ance.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. 88 420-423; Dec. Dig. § 129.*]

2. SPECIFIC PERFORMANCE (8 129*)-SCOPE OF RELIEF-DAMAGES.

Rev. Civ. Code, art. 1926, provides that on the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the succeeding section, and article 2486 declares that in all cases the seller is liable to damages if there result any detriment to the buyer occasioned by nondelivery at the time agreed on. Held, that the vendee was not required to elect between specific performance and damages, but was entitled in a suit for performance to recover damages.

[Ed. Note.-For other cases, see Specific Per formance, Cent. Dig. §§ 420-423; Dec. Dig. § 129.*]

3. SPECIFIC PERFORMANCE (§. 129*) — RELIEF

DEMANDED-DAMAGES.

Where, in a vendee's suit for specific performance, it appeared that on the vendor's refusal to perform the vendee retained the cash payment, he was entitled to recover as damages the amount of rents lost to him during the period when he was entitled to possession under the contract, less the interest on the payment retained.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. 88 420-423; Dec. Dig. § 129.*]

Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.

Specific performance by D. T. Manning against Heyman Cohen. Judgment for plaintiff for less than the relief demanded, and he appeals. Modified and affirmed.

Blanchard, Barret & Smith, for appellant. John B. Files, for appellee.

PROVOSTY, J. This suit is for specific performance of a contract of sale of real estate, and for damages alleged to have been suffered from defendant's failure to perform the contract. The damages consist of the rents of the property and of attorney's fees for bringing this suit; the rents being those from the 31st of July, the day on which the defendant was put in default by the formal tender of a deed for him to sign accompanied by an offer of payment, to the date of delivery of possession.

case of this kind. Fox v. Jones, 39 La. Ann. 929, 3 South. 95; Ross v. Goldman, 36 La. Ann. 132.

But we do not agree with our learned Brother below that the vendee must elect between suing for specific performance and suing for damages; and that, if he chooses the former, he cannot claim damages. Articles 1926, 2486, Rev. Civ. Code, are express to the contrary. 24 Laurent, Vente, No. 180, p. 178, says that the vendee is entitled to the damages "in all cases; that is to say, whether he sues for the resolution of the contract or for specific performance." And indeed, it stands to reason that, as announced by article 1930, a party who violates his contract is liable for the damages which his default has caused the other party. In the instant case, if plaintiff were to be given nothing more than the property itself, after having been kept out of it for one year and lost the rents of one year, he would not be given the full measure of his rights under the contract; and defendant, on the other hand, would be profiting that much from his own default and wrong. Plaintiff is entitled to these rents, terest for the same period on the $200, which, less, however, an amount equal to legal inwith the $50 actually paid, was to constitute the cash payment. Not having deposited said amount, but retained and enjoyed it, plaintiff must pay interest on it.

It is ordered, adjudged, and decreed that the judgment appealed from be amended by condemning defendant to pay plaintiff damages at the rate of $113 per month from July 31, 1908, until the date of the delivery of the property in controversy, less 5 per cent. per annum interest from July 31, 1908 on $200, the said $200 being that part of the purchase price of said property which was to have been paid cash, and was not paid, until the payment of said $200, and that said judgment be in all other respects affirmed, defendant to pay all costs.

No.

17,713. ORS et al.

(124 La. 872)

ORIENT INS. CO. v. BOARD OF ASSESS(Supreme Court of Louisiana.

Nov. 15, 1909. Rehearing Denied Dec. 13, 1909.) 1. TAXATION (§ 253*) — STATUTES-MODIFICATION OF REVENUE LAW.

Acts 1908, p. 230, No. 170, providing that notes and indebtedness and all evidence of indebtedness shall be taxable only at the situs and domicile of the holder or owner thereof, is not an interpretation, but a modification of the revenue law, having no retroactive effect.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 253.*]

2. TAXATION (8_499*)-ASSESSMENTS SUIT FOR REDUCTION-LIMITATIONS-STAY BY AGREE

MENT.

[Ed. Note. For other cases, see Taxation, Dec. Dig. 499.*]

"Mortgage_notes and indebtedness and all evthe situs and domicile of the holder or owner idence of indebtedness shall be taxable only at thereof."

