Burgess v. Katz

• Citation: 10 La.App. 355,120 So. 526
• Decision Date: 25 February 1929
• Docket Number: 10,696
• Court: Court of Appeal of Louisiana — District of US
• Parties: BURGESS v. KATZ

120 So. 526

10 La.App. 355

BURGESS v. KATZ

No. 10,696

Court of Appeals of Louisiana, Orleans

February 25, 1929

Rehearing Refused March 18, 1929.

Writ of Certiorari and Review Refused by Supreme Court April 22 1929.

Appeal from Civil District Court for the Parish of Orleans, Division "A." Hon. H. C. Cage, Judge.

Action by Transito Burgess against Phineas Katz.

There was judgment for defendant and plaintiff appealed.

Judgment reversed in part and affirmed in part.

Benjamin Y. Wolf, of New Orleans, attorney for defendant, appellee.

Puneky and Barrios and James J. Landry, of New Orleans, attorneys for plaintiff, appellant.

OPINION

WESTERFIELD, J.

Plaintiff sues for damages for the alleged unlawful entry of his home in his absence and the removal therefrom of his furniture, without his consent.

The defendant, who was the vendor of the furniture, admitted the entry of the premises and the removal of the furniture in the absence of plaintiff, but claims to have acted upon plaintiff's instructions to that effect, and with his consent. He asks for judgment in reconvention in the sum of $ 386.00, the alleged balance due on the purchase price of the furniture. There was judgment for defendant, dismissing plaintiff's suit on the main demand, and for plaintiff, dismissing the reconventional demand, as in the case of non-suit. Plaintiff has appealed.

Plaintiff purchased certain household furniture from defendant, on the installment plan for the sum of $ 593.00. He paid an aggregate of $ 207.00 on account in small weekly installments. He became involved in a personal difficulty with his brother-in-law, as a result of which the was charged with shooting with intent to kill, and in default of bail, was held for some three months in the Parish Prison, awaiting trial.

During plaintiff's incarceration and while his home, where the furniture which he had purchased was located, was unoccupied, defendant's employees in some manner effected an entrance, removed plaintiff's clothing, placed it upon the floor, and caused the furniture to be loaded on a dray and brought to the defendant's place of business. Upon plaintiff's release from prison he endeavored to have the furniture restored to his possession, without success. Whereupon, he consulted counsel who wrote defendant demanding that the property be returned. Samuel Katz, the son of defendant, who was associated with him in the furniture business replied as follows:

"We have yours of recent date, and in reply wish to state that this is the third letter of similar nature, each letter from different attorneys, demanding us to return to Transito Burgess some furniture which he claims we have removed from his premises without his permission, while Burgess was confined in jail.

"We are again requested to inform Burgess thru you, the same as has been asked of us by his other attornies to which we have replied that, we nor any one of our employees have ever entered his premises or removed any furniture whatsoever, and that his contention that we removed or repossessed any furniture from his premises is utterly false and unfounded. Please inform Burgess to direct his search for his furniture elsewhere, also inform Burgess that we have a claim of $ 416.00, against him for which we would immediately file suit against him, but in our opinion a judgment against Burgess would do us little or no good as he has no visible assets, therefore, we prefer to drop this matter and spend no more money suing Burgess. However, if he could furnish us with any information as to the whereabouts of the merchandise in question, we would be glad to take this matter up with him and see what could be done in connection with recovering this furniture.

"Trusting that you will inform your client accordingly we, are,

Yours truly,

Katz Furn. Co.

per--Sam'l. Katz."

On the trial of the case, the defendant Katz attempted to repudiate the authority of his son to act for him in the matter and the son, the author of the letter, claimed that the letter referred to other furniture than that which had been removed from plaintiff's home. But, when asked whether any other furniture had been bought by plaintiff, replied in the negative. The elder...