Defendant was to furnish the use of his railroad, two locomotives, cars, tools, etc. Baptist was to keep the same in repair, and bear all expenses of operation of the road, and of cutting and delivering the timber. For compensation, Baptist was to receive the sum of $2.50 per thousand feet of timber delivered. The contract embraced a warranty clause binding Baptist to protect and defend Jay "from all liability for damage that may accrue or be caused to any one by any or every use of said property above named"; it being understood, however, that Baptist should act independently, and have full control of the work stipulated to be done, without supervision of any kind by defendant. Under this contract the timber to be cut and all necessary tools and appliances and means of transportation were furnished by defendant. Baptist furnished superintendence and labor. This contract was not a lease, but a hiring of labor or work by the job. Civ. Code, art. 2756. The operation of the railroad was for the purpose of transporting logs belonging to the defendant. The locomotive which caused the fire never had a spark arrester. The defendant admits this fact, but states that the tubes were so small that a spark more than 14 inch in thickness could not escape. In answer to a question propounded by the pre siding judge, he said that a spark passing through the tubes "might be a foot long." If defendant had been operating the railroad when the house was burned, his failure to use a spark arrester would have constituted a clear case of negligence. The general rule is that the operator of a railroad should use on his engines the most approved mechanical inventions to prevent the escape of fire. 13 Am. & Eng. Ency. Law (2d Ed.) p. 472. Conceding that defendant was not responsible for the negligence of the contractor, the question remains whether the former was absolved by the contract from liability for his own negligence in furnishing a dangerous appliance. It has been held in several cases that a railroad company is liable for the negligence of a contractor operating trains for his own benefit. Hawver v. Whalen, 14 L. R. A. 835, notes, citing Rome & D. R. Co. v. Chasteen, 88 Ala. 591, 7 South. 94; Illinois Cent. R. Co. v. Finnigan, 21 Ill. 646; Chicago, etc., R. Co. v. Whipple, 22 Ill. 105. But the general rule seems to be that, where the contract gives the contractor the right to control the train, the liability rests on him. Elliott on Railroads, vol. 3, § 1063, p. 1590. The same writer says: "Where the contract provides that the company shall furnish appliances or material, the liability of the company for injuries resulting from defects in such appliances or material depends largely upon the circumstances of each case." Id. p. 1591. In Conlon v. Eastern Ry. Co., 135 Mass. 195, it was held that when a person, not the servant of the master or contractor, was injured by the fall of a derrick furnished by the master under the contract, and which, when delivered, was obviously defective, the master was liable for the injury. In King v. New York O. & H. R. R. Co., 66 N. Y. 181, 23 Am. Rep. 37, defendant furnished a derrick suitable and safe at the time for use. In Savannah R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82, it was held: "A railroad company which furnished to an independent contractor an engine upon which a fireman already in the service of the company was by it ordered to work is liable to him for personal injuries caused by defects in the engine attributable to the company's negligence, though the train was entirely under the control of the contractor." If, as in this case, the injury is attributable to the fault of the corporation or individual owning the railroad, in furnishing a dangerous appliance for the use of the contractor, the resulting liability cannot be shifted by contract to the prejudice of third persons. If the contractor was also negligent in operating the unsafe appliance, it cannot avail the owner, who was himself guilty of negligence. It would be a dangerous doctrine to hold that the owner of a railroad can escape liability for defective engines by turning over the plant to a contractor under an agreement that the latter shall operate trains, and be responsible for all damages to persons or property. The district judge well said: "Jay knew from experience the dangerous condition of the wood-burning locomotives. Baptist took them as he found them, and used them as Jay had used them. Jay did not supply Baptist with safe appliances." Defendant obtained from plaintiff, for little or no consideration, a right of way for his railroad very near her residence. He certainly owed the plaintiff the duty of using reasonable precautions against the danger of fire. He should not be permitted to escape the performance of that duty by operating unsafe appliances through a third person. The contractor should be considered as his agent in such operation. The question is new in our jurisprudence, but we do not consider its solution difficult, on principles of justice and equity. 