[Ed. Note.-For other cases, see Taxation, Dec. Dig. 499.*]

4. TAXATION (§ 347*) — ASSESSMENTS EXCESSIVENESS-ANNULMENT IN TOTO.

An assessment being intended as such, and being such in fact, though grossly excessive, six times as large as it ought to be, is not absolutely null, on the ground of its being the result, not of exercise of judgment by the assessors as required by law, but merely of guesswork and caprice.

[Ed. Note.-For_other_cases, see Taxation, Cent. Dig. 88 581, 583; Dec. Dig. § 347.*]

Breaux, C. J., and Monroe, J., dissenting. Appeal from Civil District Court, Parish of

Orleans; E. K. Skinner, Judge.

Suit by the Orient Insurance Company and others against the Board of Assessors and others. From the judgment, plaintiffs appeal. Affirmed in part and annulled in part, and suits dismissed.

Hall & Monroe, for appellants. F. C. Zacharie (Harry P. Sneed, of counsel), for appellee State Tax Collector. Geo. H. Terriberry (Harry P. Sneed, of counsel), for appellee Board of Assessors. H. Garland Dupre (Harry P. Sneed of counsel), for appellee City of New Orleans.

PROVOSTY, J. This appeal embraces 23 consolidated suits. The plaintiffs in these several suits stand in the same category. They are insurance companies of other states and of foreign countries doing business in this state through local agents. They were assessed in the years 1906, 1907, and 1908 for money in possession, credits, and open ac counts, and are suing to have the assess ments canceled as illegal and null; or, in the alternative, reduced, as excessive. The manner in which they conduct their business in this state is the same as was that of the plaintiff in National Fire Insurance Co. v. Board of Assessors, 121 La. 108, 46 South. 117, 126 Am. St. Rep. 313, and the nullity of the assessments is claimed on precisely the same grounds as in that case, namely, that as a matter of fact the plaintiffs have no money in possession, and that the credits or open accounts in question have no situs in this state, and therefore are not taxable in this state.

Sometimes language is so plain that even legislative omnipotence cannot construe it into a different meaning from that which it plainly expresses; and that is the case with the provision of law which the court is here asked to interpret differently from what has been done heretofore. The provision is so plain as not to leave room for interpretation. The above quoted statute is a modification, not an interpretation, of the revenue law; and nothing in it indicates an intention that it should have a retroactive effect.

In so far as the suits are for reduction of

the assessments, the defendant opposes to them section 26 of the revenue law (Acts 1898, p. 360, No. 170), which reads:

"But the action to test such correctness shall be instituted on or before the first day of November of the year in which the assessment is made."

The suits were filed in August, 1908. The assessments of 1906 and 1907 are barred therefore by said statute, unless the reason assigned by plaintiffs why said statute should not have application is valid.

It is that there was a tacit understanding between the tax officers of the state and plaintiffs, by which the officers, on the one hand, should do nothing towards the enforcement of the taxes under said assessments, and the plaintiffs, on the other hand, should take no steps to annul or reduce said assessments until the case of Liverpool, London & Globe Ins. Co. v. Board of Assessors, 122 La. 98, 47 South. 415, involving the same issue, and then pending, should have been decided. For proof of there having been such an understanding, the plaintiffs show that, when they applied to the board of assessors for a reduction of the assessments of 1907 and 1908, they were told that as the result of the said pending suit said assessments might be found to be null, and that, therefore, until said suit should have been decided, it would be waste of time and labor to consider the question of their reduction. Plaintiffs show further that no steps were taken by the tax officers to exact payment of the taxes under said assessments.

Counsel for the defendants deny that there was any such understanding, and the fact that the assessors went on and made an assessment for 1908 would go towards supporting that theory. But would an understanding of that kind amount to anything even if there was one? Have the assessors and the tax

Since that decision and others in the same sense, namely, Insurance Co. v. Board, 121 La. 1068, 47 South. 27, General Electric Co. v. Board, 121 La. 116, 46 South. 122, and U. S. Fidelity & Guarantee Co. v. Board, 122 La. 139, 47 South. 442, etc., were rendered, the

Defendant's motion for a new trial, which was verified by his oath, was as follows:

We find two bills of exception in the transcript. The first bill is to the following effect:

"Defendant was indicted September 10, 1909. Being a stranger in this community, without friends or money, counsel was appointed to represent him on the 20th or 21st of same month and case fixed for trial on 23d. September 23d case was tried, and accused was convicted by a verdict of nine to three; it having been shown by the polling of the jury that Robert Killian, one of the jurors, voted with the nine and made one of that number. An affidavit and motion for a new trial was filed September 25, 1909, about 10 o'clock a. m. Counsel for state announced that he was ready for trial, whereupon counsel for defendant, understanding that the motion was to be tried on its face and the face of the affidavits attached to it, read and proceeded to argue it to the court without interference or interruption on the part of the district attorney till the argument was finished, when he announced to the court that he proposed to introduce testimony in rebuttal to the affidavits.

