so that his course and that of the automobile tended to converge. We find nothing to show that his course was squarely across the street. Therefore, had the defendant been duly observant, as any one using a death-dealing machine upon a public street is bound to be, he would have noticed that the course of the boy was convergent with his own, and that the boy was not paying attention. True, if the boy was running, there may have been very little time for stopping or shunting the machine; but the defendant should have been observant and allowed the child this chance for the saving of his life. Crisman v. Shreveport Belt R. R. Co., 110 La. 640, 34 South. 718, 62 L. R. A. 747. Defendant's whole attention evidently was centered upon getting an opening through the crowd ahead; he became unmindful for the moment of the danger to which he might be exposing those who, like himself, from the same cause of the excitement ahead, might be in his way upon the street. There can be no question of contributory negligence in the case. Cases of persons going upon railroad tracks have no analogy. The boy's attention was fixed upon the excitement ahead of him; as everybody else's was. He was simply following others who had just preceded him, going in the same direction. If he had thought of the matter at all, he would have had the right to assume that an automobile or other fast-moving private vehicle would not run him down. Plaintiffs claim $25,000 damages, distributed, as follows: For the loss of the society and affection of their child, and the future assistance and support they might expect to receive from him, $5,000; for the sufferings of the child, $5,000; for their own suffering, mental as well as physical, $10,000; punitory damages, $5,000. There is no evidence of the child having suffered. His skull was so badly fractured that an operation was deemed inadvisable. From this we infer that he was unconscious and insensible from the moment of the blow. Mr. Burvant testifies that the death of his boy has made "a wreck of his life"; that for nearly nine months he was "physically incapable of attending to my business, because to me life was not worth living." Mrs. Burvant is less exaggerated in her statement. She says that it made her "very nervous"; that for 15 days she was sick in bed, just getting in and out of bed, from nervous prostration. The plaintiffs are 44 and 45 years old, and the child was their youngest. How many more they had, the record does not show. Whether they were healthy, ordinarily constituted people, or of so nervous a temperament that a stroke of this kind would affect them to a greater extent than ordinary people, the record does not show. The jury, who saw them on the witness stand, allowed them $1,500. This was by a divided vote of nine for and three against. The moderation of this allowance was than culpable in this sad affair; as is in truth the case. The liability is more legal, or, we might say, technical, than moral. We realize this fully; at the same time there is a legal liability, and $1,500 is not commensurate. But if there was contributory negligence, doubtless responsive to a sentiment on their still the defendant would be responsible, un-part that Dr. Wolfe was more unfortunate der the last-chance doctrine, for had he been looking (as he was legally bound to be doing) he would have seen the boy, and seen that he was unaware of the danger into which he was going. Possibly it would, even then, have been too late; but defendant should have been sufficiently attentive to have been in a position to make the trial. One thing is certain that the boy did not know that the machine was so near. Combining the testimony of the witnesses who say that the boy was "standing" in the street with that of Mr. Galy, that, "when he found himself in front of the automobile, it looked like he fell back a little," we would conjecture that a toot of the machine attracted the attention of the boy and checked his course, and that just then he was run over. In other words, that the tooting of the machine was not continuous, as one uninterrupted blowing, but consisted of successive tootings at short intervals; and that the quickly moving machine passed from the lower to the upper side of the street in the interval between two blowings. This would account for the boy's not having heard. His not having seen is accounted for by the machine having been behind his back. The innate sense of self-preservation would have checked him, had he either seen or heard; hence, our assuming that he did The feelings of a parent, especially of a mother, on such an occasion, are not susceptible of exact computation in dollars and cents; if an estimate were attempted, it would doubtless exceed the fortune of Dr. Wolfe. The physical suffering of plaintiffs we hardly can take into consideration alongside of their so incomparably greater mental suffering. In the case of Buechner v. City of New Orleans, 112 La. 600, 36 South. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, where the court allowed $6,000, there was no question raised in connection with the amount allowed by the jury, and the court simply affirmed the verdict. In the case of Sundmaker v. Yazoo & Mississippi Valley R. R. Co., 106 La. 111, 30 South. 