3. In fixing the value of the property destroyed, including paintings, books, old furniture, and other objects of uncertain value, the judge a quo adopted the lowest estimate shown by the evidence. He had a personal knowledge of the building and contents, as shown by his testimony. Value is largely a matter of opinion, and, where there is no market value, it is more or less a matter of conjecture. We are not prepared, after a review of the evidence, to dissent from the conclusions of the judge a quo. SIGUR. BURGUIERES' EX'RS. (Supreme Court of Louisiana. Feb. 1, 1904.) PAYMENT-EVIDENCE 1. The character, temperament, and habits of two litigants, as also the surrounding circumstances, considered, it may be more probable that one has forgotten a debt due or to become due him by the other, than that the other should have paid it and have preserved no rec ord or memoranda showing how, when, where, or to whom such payment was or might have been made. 2. The law requires something more cogent to prove the payment of a debt than mere probability. 3. Where, by the unambiguous terms of contract, the rights of a party in a particular respect are to be governed by a specified condition, with reference to which alone he is called on to regulate his conduct, he cannot, at the option of the other contracting party, be affected by another and different condition to which he has never assented, even though, if it had •Rehearing denied March 14, 1904. been so agreed, the one condition might have served the purpose of the other. (Syllabus by the Court.) Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge. Action by J. Oscar Sigur against the executors of J. M. Burguieres. Judgment for defendants, and plaintiff appeals. Reversed. Donelson, Caffery & Son, F. Rivers Richardson, and Placide P. Sigur, for appellant. Philip H. Mentz and Saunders & Gurley, for appellees. Statement or the Case. MONROE, J. In October, 1885, the plaintiff, by notarial act, sold to Patrick Scally a tract of land in the parish of St. Mary, the consideration being $10,000, of which Scally paid $5,000 in cash, and for the balance gave two notes of $2,500 each, of even date with the sale, the one payable October 8, 1886, and the other, to quote the language of the act of sale, "at the majority of Jean Marie Aruns Callery and when he shall ratify the sale herein made." In 1888 Scally sold the land thus acquired to J. M. Burguieres, who, as part of the price, assumed and promised to pay the note last above mentioned, which bears interest at the rate of 8 per cent. per anuum from maturity. The plaintiff now alleges that before its maturity he became indebted to Burguieres, who was then a commission merchant in New Orleans, and that he pledged the note to him as security, and that, although his indebtedness was thereafter discharged, it has never been returned or accounted for. He further alleges that J. M. A. Callery, by notarial act of September 24, 1900, ratified the sale from petitioner to Scally; that Burguieres is dead, and that his succession is being administered by his executors; and he prays that they be cited, and that he have judgment for $2,500, with interest and attorney's fees. The executors admit the assumpsit of the note by their decedent, but deny that it was ever pledged to him by the plaintiff. They allege that plaintiff acquired the property, in part payment of the price of which the notes were given, in a partition proceeding to which J. M. A. Callery, then a minor, was a party, and that Callery, on December 28, 1858, ratified the partition, and thereby, in effect, ratified the sale by plaintiff to Scally; that the note thereupon matured, and was paid by their decedent, "and, if not paid, that it is prescribed." They further allege that plaintiff made no claim with respect to said note until after the death of J. M. Burguleres, and then only when he learned that respondents were unable to find it. They therefore pray that this suit be dismissed. The facts established by the evidence in the record are as follows: In December, 1884, the plaintiff, by an act of partition be tween certain members of the Callery family, Mrs. Edward Sigur, and himself, was recog nized as the owner of one-half of the Richland Plantation, said to contain about 1,630 acres, and of the movable property thereon. In October of that year he sold 300 acres of the land so acquired, upon the terms as stated in plaintiff's petition, to Patrick Scally; in March, 1887, he mortgaged his remaining interest in said land for $2,200 to J. M. Burguieres; in April, 1889, he mortgaged the same property for $2,500 to D. R. Calder; in January, 1890, he mortgaged it for $2,700 to J. B. Brown; and in February, 1890, he mortgaged it for $6,350 to Mrs. Allen. The parties to these transactions dispensed with certificates from the mortgage office, but the evidence shows that the mortgage to Mrs. Allen was granted to secure a loan of actual cash obtained from a lady whose legal adviser testifies that he was particular to see that it was first in rank, from which it follows either that the prior mortgages, including that of Burguieres, had already been satisfied, or else that they were satisfied from the proceeds of the loan from Mrs. Allen. In January, 1891, the plaintiff mortgaged the property as security for advances to be made to the extent of $3,300 to Mr. Block, the certificate being as usual dispensed with, and in February, 1892, J. A. O'Neil obtained judgment against him for two sums aggregating $257.84, with interest and attorney's fees, and Mrs. Rombach obtained judgment against him for $120.05 and interest. The plaintiff then, on May 11th, sold to Burguieres (about) 265 acres of his land for $2,000, which amount was retained by Burguieres, who