"The court ruling that this might be done, counsel announced that having only learned of the facts set up in said motion late in the day of September 24, 1909, and not having been able to see and talk to some of the witnesses whose affidavits are attached till the following day, he was not prepared at that time to proceed with the taking other testimony of other witnesses, and that those who had made the affidavits had not been summoned; one of them living at a distance of four miles from the courthouse. The court ruling that the case must proceed, and that the testimony on part of the accused would be limited to the swearing of the witnesses whose affidavits were attached, defendant's counsel declined to present the defend

ant's side of the case.

"The affidavit and motion for a new trial, the affidavits attached thereto with the filings on them, the indictment with the filings on it, and all the minutes of this court with reference to this case are hereto attached and made parts hereof for reference and further explanation. "As soon as the court ruled as above stated with reference to the proceedings with the taking of testimony and its limitation as set forth above, counsel for defendant asked for and reserved a bill of exceptions to the said ruling. Said motion being overruled by the court, counsel for defendant at once reserved another bill to said action. Referring to and making the foregoing statement of facts a part hereof, counsel for defendant now moves this honorable court in open court to sign this, his bill of exceptions, which is accordingly done."

Bill No. 2 declares: That counsel for defendant filed a motion for a new trial for the causes set out in said motion, which motion was specially referred to; that said motion, with the affidavits thereto, was tried in open court and overruled by the court, to which ruling counsel then and there in open court reserved a bill of exception, attaching thereto all the testimony taken on its trial

"Defendant moved for a new trial for the reasons: That he has discovered since the trial that Robert Killian, one of the jurors of the trial panel, had on more than one occasion expressed himself as being firmly of the opinion that appearer was guilty and should be punished. That he attaches hereto the affidavits of Mrs. H. C. Abell, Curtis Beaird, W. J. Ensminger, and Mack Wiggers, showing that the said Killian has given expression to such opinion and such feeling of prejudice prior to his being selected as one of the panel to try this defendant. That appearer is a very poor man not able to employ counsel or to furnish bail. That he has since a short time after the homicide been confined in the jail of the parish of Richland.

That he has no friends or relatives

in this state. That being without money, without friends, and without relatives, confined in jail at some distance from the scene of the killing, it was impossible for him to learn anything about the feeling of the members of the jury except by the examination of them on voir dire in open court at his trial. That the said Killian was carefully examined by his appointed counsel, and answered clearly and affirmatively that he had neither formed nor expressed an opinion.

"Defendant shows: That he has clearly been prejudiced by the action of said juror, because: First, the said Killian frequently visited and was well acquainted in the town where the difficulty occurred, and would therefore exercise and especially influence against him; and, second, because there were only nine jurors in favor of conviction; the said Killian making one of that number. That he had no knowledge or intimation of the feeling of the said juror against him and was surprised when he learned of his attitude and conduct after the trial. Defendant further alleges: That he should be granted a new trial for the reason that he was prejudiced by the charge of your honorable court when it was stated without proper explanation, and without any sort of qualification, that if accused had provoked the difficulty he absolutely forfeited the right of self-defense.

"That counsel for this defendant tried to have

a qualification of this charge so as to have the jury understand that, if deceased had become provoked while defendant was acting within his legal rights, he did not forfeit his plea of selfThat this charge was especially necessary in defense; but such instruction was refused. this case because the contention of defendant, sustained by his testimony, was that he should that it would be in hearing of his wife. not use indecent language so near his house fendant, for the foregoing reasons, and for the further reason that the verdict is contrary to the law and the evidence, prays that he be granted a new trial."

