pose of opposing the enforcement of a certain in the Court of Appeal, and had been refused. provision of the oyster laws of the state, prohibiting the shipment of oysters, except in sacks of certain dimensions. On the occasion in question, the attitude and conduct of the defendants were sufficiently minatory to prevent the shipment of a cargo of oysters belonging to the plaintiffs. It is therefore ordered that the judgment of the Court of Appeal herein be amended by reducing the amount thereof to $305.79, and that, as thus amended, be affirmed. It is further ordered that the plaintiffs pay the costs of this proceeding. (1.29 La. 509) No. 19,039. BOWLUS et al. v. WHATLEY et al. In re WHATLEY et al. In answer to this motion, counsel for applicant files affidavit to the effect that he instructed the clerk of the Court of Appeal to insert in the record a certified copy of an extract from the minutes, showing that a rehearing had been refused. To the answer to the motion to dismiss is annexed a certified extract from the minutes, reciting that the application for a rehearing had been denied. Under the circumstances, we think that there has been a sufficient compliance with rule 12 (47 South. vii) of this court, and the motion to dismiss is therefore denied. On the Merits. [2] This is a petitory action for the recovery of a tract of land containing 50 acres, more or less, situated in Rapides parish. Plaintiffs base their title, through mesne (Supreme Court of Louisiana. Oct. 30, 1911.) conveyances, upon a deed of the property (Syllabus by the Court.) On Motion to Dismiss. from Mrs. Elise Schmalinski to Adolph Strauss, January 30, 1892, recorded in Conveyance Book P, fol. 297-299, of Rapides 1. CERTIORARI (§ 42*)-DISMISSAL-GROUNDS parish. They allege that William J. What-DEFECTS IN RECORD. When counsel for applicant for a writ of review makes affidavit that he instructed the clerk of the Court of Appeal to insert in the record the minute entry showing that a rehearing had been denied, and when such minute entry is filed with the affidavit, the application will not be dismissed, on the ground that the record does not show that a rehearing had been refused in the Court of Appeal. [Ed. Note. For other cases, see Certiorari, Dec. Dig. 42.*] On the Merits. 2. DEEDS (§§ 35, 84*)-FORM OF ACT-RECORD. The act evidencing a remunerative donation need not recite the value of the thing given or of the services intended to be compensated; and remunerative donations, not being real donations, and not being subject to the rules applicable to donations inter vivos, need not be recorded in a separate book, but should be recorded, if conveying real estate, in a conveyance book of the parish in which the property conveyed is situated. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 58, 222-224; Dec. Dig. §§ 35, 84.*] Action by George A. Bowlus and others against William J. Whatley and others. Judgment for defendants was reversed by the Court of Appeal, and, an application for rehearing having been denied, defendants Whatley and others applied for certiorari or writ of review to the Court of Appeal. Judgment affirmed. See, also, 54 South. 972. Blackmun & Overton and Robert P. Hunter & Sons, for applicants. White, Thornton & Holloman, for respondents. On Motion to Dismiss. SOMMERVILLE, J. [1] Motion has been made to dismiss this application for a writ of review, on the ground that the record fails to show that rehearing had been asked for ley is in actual possession, as lessee of parties unknown to them, and they pray for judgment against him and his lessors, decreeing petitioners to be the owners of the property, and awarding them possession; they also pray for judgment for rents and revenues at the rate of $3 per acre per annum for three years, and at the same rate for each additional year until final judgment and possession be given. Whatley disclosed A. V. Guillory as his lessor. Guillory answered, setting up title in himself, as having bought the property from Samuel Haas, who bought from William J. Whatley, who bought, February 1, 1900, from Mrs. Elise Schmalinski. Guillory further sets up: That the alleged transfer from Mrs. Schmalinski to Strauss is null. That "said illegal transfer is not a sale, nor did the same confer upon the said Strauss or his assigns any real right or claim upon said property, for the reason that the same shows on its face that it was made without legal consideration." Further answering, defendant alleges that he purchased in good faith, and has made improvements well worth $1,000, which sum he claims in the event of eviction. Haas, Whatley, and Mrs. Schmalinski were each in turn called in warranty, and each filed answers. Mrs. Schmalinski alleges that Strauss never acquired any of this property from her; that the instrument relied upon by plaintiffs did not operate as a transfer of title, and is upon its face not translative of property; that, for want of a fixed price, it is neither a sale nor a giving in payment; that it is not a donation, as shown by its stipulations, and because there was no acceptance