285, the court allowed $4,000. Considering all the circumstances of the case, we have concluded to fix the amount in this case at $3,000. It is therefore ordered, adjudged, and decreed that the judgment appealed from be increased to $3,000, and that, as thus amended, 14 hogs 56 8 50 The testimony of the lessee of a cotton plantation, in the northern part of the state, to the effect that, about October 1st, in New York, the owner agreed to buy the tenants' accounts, at their face value, up to $5,000, in order to regain possession, without litigation or delay, is insufficient to make out a case, when contradicted by July the other contracting party, and when the evidence shows that it was not known what amounts the tenants then owed, or would owe at the end of the year, and when it does not show that the accounts were ever assigned to the alleged purchaser, that the debtors were ever notified that they could discharge their debts by payment to any other than the original debtor, that the alleged purchaser collected or attempted to collect said accounts, or that the alleged seller did not, after the alleged sale, collect such of them as he could. [Ed. Note.-For other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. § 137.*] 8. SALES (8 52*)—EVIDENCE TO ESTABLISH. And so the unsupported testimony, of a lessee, to the effect that the lessor agreed, with no information save the lessee's statement, to pay him over $1,050 for peas alleged to have been purchased and planted, as a fertilizer, is insufficient for recovery, where it appears that peas had always been planted on the same land, for the same purpose, and that the property when surrendered by the lessee was in no better condition than when received by him, or than as required by his lease. [Ed. Note. For other cases, see Sales, Cent. Dig. 136; Dec. Dig. § 52.*] Appeal from Ninth Judicial District Court, Parish of Madison; F. X. Ransdell, Judge. Action by George S. Yerger against A. A. Murdoch. Judgment for plaintiff, and defendant appeals. Amended and affirmed. E. C. Montgomery and Hudson, Potts & Bernstein, for appellant. Snyder & Gilfoil (M. M. Boatner, of counsel), for appellee. Statement of the Case. 17 pigs 12 cows... 300 bu. peas & planting. 60 sacks oats, 330 bu., 54 cts. Cash handed you on train... Tenants' accounts By cash 180 00 1,050 00 178 20 148 75 30 00 $2,127 45 4,668 01 Defendant pleads the general issue, and specially denies that her agent bought the tenants' accounts, as alleged, or that he was authorized so to do. It appears that defendant was under interdiction, and that on November 22, 1904, her guardian, the Mississippi Bank & Trust Company of Mississippi (where she then lived), by written instrument, leased her plantation, in Madison parish, La., with certain reservations, to plaintiff, for one year, from January 1, 1905, at an annual rental of $6,700, for which plaintiff gave his note, payable on November 1, 1905. The lease contained, among others, the following stipulation, to wit: hereby further covenants and agrees that it will, MONROE, J. Plaintiff alleges that up to January 1, 1906, he was the lessee of defendant's "Fortune Fork" and "Banner" planta- Some time after the execution of the lease, tions; that at or about the termination of defendant was relieved of the interdiction this lease, he sold to defendant, represented and reinvested with the control of her propby her agent, W. S. Holmes, certain live erty, and in July, 1906, she appointed W. S. stock, farming implements, peas, oats, and Holmes her agent and attorney in fact, with cotton seed, and handed her cash, the whole full power of administration. It appears, amounting to $2,127.45; that he also sold, as- too, that, Fortune Fork plantation having signed, and delivered to her certain accounts, been her home, she wished to return to it, due him by tenants on said plantations, and gave some intimation to that effect, amounting to $4,668.01; that defendant has which reached the negroes, and, through made any attempt to collect the accounts. Holmes' version of the matter is that there were frequent discussions (in New York) between him and plaintiff, and two or three in which defendant participated; that plaintiff urged that he had put out a good deal of money with the expectation of renewing his lease and was entitled to reimbursement; that defendant was anxious to get her property back, without litigation or delay, and was willing to pay a few thousand dollars in order to do so; but that plaintiff was claiming very much more than the witness (to whom defendant left the settlement of the matter) was willing to advise his client to pay, particularly as he knew nothing about plaintiff's disbursements save what plaintiff then told him. He says, in his testimony: them, the plaintiff. In the fall of 1905, there- | pear that either defendant or plaintiff ever fore (say about the last of September or first of October), plaintiff went to New York, where defendant and Holmes were then sojourning, for the purpose of making some arrangement with regard to his interest; the position that he first assumed being that he had the right to avail himself of the option to extend his lease. He testifies, in effect, that, when he broached the subject, Holmes denied that he had any such right, and