ties. It is clear that the plaintiff had reached the conclusion that the power and authority conferred upon the chief engineer with his consent were bound to result disastrously to himself, and that he therefore determined to proceed no further in the premises.

There is no doubt of the fact that this lastmentioned letter was handed to the plaintiff on his return to Baton Rouge, and that the subject-matter of the correspondence was then discussed. Plaintiff denies that he refused at that interview to obey the order, but the district judge held that under the evidence the fact of refusal was established. We have examined the testimony on the subject carefully, and we do not see how the judge could have reached any other conclusion than he did. Plaintiff, by refusing to correct the grade of the pipe, clearly placed himself in the wrong, and warranted and justified the city in making the particular correction itself. The contractor could not complain of that act as per se violating the contract, and as being an undertaking by the city to take charge itself thereafter of the further execution of the work generally in lieu and place of the plaintiff. If plaintiff finally reached the conclusion that this was the immediate legal effect of this act, he erred. The re fusal by the contractor to correct the error complained of was a violation by him of his own duty. It placed the city in a position to avail itself of that fact as a ground for ousting the plaintiff from further continuance of the work; but it was for the city itself to decide whether it would avail itself of that right. It was not forced to follow that course. The plaintiff himself could not insist that it should do so, and base a legal right upon a legal fault and wrong.

The twenty-ninth section of the specifications has no bearing upon the question. The action taken by the city was not the equivalent of that called for and authorized by that section. The city engineer did not notify the contractor to discontinue his work immediately under the contract. The uncovering of the pipe and the placing of the same by the city at the proper grade left the contractor at perfect liberty to proceed with the execution of his work; but it is apparent that he had made up his mind that he could not carry out the contract under the existing terms and conditions without loss to himself. That this is so is clearly shown by the whole of his

The city was perfectly willing that he should continue his work, urged him to do so, and offered to have the claims which he advanced adjusted and settled amicably by an expert on sewerage matters; but he declined the offer. The city was guilty of no wrong towards the plaintiff, and therefore he could not, by abandoning his contract without any fault on its part, after a mere partial execution of the same, acquire a position relative to the city superior to and more advantageous to himself than he would have held had he carried the contract to completion. He cannot make a contract which, if completed according to its exact terms and conditions, would be a disastrous one, a source of profit and emolument to himself by cutting off (so far as he was concerned) the contract at some selected stage, and by so doing force the other contracting party, through no error of its own, to complete the work through other persons with a disadvantage to itself, on the contract taken in its entirety, which it would not otherwise have suffered. The city had the right to deal with the work as a whole, and to have the work fully executed at the prices fixed in the contract taken in their entirety. The city claims that such was the result of plaintiff's actions in the premises. It contends that the amounts which it has been compelled to pay to Guild & Co. to complete the sewer, added to that which it has actually paid to the plaintiff, has forced it into an expenditure greater than that which it would have been called upon to pay to plaintiff for the entire work on the terms and conditions of the contract; that the plaintiff, under same, is legally liable to it for the difference, and in due course should be made to pay the

same.

The situation of the parties towards each other, considered from this standpoint, was not attempted to be shown by the defendant, nor is the same disclosed by the record. The right to recover this alleged balance, if due, was reserved to defendant by the judgment of the district court.

The present action was prematurely brought upon the erroneous theory that the defendant had violated its contract, and that plaintiff was entitled to demand damages from the city. He did not sue for any amount which might be due him under the contract. Plaintiff's demand, in manner and form as brought, and upon the cause of action declared upon, was definitely rejected and dismissed by the district court in the judgment appealed from.

We see no error therein, and, for the reasons herein assigned, it is hereby affirmed, with costs in both courts.

(109 La. 986)

SMART v. BIBBINS. (No. 14,407.)* (Supreme Court of Louisiana. June 30, 1902.) LESION DEFINITION—ACTION FOR RELIEFVENUE.

1. Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract.

2. In actions brought for relief against lesion, the purchaser may, if lesion beyond moiety be established, elect either to surrender the property or to have the sale confirmed on paying the full value.

3. It is permissible to sue to avoid a sale for lesion in the court of the situs of the property, because the action is one in revendication of real property.