De

Annexed to this motion were the affidavits of Curtis Beaird, Mack Wiggers, W. J. Ensminger, and Mrs. H. C. Abell. Curtis in his affidavit declares: That about May 15, 1909, Robert Killian (one of the jurors on the jury which tried the case) expressed in his presence the positive opinion that the accused was guilty and should be convicted; that he expressed himself forcibly about the merits of the case; "that one of the expressions of said juror was that Latham was guilty and, should he be a juror, he would send him down the river."

the 8th of May, 1909, Robert Killian expressed in his presence the positive opinion that the accused was guilty and should be convicted, and expressed himself forcibly about the merits of the case, and on or about the 8th of May said:

"That Ora Latham ought to be punished for the killing of John Bowman."

Ensminger in his affidavit declared that on or about May 8 or 10, 1909, Robert Killian in his presence expressed, in the town of Winnsboro, himself, forcibly about the merIts of this case; that the said Killian said: "That if he was on the jury it would be a

hung jury."

Mrs. Abell in her affidavit declared that, on or about the 28th of April, Robert Killian expressed in her presence the positive conviction that the accused was guilty and should be convicted; that he expressed himself forcibly about the merits of this case; that one of the expressions of said Killian referring to defendant was:

"He ought to be hung, and if I were on a jury to try him I would vote to hang him."

The court charged that no person could provoke a difficulty, and create the necessity for taking life, and then plead justification in excuse, and that, where the right of self-defense was forfeited by provoking a difficulty, such right could only be regained by abandoning the difficulty and giving notice to the other party.

No objection to the charge was made, and the special charge requested was given with qualification and explanation and, the court at the time stated to counsel that the special charge would be given with such qualification and explanation, and no objection was made by counsel. The jury could not have misunderstood the charge and could not have been misled. The court appointed Mr. S. N. Dorsett, an attorney at the bar, to represent the accused, and he was assisted in selecting the jury by Messrs. C. L. Berry and A. W. Moore, who have practiced at this bar for more than 30 years.

I do not consider that the motion for a new trial has any merit whatever.

Opinion.

The question before us is whether that verdict should be set aside for the assigned

"A. No, sir.

"Q. Did you state in Winnsboro, or anywhere else, before this trial, that if you were on the jury in this case that it would be a hung jury? "A. No, sir.

"Q. Did you ever make the statement before this trial in the presence of Mrs. H. C. Abell, or any one else, that Latham ought to be hung, and if you were on the jury you would vote to hang him?

"A. No, sir; I had no conversation with Mrs. Abell in regard to this at all since it happened. "Q. Have you had any conversation with reference to this case with Curtis Beaird, Mack Wiggers, W. J. Ensminger?

"A. Well, for Curtis Beaird, I might have mentioned the case to him; but, as to the other parties, I have had no conversation with them. "Q. Did you make any statement to Curtis Beaird to the effect that Latham ought to be convicted, and if you were on the jury he would go down the river?

"A. No, sir; and to nobody else."

On the trial of the motion for a new trial, W. H. Adams testified: That he knew Mack Wiggers, W. J. Ensminger, and Mrs. H. C. Abell; that all said persons lived in Winnsboro, and all of them were in attendance in court at the trial. Adams gave no testimony as to Curtis Beaird.

jurors who voted in favor of the conviction of the defendant, was an incompetent juror for the reason that he had formed and expressed (before being accepted on the jury) an opinion to the effect that defendant was guilty of the crime charged against him and should be punished.

In State v. Nash, 45 La. Ann. 1144, 13 South. 732, 734, the same question was submitted to this court for decision. The court then declared that it considered that for the maintenance of a motion for a new trial on that ground it was essential that defendant should prove all of three facts:

(1) That the jurors were incompetent (in that case under age).

(2) That that fact was unknown to the defendant and his counsel until after verdict.

(3) That the juror was questioned as to his competency on his own voir dire and answered that he was.

The defendant, in his motion for a new trial (which was verified by his oath), declared that Killian was carefully examined by his appointed counsel and answered clearly and affirmatively that he had neither form

"The motion for a new trial is incorrect wherein it states that the court, without proper explanation, and without any sort of qualification, charged that if the accused had provoked the difficulty he absolutely forfeited the right

stantially submitted in the brief filed on be half of the state. Defendant in his motion for a new trial declared his want of knowledge of any ground for the incompetency of Killian until after the verdict was rendered.