said that the option was not worth the paper upon which it was written, and plaintiff seems to have accepted that view of the matter and to have then offered $1,500 as additional rent for the renewal of his lease, which offer was declined. He then took the position that he could retain possession of the property for some time and give defendant trouble, in one way or another, and would do so, unless she agreed to comply with certain demands with regard to advances which he had made to the tenants and to the reimbursement of money expended by him in the purchase and planting of a lot of peas. He testifies that the matter was discussed with both defendant and Holmes, and his first statement as to the result of the discussion is as follows: "She (defendant) insisted that she was going to run the property another year, and I, very plainly, told her and Mr. Holmes that, unless they paid me the balance the negroes would owe, and for the peas I had planted, which benefited me none at all, in 1905, but I had planted them with the expectation of realizing a benefit by bringing up the land for the following year. Q. What did she agree to do, if anything? A. She finally agreed to pay for the peas and the planting, and agreed to the number of bushels, though I planted a great many more, and to pay the accounts, and for anything else that I might leave there, later on." He subsequently testifies that the agreement was, not that defendant should pay the accounts, but that she should buy them, provided they did not exceed $5,000, and he says, quite positively, that nothing else was discussed, at that time, save the questions of the termination of the lease, the accounts due by the tenants, and his claim with regard to the peas; defendant's obligation with respect to anything else having been assumed (according to such subsequent testimony) at a later period and after she had acquired possession of the property. Plaintiff admits that Holmes was, at first, wholly unwilling that defendant should pay anything in order to be restored to possession. He also admits that, upon the occasion of the alleged agreement in New York, he did not have the accounts of the tenants with him, and did not know how much they then owed, and, still less, how much they would owe at the end of the year. It does not appear that he ever made any assignment to defendant of his claims against the tenants; that the tenants were ever formally notified of the alleged change of creditors; or that their accounts on plain "As I remember it, * I would not agree to let Mrs. Murdoch agree to pay any such amount. I think it was something like $10,000 he would come out behind on the two places. * * I said that, when we made a good crop, and got ahead, and Mrs. Murdoch wanted me to, I would agree to pay a reasonable amount, if he would turn the property over without any litigation and would not bother the negroes, cattle and hogs, and stock, and would not try to move any of the tenants. Q. I will ask you, Mr. Holmes, to state whether or not there was ever any definite agreement about what you would pay, later, on these accounts, if you made a good crop? A. No. Q. State whether or not there was ever any attempt (agreement) on the part of Mrs. Murdoch to collect these accounts, and by whom it was entered into? A. I think that would be optional with her whether she wanted to do that. Mrs. Murdoch and I both felt very kindly towards Mr. Yerger and the MaxwellYerger Company, on account of favors shown to us, not only in getting tenants, but in any way he, or they, could, and we both felt very kindly to Mr. Yerger, and Mrs. Murdoch wanted him paid what he was out, in a reasonable amount.' He testifies that he considered that Mrs. Murdoch was under some moral obligation in the matter, but, whilst plaintiff insisted upon a larger amount, he (witness) always thought that $2,000 would be what he would be willing to "stand for," to be paid, when collected, upon the making of a large crop; that no definite agreement on the subject was ever reached; that he had no recollection of having agreed to pay for any peas; that such an arrangement would not be customary; that he had never heard of its having been made by others; that, as to the farming implements, he told Oaks, the manager, that they would buy everything left by Yerger that they could use, but no price was agreed on; that (some months after the conversation in New York) he ascertained from Mr. Jones (who represented defendant's then guardian, the trust company) that he (Jones) had sold plaintiff certain cattle and hogs, which he (witness) then agreed with plaintiff to buy back, though there appears to have been no identification of the animals tained $150 from plaintiff, for defendant's account, in New York, and also admits that he paid plaintiff the $100 with which the account sued on is credited, knowing that defendant owed him the $150 and also owed him something for the cattle, hogs, and implements. Counsel then said to him: "Q. I will ask if you will look up the two accounts and file copies with these papers?" To which he replied: make a copy of those two accounts." "Yes, I will have Maxwell-Yerger Company Immediately following the answer thus given, we find, on the face of the transcript, an