paid the debts due by the plaintiff to his other creditors, and made other advances, as follows: May 11th. Paid balance due M. Block. May 14th. Paid Mrs. Rombach (judgment)... $2,615 41 5,559 00 50 00 138 90 316 20 30 19 2 64 $8,712 34 Without calculating the interest, this arrangement brought plaintiff in debt to Burguieres in the sum of $6,712.34, and made the latter his sole creditor, until March 15, 1892, when the plaintiff, in order to secure the debt, made a paper sale to Burguieres of his remaining land, together with the buildings, mules, etc., for $7,000, and Burguieres, upon the same day, sold the property back to him at the same price, represented by three notes of $2,233.33 each, payable in one, two, and three years, and secured as usual. Thereafter, in February, 1894, plaintiff sold the property to Philip Bodenheimer and his sister for $11,860, of which, according to the recitals of the act, the purchasers paid $1,360 in cash, and for the balance gave their note for $2,950 and assumed the three notes due by their vendor to Burguieres. It will be observed that $1,360 plus $2,950 plus $7,000 is equal to $11,310, and not $11,860, and the difference of $550 is not accounted for. It is also a fact, which develops later, that the note for $2,950, as described in the act, in some way turns out, when paid to Sigur, to be a note for $2,940. Nevertheless, the result of the sale to Bodenheimer was that Burguieres was paid all that Sigur owed him, and, save that he subsequently invested some of his money in the Bodenheimer note of $2,950 (or $2,940) about the time of its maturity, he and Sigur appear to have had no further dealings together. Reverting to the subject of the present litigation, Sigur testifies that when, in 1887, he gave Burguieres the mortgage for $2,200, he offered him the note in question as additional security, and that it was turned over to him by his (Sigur's) legal adviser, then the partner of the present counsel for the defendants, with whom it had been deposited for safe-keeping, and that he (Sigur) thereafter forgot its existence. The gentleman to whom he refers, being examined as a witness, was unable to remember the circumstance narrated by the plaintiff, and for a while seemed to think it improbable that the latter had at any time left any money, notes, or securities in his possession or in that of his firm. At the close of his examination, however, he said: "Now, I do remember that Mr. Block had some kind of a prior claim, or mortgage, or judgment, against Mr. Sigur, which, I think, the purchaser of the property required that we should pay off, and some money was left with us, or some note, or something, for the purpose of paying off those prior incumbrances." The then partner of the witness (the present counsel for the defendant) is quite positive that the note sued on was not in the possession of his firm or of his partner, as stated by the plaintiff, though he testifies that he represented Burguieres in paying plaintiff's debts in 1892, and that the money used for that purpose passed through his hands. Upon the other hand, E. J. Callery testifies that in 1887 Burguieres told him that he had the note in question and showed it to him, and that, shortly before his death, Burguieres inquired about Sigur, and, being told that the latter was very poor and was working on the public roads, spoke of some money that he would get, but refused to go into particulars. Beyond this, it appears that Burguieres died in September, 1899, and that his son and executor at once set about canceling a number of old mortgages which rested on his property, and the notes representing which were among the decedent's effects. Finding the mortgage securing the Scally note uncanceled, and not finding the note, he wrote several letters of inquiry, and, among them, one to J. M. A. Callery, the party at whose majority, followed by his rat ification of the sale to Scally, the note was to mature, reading as follows: "New Orleans, October 28, 1899. "Jean Marie Callery, Glencoe, La. "Dear Sir: When father bought the Florence Plantation from Mr. Scally, he gave him several notes, among which was one for $2500, which was made payable when you became of age. From this, it might ap pear that the note was made payable in your favor. If you do not know anything about this matter, please look into it as it might be to your interest. "Yours truly, Estate J. M. Burguieres, "Per J. E. Burguieres, Executor." He also wrote to Mr. Bonvillain, who, having been examined under commission as a witness for the defense, was interrogated, and answered as follows: "Int. 4: Did you ever hear from any one representing the estate of J. M. Burguieres that a promissory note secured by mortgage on his Florence Plantation was lost or mislaid? If you did, how soon was this after the death of Jules M. Burguieres? From whom did you learn this? Did you learn this through a letter or conversation? If through a letter, please annex the letter, or state whether you can find it, or what has become of it?" "To the fourth interrogatory: About two weeks after the death of J. M. Burguieres I received a letter from Joseph E. Burguieres advising me that a certain promissory note had been lost, which is the note mentioned. The letter from J. E. Burguieres has been lost or mislaid. Int. 5. If you have said that you learned of a note being lost or mislaid, then state by