in the form required by law, and because there was no recordation of the in-, Schmalinski's intention to make a remunerastrument in the book of donations. The judgment of the district court was for defendant, but was reversed by the Court of Appeal, and is now before us on a writ of review. The Court of Appeal decreed plaintiffs to be the owners of the land in question, and allowed them rent from judicial demand at the rate of $75 a year to the date of the execution of the judgment. Defendants were decreed to be entitled to $750 for improvements. So far as the calls in warranty are concerned, the case was remanded to the district court to ascertain the amounts due, and to render judgments on said calls in warranty accordingly. The consideration expressed in the deed from Mrs. Schmalinski to Strauss is as follows: "For, and in consideration of the services rendered her by Adolph Strauss, as a land agent in effecting an exchange of property between herself and Mrs. M. A. Ashley, this day, she does grant, give, transfer and set over unto Adolph Strauss the following described property, to wit." It can hardly be seriously doubted that the rendition of services creates an obligation; and surely no one would assert that the extinguishment of an obligation is not a legal basis for the transfer of property. The contention, then, that the Strauss deed shows want of consideration, must fall. The deed to Strauss thus reciting a valid consideration, if it was properly recorded, those claiming under him cannot be required to go beyond the recitals of the deed, and to prosecute an investigation into the reality or legality of the consideration named therein. But, as shown in the case of Ashley v. Schmalinski, 46 La. Ann. 499, 15 South. 1, Strauss had actually rendered to Mrs. Schmalinski services of great value, services which she had employed him to perform, and for which she intended to pay; he had induced Mrs. Ashley to exchange her residence, worth $8,000, for Mrs. Schmalinski's wholly worthless land. consideration, as recited in the deed, being valid, and being in fact valid at the time of the signing of the deed, this validity is not affected by a subsequent decree of the Supreme Court, setting aside the exchange at the suit of Mrs. Ashley. The The instrument in question evidences neither a sale, a giving in payment, nor an exchange, but it does evidence a remunerative donation. And it is quite clear from the language used in the act—“grant, give, set over and transfer"-that it was Mrs. tive donation. To constitute such a donation, as held in Hearsey v. Craig, 126 La. 824, 53 South. 17, the law does not require that the value of the thing given, or of the services intended to be compensated, should be fixed and stated. Strauss signed the act and recorded it; this constituted an acceptance by him. De It is true that C. C. art. 1554 provides that when property susceptible of mortgage is donated it must be registered in a separate book; but C. C. arts. 1525 and 1526 distinctly affirm that the remunerative donation is not a real donation, and that in consequence the rules peculiar to donations inter vivos do not apply to it, except when the value of the object given exceeds by one-half that of the services. Complaint is made by defendants that plaintiffs have failed to prove the value of Strauss' services; but, as held in Hearsey v. Craig, 126 La. 824, 53 South. 17, where a conveyance, purporting to be a remunerative donation, is attacked, on the ground that the value of the property donated exceeds by one-half that of the services intended to be compensated, the burden of making this proof is on the party making the allegation. fendants' complaint is therefore groundless; and the donation to Strauss must be held to be such a remunerative donation as to make it not a real donation, and not subject to the rules peculiar to donations inter vivos. One of these peculiar rules is that donations must be recorded in a separate book. C. C. art. 2252 provides that, if the notarial act contains a conveyance of immovable property, it shall be recorded in a book of conveyances. A giving in payment of an immovable is a conveyance of an immovable, and must be recorded in a conveyance book. Now, a remunerative donation differs from a giving in payment in this: That such donation need fix no price; the giving in payment must. A remunerative donation of real estate is a conveyance of real estate, but as it is not subject to the rules peculiar to donations inter vivos, such conveyances must be recorded in the conveyance book; its recordation in the book of donations is not necessary. Under C. C. art. 503, defendants were, up to the time of citation in this suit (February 14, 1908), possessors in good faith. We find no error in the judgment and decree of the Court of Appeal, and the same are affirmed, with costs. (129 La. 514) No. 18,549. BOARD OF COM'RS OF PLAQUEMINES (Syllabus by the Court.) fore December 1, 1902, and completed before June 1, 1904. The work was to be done under the direction of the state engineer in charge. As the work