interlineation, apparently made after the transcript was completed, reading: The witness testifies that he does not remember that any such account as that sued on was ever presented to him, or that he ever saw the tenants' accounts, save at the "store," where he "happened to look at the books to see what the various tenants owed him" (plaintiff). There is in evidence a let-W. H. Harvey, Clk." ter from the witness to plaintiff reading as follows: "July 29, 1906. "Dear George: I have not collected the money due Mrs. M-from the party in Jackson, I do not see how I can settle the account until she gins. If I can borrow some money in the meantime, I will remit, but the money is not here to make good. "Sincerely, [Signed] Wm. S. Holmes." The writer testifies that he has no recollection of the letter and does not know to what account it refers, but that there was no one in Jackson from whom he could have expected to collect an amount sufficient to pay the account here sued on. Plaintiff testifies, with uncertainty, that, as he takes it, the letter refers to the account sued on. He does not, however, produce any copies of his own letters or of the letters of MaxwellYerger Company, of which concern he was an active member, and, as the evidence shows that Mrs. Murdoch, at that time, owed an account, or accounts, to the firm, in settlement of which her agent gave a note, our conclusion is that the letter referred to that business. Mr. Holmes' relations with the defendant terminated in July, 1907, and he was succeeded in his position, as her agent, by E. C. Montgomery, who testifies that, although plaintiff spoke to him about Mrs. Murdoch's indebtedness, and though he represented that lady until March 20, 1908, he never heard of the account sued on until after this suit was filed (which was in November, 1908), and that, as Mrs. Murdoch had an unpaid account in one of the Maxwell-Yerger stores, he naturally assumed that plaintiff was referring to it; which testimony is in apparent conflict with that given by plaintiff, who says that he mailed to Judge Montgomery a copy of the account sued on. Towards the close of plaintiff's examination, we find the following: "Q. On the 21st of February, 1906, there was an item, 'cash paid Maxwell-Yerger Company, store account, $500,' on the account book of Holmes against Mrs. Murdoch, and there is another item, on the 27th day of February, 1906, in the same account of $500, 'store account.' Can you tell whether any of the items going to make up these accounts were articles charged on the account sued on?" To which the witness replied: "Witness Yerger produced the two documents, and they were filed June 12, 1909. [Signed] At the date last mentioned, the case having been submitted, the record had been in the hands of the trial judge for a month or six weeks, and we infer that he never heard of the filing of the document (there being, in fact, but one), since he does not mention any such thing in his opinion. "The two documents," as thus mentioned by the clerk, were not included in the transcript, and, some months after the appeal had been lodged in this court, plaintiff, through his counsel, applied for a writ of certiorari, alleging: "That the transcript of appeal herein filed is incomplete, in this: That on the last day of the the stand as a witness, was called on by the detrial in the court a qua, the plaintiff, being on fendant to produce a certain document, being an account of the items sued on in this cause, which he had testified was presented by him to W. S. Holmes, agent of the defendant, and which was approved by said agent by a written indorsement thereon, signed by said agent, and thereupon the plaintiff, yielding to said call, agreed to produce and file the said document, if it could be found. Petitioner shows that. subsequently, on the 12th day of June, 1909, he complied with the said call by producing and filing, in the office of the clerk of the court a qua, the said document, which was received by the said clerk and by him indorsed: 'Filed in evidence, June 12, 1909.' But petitioner alleges that, in making up the transcript of appeal herein, the said clerk omitted the said document therefrom." And the prayer is that the clerk be ordered to send up a certified copy of the document thus described, which the clerk appears to have done; the document returned by him purporting to be a copy of an account against the defendant, and in favor of plaintiff, in which defendant is charged with "300 bu. of peas and planting, $1,050," as in the account "B" annexed to the petition, and is further charged with the amounts due plaintiff by the tenants, the names of the latter, with the amounts due by each, being set forth in detail, the whole showing an indebtedness by defendant of $5,718.01, of which $4,668.01 appears to be due for tenants' accounts. Upon the face of this instrument, there appears the following: "O. K. [Signed] Wm. S. Holmes." Defendant, examined as a witness, says: "I only recall having a social conversation with Mr. Yerger. It was down in a public hall, She She positively denies having had any con- somewhat remarkable that plaintiff should versation with plaintiff concerning the ter- have paid his rent note due November 1, mination of his lease, the tenants' accounts, 