4. The adaptability of the land in question for a site for an irrigating pumping plant is one thing; its availability for such purpose another thing. If adaptability is neutralized by nonavailability, growing out of the fact that the tract is cut off from the water supply by the lands of others, adaptability counts for little or nothing in determining value.

(Syllabus by the Court.)

Appeal from Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.

Action by William G. Smart against Charles A. Bibbins. Judgment for plaintiff, and defendant appeals. Modified.

Philip J. Chappuis, for appellant. Story & Pugh and George B. Smart, for appellee.

BLANCHARD, J. Plaintiff sues to annul the sale of 64 and a fraction acres of land on the ground of lesion beyond moiety.

He made the sale to defendant in June, 1899, for the price of one hundred dollars. He now alleges the land to have been of the value at that time of $2,265.90.

He represents he was ignorant of the value of the property and was imposed upon, as to its value, by defendant.

His prayer is for the rescission of the sale, The suit was brought in the Parish where the land is situated.

Defendant, being a resident of another Parish, filed an exception to the jurisdiction of the court, ratione personæ.

His contention is the suit should have been brought in the court of his domicil.

This exception was overruled, and with reservation of his rights thereunder, defendant answered denying the lesion complained of and the averment of imposition made by plaintiff.

Should, however, lesion be found to exist, he asked for delay to decide whether to surrender the land to plaintiff and demand the return of the price paid, or to make up the just price of the sale, retaining the land.

There was judgment setting aside the sale and ordering the property restored to plaintiff, upon payment by him to defendant of the one hundred dollars, its price, with legal interest from the date of sale.

The value of the land, at the date of the sale, was fixed by the judgment at $1,294.80; and defendant was granted thirty days from

*Rehearing denied March 30, 1903.

34 So.-4

final judgment within which to decide whether to keep the property by paying that price, less what had already been paid, or to surrender it to plaintiff.

Defendant appeals.

Lesion is defined in the Code to be the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury is founded on its being the effect of implied error or imposition, for, in every commutative contract, equivalents are supposed to be given and received. Civ. Code, arts. 1860, 2589.

In sales of immovable property the vendor may be relieved if the price given be less than one half of the value of the thing sold. Civ. Code, art. 1861.

In actions brought for relief against lesion, the purchaser may; if lesion be established, elect either to rescind the sale or to have it confirmed on paying the full value. Civ. Code, arts. 1877, 2591.

Should he decide to keep the thing by making up the just price, he must pay the interest on the additional price from the day when the rescission was demanded (Civ. Code, art. 2592), not from the date of the sale itself, as the judgment appealed from erroneously holds.

The question first arising is, did the trial court have jurisdiction? Must the suit have been brought at the domicil of defendant, or was it permissible to bring it in the Parish where the land is situated?

We answer these queries as the District Judge did. His court had jurisdiction. It was permissible to bring the suit in the court of the situs of the property, because the action is one in revendication of real property. Code Prac. art. 163.

Revendication means to reclaim; to demand the restoration of.

When a vendor claims rescission of the sale he has made on the ground of lesion beyond moiety, his action is in effect one to reclaim the property; he demands its restoration to him on returning the inadequate price he has received.

The lesion being established, the purchaser may elect either to surrender the property or keep it on making up a just price. But this is at his option. It is personal to him.

Because he has this right, does not detract from the character of the action the plaintiff has brought as one of revendication of real property. See McKenzie v. Bacon, 38 La. Ann. 764; Maduel, Executor, v. Tuyes, 30 La. Ann. 1404.

Hence, the suit is in no sense what defendant's counsel claims for it; viz.:-one to compel the purchaser to elect whether he will retain the land by making up the just price, or surrender it.

The question next arising is, was there lesion beyond moiety?

This is a question of fact to be determined from the evidence.

We hold with the District Judge there was such lesion. The property was worth much more than double the price defendant paid for it-worth it at the time the sale was consummated.

But our appreciation of the evidence has not lead to the conclusion that the land was of the value of twenty dollars per acre at the date of the sale, as was held by the trial Judge.

Two-thirds of the tract is low swampy land, covered the entire year, or nearly so, with water, and the remainder is not first class tillable land suitable for the best results attainable in rice culture. Where the land is situated, is the rice-growing region of the state.