progressed, monthly estimates were to be made and certificates issued to the contractors by said engineer, and 80 per cent. of the amounts called for by the certificates were to be paid in cash, and 20 per cent. on the completion of the work. The three contracts were (on May 11, 1904) amended and modified, with the consent of the surety company, and the term for the completion of the work extended to May 31, 1905. On January 3, 1905, the situation was as follows: In section 1, only 257,000 cubic yards of earth out of 471,049 required for the comple tion of this section had been placed in position, and the contractors had received payment for the work done as provided by the contract. In certain levee contracts, the following stipulation was inserted: "Should the contractor fail to prosecute the work under this contract with the vigor necessary to its completion within the time stipulated, in the opinion of the engineer in charge, all estimates may be withheld, and it shall be competent for, and the duty of, the president of the board to employ such additional force as may be necessary at the expense of the contractor." The contractor failed to complete the work within the time stipulated, and thereupon the board agreed to In section 2 only 29,000 cubic extend the time for one year, and to grant a further extension, if desired by the contractor, yards, out of a total of 420,779, had been on the performance of certain conditions, pro- placed in position by the contractors. In vided the contractor would use every possible section 3 no work had been done by the coneffort to complete the construction of the levees at the earliest possible date. Held, that the tractors. From the report of date January said extension and promised extension of time 3, 1905, made by the state engineer in charge did not dispense the contractor from the obli- to the board of commissioners, it appears gation of vigorously prosecuting the work as re- that between November 5, 1904, and January quired by the stipulation in the original contract, and did not abrogate the right of the 3, 1905, the only work done by the contractors board to withhold estimates in the event of the was dredging to the amount of 10,000 or 12,failure of the contractor to discharge such obli- 000 cubic yards of earth, and that the small gation. amount of work done was due to the use of a defective dredge by the contractors. said report concludes as follows: [Ed. Note.-For other cases, see Levees, Dec. Dig. § 16.*] Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge. Action by the Board of Commissioners of the Plaquemines Parish East Bank Levee District against Dowdle & Windette and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with instructions. John Dymond, Jr., and James Wilkinson, for appellant. Rouse, Grant & Grant, for appellee National Surety Co. LAND, J. Plaintiff appeals from a judgment sustaining an exception of no cause of action filed by the National Surety Com pany. The facts as shown by the allegations of the petition and the documents thereto annexed are substantially as follows: In 1902 the plaintiff entered into three separate contracts with Dowdle & Windette for the construction of certain levees, styled "Gulf Coast Levees 1, 2, and 3." The National Surety Company became surety on the contractors' bond in the sum of $10,000 for the faithful performance of each contract. The three contracts and the three bonds contained the same stipulations and conditions, which, as far as necessary to state, were in substance, as follows: The "In this section, at the rate at which maperiod must elapse before the earth work can terial is now being handled, an indefinite long possibly be placed in position, without considering the time to be consumed in the dressing and grassing of the embankment. Under such conditions, in my judgment, all further estimates and sums unpaid to the contractor should be withheld, as provided for in section 9 of the contract. As you are aware of, no work at all has been accomplished in section No. 3." On January 4, 1905, the board of commis sioners, considering the report and recommendation of the state engineer in charge, adopted a resolution suspending further payments to the contractors, and requiring them to notify the board at once what provisions they proposed to make by additional dredges or other means to comply with their contracts as they should. On receiving notice of the passage of their resolution, the contractors abandoned further prosecution of the work, and instituted suit in the United States Circuit Court against the board for the dissolution of said three contracts. The board subsequently let out the completion of the work to the lowest bidder at a price exceeding the contract price by $28,725.78. Plaintiff sued the contractors for said sum, and the surety company for the sum of $26, The work was to be commenced on or be- 925.08. Section 9 of the original contracts reads as follows: in "Should the contractor fail to prosecute the work under this contract with the vigor necessary to its completion within the