New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-12-12
NEKs ORLEANS REPUBLICAN, FRIDAY, DECEMBER ID 1879

uer the decision just cited they are multi.
Ties. II they are, how can the plaintiff sue
ana De sued. or be permitted to transact
business and enjoy banking privileges under
me 1ree banking acte The Workingmens
accommodation Bank failed to organize by
substantial compliance with the free
banking act of this State, never had legal
existence, and is therefore not such a cor.
poratl0n az the courts can recognize. The
exception must be maintained and the case
dismissed without prejudice to the rights of
tne alleged incorporates should they see
proper to institute suit in another form
Judge Cullom rendered the following de-
| cision:
| Henry Henricks vs.. George Robertson.-
| On the twenty-second day of July, 1869,
the plaintiff rented one-half the premises
situated on Claiborne, between Laharpe
| and st. Bernard streets, in the rear of the
| st. Bernard Market, for period of 1--WE
i years from the first of August, 1869. That
| ne rented for grocery store, ETC., and as
dwelling for himself and family. The
| lessor was fully aware of his object The
store was well stocked with Western pro.
| duce, wines and liquors and other articles
| OF merchandise, yielding him a profit of
over $4,000 annually. He represents that,
for the last few months, he was continually
| annoyed, vexed and harrassed by his les
| sor, and his (lessor's) family, who occupy
| the other half of the premises. That, with.
| out cause. they almost daily abuse and
| shamefully insult the uembars of his (peti-
tioner's) family, by the use of profane and
vulgar language calculated to injure his
feelings and his sense of propriety. That
| the improper conduct of his children in
these respects is encouraged by him through
| motives of malice, and that it is of such a
nature as to force him to relinquish his right
to the unexpired term of his lease and to
vacate the premises and thereby cause him
to lose his business That he has Ofttimes
demonstrated with the said lessor, but
| never with any effect. That, in effect, it
| amounts to violation of his part of the
| contract of rent in fact and in law, and
obliges him to sue for the annullment of it.
He alleges that these intolerable outrages
will have the effect of destroying his bust
ness and will entail upon him an actual
damage of $4,000. That if allowed to enjoy
the peaceable use OF the premises during
the unexpired term of the said lease, his
business would unquestionably yield him
net profit equal to that sum-" He asks for
$4,000 as exemplary damages, making a
total OF $4,000 He prays for the annuliment
of the lease and for judgment for $4,000
damages, with five per cent interest from
judicial demand.
To these allegations the defendant first
filed an exception, setting forth no cause of
action, which was overruled. He then filed
an answer pleading the general issue and
praying for the dismissal of plaintiffs &C
tion.
The evidence comprises about four hun
dred pages OF written manuscript. 1t es-
tablishes the fact that lease was made as
alleged-that the parties each occupied one
halt of a double tenement. That there was
cistern which stood on the line separating
the lot That water could have peen drawn
from it by each occupant without going on
the premises of the other. That there was
a plank partition wall between them,
through which each could hear the CONVEX
sations OF the other, particularly when it
was vulgar and insulting. That there were
two children, girl and boy, both of re-
markably good conduct and who were
strictly watched over, and one of whom
was promptly and well flaggelated by his
mother and father as often as they were
apprized of-his misconduct. The teacher
testified that the boy was most amiable,
silent, sedate scion. Both the ladies
proved up the most amiable characters;
such as acted well their domestic parts. and
made their neighbors know them. They
They are both shown to be "perfect women,
nobly planned, to warn, to comfort, and
command
The evidence shows that in the midst of
all this amiability, and other domestic and
social attributes of female character. their
voices on one occasion were for war, which
they waged against each other in pugilistic
style. The husbands, plaintiff and defend
ant, together with policeman, stepped up
promptly and separated them before the
rencontre amounted to more than little
face slapping. The gentlemen, although
proven by abundant testimony to have been
as mild manner'd men withal as ever scut-
tied ship or cut throat" made warlike
declarations. and one prepared for the con-
bat. The policeman, however, succeeded
in preserving the peace as to the gentlemen.
and after the ''tumult dwindled to calm"
peace resumed its mild dominion, and for
season reigned in Warsaw.
The evidence does not disclose what dam
ages the plaintiff has suffered, if any. What
he would have realized from his business,
had he been permitted to pursue it quietly
to the end of the term for which he leased
the premises, is not fair standard of dam
ages. The probabilities are that, instead of
realizing profit, he may have suffered
loss. This theory of damages has long been
established by our courts and is sustained
by sound reason.
Despite the quarrels these gentlemen and
their families INDUCED in, the plaintiffs
business is shown to have been well sus-
tanned. The evidence is about equally bal
anced as to the causes that led to the dis
turbanees between them. Plaintiffs wit
noseee-tnosc WHO KNEW anything ABOUT
them-said the defendant was to blame. |
and the defendants as unequivocally de-
clared that the fault lay at the door of the
plaintiff. The burden of proof being upon |
the plaintiff, it devolved upon him to estab-
lish the correctness of his demand by evil |
dence amounting to more than probability |
He should have made his claim certain. |
See Mummy VS.. Haggerty, Is An, 26S; Car
yer vs.. Harris, 10 An, 12l; Byrne VS.. Gray !
son, IS An, 457; l6 An, 12I; IS An. 90,
ll6. Taking the evidence as my guide, l |
am convinced that both parties are respon-
sible for the lack of harmony between |
them, and were it not that I must give |
Judgment against the plaintiff on his prayer
for the nullity of the contract OF lease I |
would condemn both parties to pay the |
costs in equal proportions. As the matter
stands there will be judgment Diminishing
plain tiffs demands, and in favor of defend
ant for COSTS