The adaptability of the tract as the site for a pumping plant in connection with an irrigating canal is conceded, but being practically surrounded by the lands of defendant and his partner and co-owner, W. H. Cary, and being cut off from the Mermentau River, the source of water supply for a pumping plant and irrigation canal, by the lands of defendant and his co-owner, it would not be available for a pumping plant except by consent of the owners of the adjoining land.

Thus, the river, which is distant a quarter of a mile from the land in controversy, could not be reached without digging a canal across the intervening lands of Bibbins and Cary. Nor could other properties in the vicinity be irrigated by means of a pumping plant located on the land in question except through canals excavated across lands owned by other people. Non constat that the plaintiff, if restored to the ownership and possession of the tract, could utilize it as a pumping sta tion by obtaining a right of passage over the adjoining lands to the river, the only source of water supply, or over adjoining lands for an irrigating canal to supply water to neighboring rice farms.

This being the situation, the consideration of the value of the land is necessarily restricted to the inquiry what were lands, of the character this tract is shown to be, worth in that neighborhood in 1899, disconnected with the idea of adaptability as the situs of a pumping plant.

Taking the whole testimony, pro and con, and averaging the same on values, ten dollars per acre would, we think, have been a good, sound price for the tract plaintiff sold defendant at the date of the sale in June, 1899.

We understand, and so hold, that defendant's appeal is from the judgment, (1), finding lesion beyond moiety and rescinding the sale because of it, and, (2), fixing the value of the land at twenty dollars per acre.

In our view, his appeal fails on the first and succeeds on the second.

The sale is held void on account of the lesion averred, and in the option defendant has of surrendering the land, or retaining it on making up a just price, that price is held

not to be twenty dollars, but ten dollars per

acre.

It is, therefore, ordered, adjudged and decreed that so much of the judgment appealed from as decrees the setting aside of the sale of the land made in June, 1899, by plaintiff to defendant and orders the restoration of the property to the possession of the plaintiff upon the payment by him to defendant of one hundred dollars with legal interest from the date of sale (with reservation to plaintiff of the right to claim rents), be affirmed.

It is further ordered, etc., that in other respects the judgment appealed from be amended so as to fix the true value of the land in controversy, at the date of the sale, at the sum of Six Hundred and forty-seven & 40/100 Dollars, instead of Twelve Hundred and ninety-four & 80/100 Dollars, and defendant is granted thirty days after this judgment becomes final within which to decide whether to surrender the property to plaintiff, or keep the same on paying said sum of Six Hundred and forty-seven & 40/100 Dollars to plaintiff, with legal interest from the date this suit was filed, February 2, 1901, less the price of one hundred dollars originally paid.

It is further ordered, etc., that the costs of the lower court be borne by defendant; those of appeal by plaintiff.

(109 La. 990)

SOUTHERN DEVELOPMENT CO. v. DUBROCA et al. (No. 14,441.) (Supreme Court of Louisiana. March 16, 1903.)

APPEAL-PARTIES.

1. The vendor called in warranty in a petitory action, even though he has taken upon himself the defense of the suit in the lower court, may restrict his appeal to the judgment obtained against him by his vendee on the warranty, and in such case he need not make the plaintiff in the main suit a party to the ap peal.

2. Anderson v. Cade, 10 La. 269, distinguished.

(Syllabus by the Court.)

Certiorari to Court of Appeal, Fourth Circuit, Parish of Orleans.

Development

Action by the Southern Company against A. V. Dubroca. The New Orleans Pacific Railroad Company was called in warranty. Judgment for plaintiff, and the warrantor appealed to the Court of Appeal, which dismissed the appeal, and it applies for certiorari or writ of review. Judgment of Court of Appeal set aside.

Lieven De Poorter (Howe, Spencer & Cocke, of counsel), for applicant. Thomas J. Kernan and Samuel G. Laycock, for respondents.