time stipulated, in the opinion of the engineer in charge, all estimates may be withheid; and it shall be competent for and the duty of the president of the board to employ such additional force as he may deem necessary at the expense of the contractors. Should it become necessary, the judgment of the president of the board, to suspend this contract, or to declare it vacated or annulled, for negligence, inefficiency, or abandonment by contractor, he may proceed to do so, and in such a case the 20 per cent. reserved as security for completion of contract, and all other sums paid to said contractor by the Plaquemines Parish East Bank Levee District, shall be forfeited, the decision of the board of commissioners to be final as to the cause of action on the part of the president or engineer in charge. Should damage accrue to the district, or to those to be protected by the levee, from such laches, or from abandonment of the work, the contractor and his sureties shall be responsible for such amount as shall be awarded by the courts. A contract, vacated or annulled as above described, may be relet by the president of the board to another contractor without advertisement or another formality." Under section 9 of to section 9 or to any of its stipulations. The extension of time to May 31, 1905, was not inconsistent with the right of the board under said section to withhold estimates in case the contractor failed to prosecute the work with the vigor necessary to its completion within the time stipulated. The amendments did not affect the obligation of the contractors to complete the work as soon as practicable. The stipulation as to a further extension was subject to the proviso that the contractors "will use every effort possible to complete the construction of said levee at the earliest date possible." The agreement recites that, up to May 11, 1904, the contractors "had made every reasonable effort" to complete the original contracts. The amendments necessarily imply the obligation of the contractors to use every possible effort to complete the levee at the earliest date possible. the original contracts the obligation of the contractors was to prosecute the work with the vigor necessary to its completion within the time stipulated. There is no prac tical difference between such an obligation and one to use "every effort," or "every possible effort," to complete the work as soon as practicable. Section 9 was cove"Dowdle & Windette shall be given an ex- nanted in order to coerce due diligence in tension of time in which to complete the con- the prosecution of the work, so as to insure struction of said levee, which extension of time its completion within the time specified. Unshall be to May 31, 1905, provided that the said board obligates itself to grant a further der the contracts as amended the contractors extension of time to said Dowdle & Windette, undertook to complete the work on or beif same be desired by them, provided the said fore May 31, 1905. The stipulation as to a Dowdle & Windette make arrangements with the said board, and to the satisfaction of the further extension was intended to provide board, concerning the payment of such taxes as for the contingency of a failure to complete may be owed for the year 1905, by parties in the levee after the use of every possible or that portion of the district where the levee shall reasonable effort on the part of the contracnot be in process of construction or completed." "The Board The contractors having failagree to pay to Dowdle tors to do so. & Windette the twenty per cent. heretofore re-ed to exercise the diligence in the prosecutained on all previous estimates, less the sum tion of work required by the contract as of twenty-five hundred dollars, to be retained amended, their contingent right to a further as hereinafter provided, and the said board further agrees to pay Dowdle & Windette the full one hundred per cent. of all further work, payable each month; but said payments shall not be construed as a final acceptance or evidence of the completion of said work." In May, 1904, the three levee contracts of date October 16, 1902, were amended as follows: * "The said Dowdle & Windette agree that said sum of twenty-five hundred dollars retained out of the twenty per cent. of their past estimates, shall be retained by the board to be used according to its discretion; it being the intention of said board to use said funds in adjusting the taxes in that portion of the district below the lower line of the Bohemia plantation, where the levee shall not be in process of construction. extension expired. The case stands, therefore, as if no stipulation for a further extension had been made, and comes clearly within the letter and spirit of section 9 of the original contracts. That section was in. tended to give the board a remedy for unnecessary delay in the prosecution of the work, which it would not have had under the general laws of the state relative to conventional obligations. The conventional remedy provided in section 9 was stipulated for the purpose of insuring the