whom that note was due, and the amount of the note, and state why the party informing you of its loss wrote to you, and what he asked you to ascertain for him? To the fifth interrogatory: The amount of the note was $2,500, with interest, being a mortgage note bearing on Florence Plantation. He requested me to ascertain from J. O. Sigur who was the rightful owner of this note, or who was entitled to hold it by law." From other evidence it appears that, although Mr. Burguieres was a commission merchant, a banker, and a man of affairs generally, who made a business of lending money, and although Sigur testifies that for several years after the mortgage transaction of 1887 he borrowed from him repeatedly, his books show no account with Sigur, and no account was ever rendered to that gentle The defendants have filed in evidence the transcript of a page, or a part of a page, from one of the decedent's books, and, upon a traverse to a subpoena duces tecum calling upon them to produce "all the commercial books or private accounts of Jules M. Burguieres, deceased, from January, 1887, to the date of the death of the said Burguieres, and all papers, promissory notes, or accounts man. foregoing en It will be observed that the tries, in so far as they are dated at all, appear to have been made January 2, 1892. The checks with which the amounts repre sented by them were paid are, however, in the record, and are dated May 11, 13, 14, and 17, 1892, respectively. The entries were therefore not made at the dates of the transactions which they purport to represent, and, as the date at which they appear to have been made is an impossible one, there is nothing to show when they were made, and, as made, they do not attain the status or dignity of an account. It was stated by the executor, in the course of the trial in the district court, that there might be an account, somewhere, in the name of Scally, which would throw light upon the subjectmatter of this litigation, but, if any such account was found, it was not produced, although the counsel for the plaintiff appear to have been willing, and to be willing now, that anything discovered in the books should go in evidence. It is shown that the plaintiff was so reckless in the management of his affairs that within a few years he allowed a fair patrimony to slip through his hands, and was reduced to the necessity of maintaining himself and his family by working as a laborer on the public roads. Upon the other hand, we were informed by the counsel for the defendants, in the course of his oral argument, that the late J. M. Burguieres was a most competent and successful business man, and that, whilst the plaintiff grew poorer and poorer, he grew richer and richer-this, as we understand, by way of showing that it was not likely that the one should have allowed the other to withhold so considerable a sum as $2,500 which he had the right to demand. There is, however, nothing else in the record to support the defendants' plea of payment. It is shown that in December, 1888, J. M. A. Callery, by notarial act, ratified a certain partition, said to have been effected between the heirs of Edward Sigur, by act before George B. Sheppard, notary, December 24, 1884; but, as the only act of partition which we find in the record bears date December 27, 1885, it is probable that there is error in the date mentioned in the ratification. It is also shown that in the autumn of 1899, after the attention of the plaintiff had been called to the matter out of which this suit has arisen, he requested J. M. A. Callery to ratify the sale from him (plaintiff) to Scally, in order that the note here sued on should become exigible, and that an act of ratification was prepared, but that Callery postponed action on the ground that he needed more information, and the act, as thus prepared, was not signed. Upon September 24, 1900, however, having presumably investigated the matter to his satisfaction, he signed an act, formally ratifying the sale, and relinquishing any rights that he might have had in the property sold in favor of Patrick Scally and his assigns, and shortly thereafter this suit was filed. Opinion. Ordinarily, it would seem improbable that a man should forget the existence of a note of $2,500 of which he is the payee, but the plaintiff in this case has been exceptionally careless or incompetent in the management of his affairs, as is shown, not only by the evidence in this record, but as appears from the case of Brian v. Bonvillain (recently decided by this court) 35 South. 632, in which it was found that either the partition which is referred to in this case, or some other, was effected in such a way that he lost, and there was assigned to another person, an undivided one-ninth interest, of which he was unquestionably the owner, in a valuable plantation. In fact, he seems in those days to have had more money than he well knew what to do with, and it appears to us, considering his character, temperament, and habits, much more likely that he should have forgotten the $2,500, which he did not then need, and which was to become due upon the happening of an event in the future, than that Burguieres, a methodical and successful commission merchant and banker, should have paid that amount and have preserved no record or memorandum showing or suggesting how, when, where, or to whom such payment was or might have been made. |