PROVOSTY, J. The Southern Develop ment Company brought a petitory action ¶ 1. See Appeal and Error, vol. 2, Cent. Dig. § 1817.

against A. V. Dubroca. The latter called in warranty his vendor, the New Orleans Pacific Railway Company. This last excepted peremptorily to the call in warranty, alleging that the sale had been made with exclusion of warranty and at the purchaser's risk and peril, he knowing the danger of eviction. The warrantor did not stop there, however, but went on and pleaded that, in case the peremptory exception was overruled, then it joined in and adopted as its own the defendant's answer to the plaintiff's suit. On the main demand there was judgment in favor of plaintiff against defendant; and on the demand in warranty there was judgment in favor of the defendant against the warrantor condemning the latter to restore the price. From the latter judgment the warrantor appealed. It did not appeal from the judgment in favor of plaintiff and against defendant. The appeal was by petition, and was limited strictly to the judgment rendered on the warranty. The plaintiff was not asked to be cited, and was not cited; defendant alone was cited. On motion, the Court of Appeal dismissed the appeal for want of proper parties, holding that the plaintiff in the main action was a necessary party to the appeal.

The matter before the court involved two litigations or cases-one between the plaintiff and the defendant, namely, the petitory action; one between the defendant and the warrantor, namely, the call in warranty. There were really two judgments-one in favor of plaintiff against defendant, and one in favor of defendant against the warrantor. The two were not interdependent, or necessarily so connected that one could not be right and the other wrong, one stand and the other fall. The second (that in favor of the defendant against the warrantor) was dependent upon the first (in favor of plaintiff against the defendant); but the converse was not true; the first was not dependent upon the second. It could

well stand while the other fell. It could be perfectly right, and the other wrong. Such being the case, we do not see why the warrantor could not appeal from the judgment in favor of the defendant without appealing from the judgment in favor of the plaintiff. It might well be that the judgment in favor of the plaintiff was so evidently correct as to make an appeal from it morally wrong, and subject the appellant to damages as for a frivolous appeal; whereas that in favor of the defendant might at the same time be so palpably wrong as to be sure of reversal on appeal. We do not see why the warrantor could not appeal from the second judgment alone, and have nothing to say with reference to the other. And that is what it did. limited its appeal strictly to the judgment in favor of the defendant. To that judgment the plaintiff was not only not a necessary party, but was not a party at all. It

It

was, therefore, not necessary to cite this plaintiff, and the dismissal of the appeal for failure to do so was error.

There is nothing opposed to this in the case of Anderson v. Cade, 10 La. 269. In that case the warrantor, who had taken upon himself the defense of the suit, appealed from the judgment as a whole-that is to say, both in so far as it condemned the defendant and as it condemned himself; but he failed to perfect the appeal as against the plaintiff by giving bond, so that the appeal remained exclusively against the defendant, who himself had not appealed. The appeal was dismissed, the court holding that by appealing the whole case the warrantor had led the defendant to believe that on the appeal he was going to continue to defend the whole suit; and that having, by appealing from the whole judgment, elected to defend the whole suit on the appeal, as he had done in the lower court, he could not shift his position, and defend only the suit against himself, thus doing an injustice to the defendant. That this was the sole ground of the dismissal of the appeal fully appears from the reasons of the court, which are as follows:

"The vendors might have avoided contesting the claim of the plaintiff on the slave, and contented themselves with denying their liability in warranty. They have, however, thought it safer to assume the defense of their vendee, and thus relieve him from the necessity of undertaking it himself. It is useless to inquire whether, on failing in the attempt to defend him, they were bound to contest the plaintiff's claim before this court. They have made their election, and the defendant was informed of it by the citation, which made him and the plaintiff both appellees. Had this been otherwise, the defendant must have considered whether it was his interest to suspend his right on the judgment he had obtained against his vendors by appealing from that of the plaintiff, decreeing the sale of the slave, which was the basis of his own. He was relieved from this consideration by the conduct of his vendors, who, having undertaken his defense in the court below, determined on continuing it in this. Through their own laches it now appears that the error which they allege the district court committed cannot be corrected. Their appeal being now dismissed as to the plaintiff, and the year having elapsed, the defendant cannot appeal. The judgment is, therefore, final both against the defendant and the appellants, through the laches of the latter. Can they now be heard in disclaiming any interest in a defense which they have assumed, and thereby relieved the defendant from the obligation of undertaking? It appears to us it is now too late. In undertaking to defend their vendee in both courts, if they have not waived any exemption from the obligation of doing so resulting from

the character in which they effected the sale, they have incurred the obligation to indemnify him from the consequences of their negligence."