1905, without making some effort to collect the peas, or any other business matters, and the $6,695.46 which he here claims. Passing denies having received from him the items on, however, to the consideration of the difof $150 and $30, in cash, for which she is ferent items of his claim, and without going charged, though she says that those amounts into the question of the authority of defendmay have been given to Mr. Holmes. ant's agent to bind her with respect to the also says that plaintiff gave her the hogs tenants'. accounts and the peas, we agree that he was leaving on the place, and that with our learned brother of the district court she returned thanks. The judge a quo re- that, as to those items, plaintiff has failed jected plaintiff's claim, as predicated upon to prove the contract relied on. Agreethe alleged purchase by defendant of the ments between outgoing and incoming lessees tenants' accounts and the alleged agreement of plantations, with respect to the debts due to pay for the peas, and gave judgment in by the tenants, are, no doubt, common enough, his favor for a balance of $1,077.45, with though they are not matters of course, and interest. Defendant has appealed, and plain- plaintiff admits that, when he took the plantiff has answered, praying for an amendment | tations in question, he assumed no obligation of the judgment. Opinion. with respect to the debts due by the tenants to his predecessor. When first testifying, he stated that he visited New York in August, A motion has been filed in this court sug-1905, and that defendant and her agent then gesting the death of the defendant and making R. N. Farrar, her executor, a party to the appeal. Another motion has been filed, alleging that the document brought up by certiorari is no part of the record; "that it is an ex parte and unsworn statement, filed without the consent of, or notice to, defendant, more than a month after the case had been tried and submitted, and while the case was under advisement; and that the clerk had no authority to receive and file same, as part of the evidence in this case or otherwise"; further alleging that the averments contained in the petition for certiorari, to the effect that said document was called for and its filing authorized, are incorrect; and praying that said document be stricken from the record and not considered. agreed to pay him the amounts due by the tenants, and also to pay him $1,050 for peas which he had planted, including the cost of planting them. Somewhat later, and after an objection had been sustained to oral testimony of a promise to pay the debt of a third person, he corrected his former statement and said that his visit to New York was made, say, in the latter part of September, or about the first of October, and that defendant and her agent agreed to pay him for the tenants' accounts; that is to say, to buy them from him, provided they should not exceed, in the aggregate, $5,000. He admits, however, that he did not have the accounts with him, and that he did not know the amount due by any one tenant, or by them all, and we infer that he would not have We are of opinion that this motion (last known the tenants, or many of them, if he above mentioned) should be sustained. What had met them. Under such circumstances, it plaintiff was authorized to file, after the sub- seems to us highly improbable that defendmission of the case, were copies of two sup-ant and her agent, who were even more in posed accounts, to be taken from the books of Maxwell-Yerger Company; the one, showing a payment to that concern, by defendant, of $500, on February 21, 1906, and the other showing payment of a like sum by defendant on February 27, 1906, and the purpose being to ascertain whether in those accounts, or either of them, defendant is charged with any of the items which go to make up the account sued on. And that plaintiff was aware that the call was for the two accounts of Maxwell-Yerger Company against defendant, and not for a copy of his account as sued on, appears evident from his answer to the request of defendant's counsel: "I will ask if you will look at the two counts and file (copies) with these papers." The answer being: the dark, would have agreed, as plaintiff testifies that they did, to pay him "for each and every one of the accounts, provided it (the aggregate account) was not over $5,000"; the more particularly as, at that time (whether early in August or about October 1st), it is not likely that the crops had been marketed, or that there had been even such partial settlement as would have enabled plaintiff, though he had been at home, to determine how he and his tenants would stand at the end of the year. To this improbability we must add the direct testimony of the parties with whom plaintiff says he contracted, to the effect that no such contract as that tesactified to by him was made, and we must add the facts that it is not shown that the accounts alleged in the petition to have been "sold, assigned, and delivered" were ever identified or assigned, that the tenants were ever notified that they could discharge their debts to plaintiff by payments to defendant, "Yes, I will have Maxwell-Yerger Company make a copy of those two accounts." Considering the case upon the basis of the |