speedy construction of public levees designed for the protection of the lands of the levee district from overflow. It is not reasonable to suppose that the board had the slightest intention of waiving this remedy, so necessary to insure the speedy construction of the levee work covered by the contracts. We may say, in conclusion, that the board acted in the most liberal spirit in dealing with the contractors, who had defaulted on the orig. inal contracts. Instead of resorting to the board gave the contractors an extension of police fund, whereby the receiver bound time, and waived its contract right to retain himself to pay him (plaintiff) 20 per cent. on 20 per cent. of the estimates. the amount recovered on these Metropolitan warrants. It is therefore ordered that the judgment below be reversed, and it is now ordered that the exception of no cause of action filed by the defendant surety company be overruled, and that this cause be remanded for further proceedings according to law; said defendant to pay all costs below occasioned by said exception and the costs of this appeal. (129 La. 519) No. 19,068. LOUQUE v. DEJAN. In re LOUQUE. (Supreme Court of Louisiana. He (relator), as an attorney, recovered a large amount for the different holders of these warrants. The amount received of that fund by defendant, Mrs. Dejan (one of the respondents here), was $4,997.76. Relator alleges, in substance, that defendant owes him in an amount equal to the difference between the 25 per cent. she agreed to pay according to contract and the 20 per cent. he received from the receiver. It results that the amount he claims as due is $249.88; that is, 5 per cent. on the amount she received. Plaintiff's contention is that, if it had not Oct. 30, 1911.) been for his discharge by defendant as at(Syllabus by the Court.) torney, he would have received 25 per cent., ATTORNEY AND CLIENT (§ 76*)-EMPLOYMENT instead of 20 per cent., and that she is -REVOCATION. therefore liable to him in damages to an amount equal to that before stated. An attorney at law, employed for an indefinite period and for a contingent fee, is a mandatary, whose power is revokable, as it is not coupled with an interest in the cause of action; and the principal may terminate the relationship of attorney and client at will. [Ed. Note.-For other cases, see Attorney and Client, Dec. Dig. § 76.*] The defendant, in the district court, filed an exception of no cause of action. The judge of the district court (a careful, conservative and painstaking judge) maintained the exception. Action by Charles Louque against Widow peal, in a well-prepared and thoroughly conOn appeal, the Judges of the Court of Ap Josephine Dejan. Application by the plain-sidered opinion, sustained the judge of the tiff for certiorari or writ of review. Judgment recognized as correct, writ nisi recalled and discharged, and relator's demand denied. John Wagner, for applicant. Chas. J. Théard and Delvaille H. Théard, for respondent. BREAUX, C. J. This was an action brought by plaintiff to recover an amount for services as an attorney at law. The defendant, in the year 1882, employed plaintiff to collect certain Metropolitan police warrants, of which she was the owner. The contract of employment was in writing. She was to pay 25 per cent. on amount collected, and pay no costs. Plaintiff brought suit accordingly in the United States Circuit Court, entitled Goldstein v. City of New Orleans. We take it that this was a test case. Part of the proceedings, involving the right to recover these warrants, were conducted in the Supreme Court of the United States. Defendant (plaintiff avers) notified him not to proceed further, thereby prohibiting him from completing his contract. She employed other counsel. Relator alleged that, to the end of minimizing the damages, he entered into an agree district court. for a writ of certiorari. The case is before us on relator's demand Plaintiff's contention was that his contract could not be prejudicially revoked, as he had acquired the right, within a reasonable time, to prosecute the action. That the time within which the services were to be rendered was understood, and the amount of the fees fixed. exception of no cause of action, is that the Defendant's contention, in support of the employment was for an indefinite period and for a contingent fee, and that, on that account, it was revokable whenever she chose to exercise that right. That, after the contract had been recalled and rescinded, plaintiff had no cause of action for damages. In support of his claim, plaintiff argued several propositions and cited authorities. We have considered the propositions and reviewed the decisions from our point of view. The foregoing is our appreciation of the facts. Now as to the law: No question but that the lawyer has full capacity to contract, provided the contract is not in contravention of any provision of law. This proposition admits of no discussion. The next of plaintiff's contentions is not ment with the receiver of the Metropolitan as clear and convincing. It is that the case |