In the instant case the warrantor carefully avoided doing what in that case was made the basis of the judgment of the court in dismissing the appeal. He distinctly restricted his appeal to the judgment on the warranty, thereby giving the defendant full warning that the judgment on the main demand was to be left to stand, and affording defendant full opportunity to prosecute a separate appeal if he thought advisable to take one.

The judgment of the Court of Appeal dismissing the appeal is set aside, and the case is remanded to be proceeded with according to law.

If,

1. The testator provided in his will as follows: "Should my wife die, I want her portion to go to my daughter. Should my daughter die, I want her share to go to my wife." If by this he meant that, in case one of his legatees died before he did, the other should take the entire estate, the will is irreproachable. on the contrary, he meant that at the death of the legatee first dying the other should take the estate, the will contains a prohibited substitution, and is null. The scale hanging even between these two interpretations, it is made to preponderate in favor of the validity of the will.

2. Under a prayer for the nullity of the will on the ground that the disposable portion is exceeded, the court may decree a reduction to the disposable portion.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.

In the matter of the succession of Eugene May. From a judgment establishing the will, the proponents of nullity appeal. Affirmed.

Edward James Thilborger and John J. Finney, for appellants. James McConnell, Jr., for appellees.

PROVOSTY, J. The following will of the de cujus is said to contain a substitution, and to be null:

"New Orleans, April 9, 1894.

"As I am about to leave the city for a short time, I have concluded in the event of accident to make this my olographic will:

"I appoint without bond as my executors my faithful friends, Geo. W. Booth, Thos. McC. Hyman, and Isodore S. Richards.

"I bequeath to my daughter, Mattie May, whose mother was my first wife-Victoria N. Richards-and to my present wife: Mattie L. Cunningham, all of which I die possessed; they to share alike, i. e., one half to each, except I want enough reserved to support my mother during her life time. Should my

wife die, I want her portion to go to my daughter, Mattie May. Should my daughter die, I want her share to go to my wife. "My drug store, No. 93 Canal, I want sold to the best advantage without delay. "I ask each of you three gentlemen to personally look after the comfort of my child. "[Signed] Eugene May."

This will is valid or not, according to the interpretation that is placed upon the clause, "Should my daughter die, I want her portion to go to my wife. Should my wife die, I want her share to go to my daughter." If this clause is made to mean, "should my daughter," or "should my wife, die before I do," the will is valid. If it is made to read "at the death of my daughter" and "at the death of my wife," the will contains a prohibited substitution, and is null. A provision by which a second legatee is to take at the death of the first is a substitution. Read this will and ponder over it as we may, and no answer comes to the question which of the above meanings was intended by the testator. From the opening sentence of the will one would infer that the instrument was merely intended as a temporary affair, to bridge over the short absence of the testator from the city; and from this a shrewd conjecture might be formed that the uncertain event with reference to which the testator used the subjunctive "should" was the death of that one of the two legatees who should die first; but this would be a mere conjecture, and might be wrong.

The proponents of the nullity assimilate the case to those where, as in the Harper Case, 2 La. Ann. 377, the legacy was to a second legatee in case the first died without issue. But the cases are fundamentally different. In those cases the event on the happening of which the legacy was to pass to the second legatee was known. In the instant case the whole difficulty lies in the ascertainment of this event-whether it was to be the death of the testator himself or that of the legatee who should first die.

Finding no means of solving this doubt, the court must obey the injunction of article 1713, Civ. Code, and make the scales preponderate in favor of the validity of the will. Succession of Meunier, 52 La. Ann. 85, 26 South. 776, 48 L. R. A. 77.

The nullity of the will is asked on the further ground that the legacy to the wife exceeds the legitime. This is ground for reduction, not for nullity (Civ. Code, art. 1752; Gueydan v. Montagne [La.] 33 South. 61), and the judgment of the district court made the proper reduction. But it is contended that, the prayer being only for nullity, and there being no prayer for reduction, the court cannot decree reduction, but must reject the demand entirely. On the principle that the greater includes the less, reduction may be decreed under the prayer for nullity. Gueydan v. Montagne, supra.

The judgment appealed from is affirmed.