STEPHENS, J.
On June 17,1927, the plaintiff, Sarah Davis Dickens, purchased a sewing machine from the defendant, the Singer Sewing Machine Company, Inc., for the price of $92; said amount being credited at the time of the sale with $15, of which $5 was paid in cash and $10 was an allowance on an old machine owned by the plaintiff and delivered to the defendant. Thereafter, from time to time, the plaintiff made payments to the defendant aggregating $66, which left a balance due on the purchase price in April, 1930, of $11. At that time the machine was in the home of Ada Lewis, who was holding it for rent due by the plaintiff in the sum of $12; the plaintiff being temporarily absent. Upon learning of these facts, the defendant, -through its agents, informed Ada Lewis that the machine had not been paid for and therefore.could not be held for ber rent, but that they would pay her $5 thereon if she would permit them to take the machine, as it would cost that much to seize it. She agreed to this and the agents paid her the $5 and took possession of the machine.
Upon plaintiff learning of these facts, she requested the return of her machine, but was informed, according to her testimony, that it had been sold; and that the amount she had paid on it had been lost to her.
On April 16, 1931, the plaintiff instituted this suit, alleging that she was a seamstress, and that due to her being unlawfully deprived of the possession and ownership of her machine, she had suffered damages in the sum of $400, for loss of earnings for 40 weeks at $10 per week; $350, for the invasion and violation of her constitutional rights; and $81, which she had paid on the purchase price of the machine. She prayed for judgment for said amounts.
The defendant filed an answer in which it set up that it did not sell, but leased, the machine to plaintiff; and that contrary to the contract of lease, the plaintiff brought the machine from Crew Lake, in Richland parish, La., to Ouachita parish, La., where she abandoned it in the home of Add Lewis; that it bought the rent claim .of Ada Lewis, and having become subrogated to her rights and interest therein, removed the machine to its storeroom, where it still remained.
In the alternative, the defendant reconvened for the sum of $14, the alleged balance due it on the machine; and for the $5 paid to Ada Lewis on the rent.
On the day of trial, the defendant filed an exception of no cause or right of action, which was overruled by the court.
The trial resulted in a judgment ordering the defendant to return the machine to the plaintiff, and awarding her $50, as damages, less the amount of $11, which was held to be the balance due on the purchase price.
The defendant appealed and the plaintiff answered the appeal, praying for judgment in the amount sued for.
The exception of no cause or right of adtion is founded on the proposition that the .allegation in the petition that plaintiff was formerly the wife of George Dickens “but is now living separate and apart from him,” is an insufficient statement of plaintiff’s marital status, and that as there is no allegation in the petition of a legal separation, if a cause of action existed it was in the husband, the head of the community, and not the plaintiff.
The exception, while designated an exception of no cause or right of action, is in fact one of want of capacity to sue and stand in judgment; and came too late, as it was filed after issue joined. It should have been filed in limine litis, and was correctly overruled. Code of Practice, art. 333; Campbell v. N. O. City R. R. Co., 104 La. 183, 28 So. 985; Gualden v. K. C. S. Ry. Co., 106 La. 409, 30 So. 889.
The contract relating to the machine was one o-f sale, which vested the title thereto in plaintiff immediately upon its consummation. It is- labeled a lease in-large printed letters, and is written in the terms of a lease, but is clearly the usual form of conditional sale, with retention of title in the vendor, [298]*298which the courts of this state have repeatedly construed as an unconditional sale.
The receipt given to plaintiff at the time the contract was executed, reads:
“Received from Sarah Dickens Fifteen dollars on account of written Contract No. Sale.”
And on the reverse side of that receipt is the following:
Free access — add to your briefcase to read the full text and ask questions with AI
STEPHENS, J.
On June 17,1927, the plaintiff, Sarah Davis Dickens, purchased a sewing machine from the defendant, the Singer Sewing Machine Company, Inc., for the price of $92; said amount being credited at the time of the sale with $15, of which $5 was paid in cash and $10 was an allowance on an old machine owned by the plaintiff and delivered to the defendant. Thereafter, from time to time, the plaintiff made payments to the defendant aggregating $66, which left a balance due on the purchase price in April, 1930, of $11. At that time the machine was in the home of Ada Lewis, who was holding it for rent due by the plaintiff in the sum of $12; the plaintiff being temporarily absent. Upon learning of these facts, the defendant, -through its agents, informed Ada Lewis that the machine had not been paid for and therefore.could not be held for ber rent, but that they would pay her $5 thereon if she would permit them to take the machine, as it would cost that much to seize it. She agreed to this and the agents paid her the $5 and took possession of the machine.
Upon plaintiff learning of these facts, she requested the return of her machine, but was informed, according to her testimony, that it had been sold; and that the amount she had paid on it had been lost to her.
On April 16, 1931, the plaintiff instituted this suit, alleging that she was a seamstress, and that due to her being unlawfully deprived of the possession and ownership of her machine, she had suffered damages in the sum of $400, for loss of earnings for 40 weeks at $10 per week; $350, for the invasion and violation of her constitutional rights; and $81, which she had paid on the purchase price of the machine. She prayed for judgment for said amounts.
The defendant filed an answer in which it set up that it did not sell, but leased, the machine to plaintiff; and that contrary to the contract of lease, the plaintiff brought the machine from Crew Lake, in Richland parish, La., to Ouachita parish, La., where she abandoned it in the home of Add Lewis; that it bought the rent claim .of Ada Lewis, and having become subrogated to her rights and interest therein, removed the machine to its storeroom, where it still remained.
In the alternative, the defendant reconvened for the sum of $14, the alleged balance due it on the machine; and for the $5 paid to Ada Lewis on the rent.
On the day of trial, the defendant filed an exception of no cause or right of action, which was overruled by the court.
The trial resulted in a judgment ordering the defendant to return the machine to the plaintiff, and awarding her $50, as damages, less the amount of $11, which was held to be the balance due on the purchase price.
The defendant appealed and the plaintiff answered the appeal, praying for judgment in the amount sued for.
The exception of no cause or right of adtion is founded on the proposition that the .allegation in the petition that plaintiff was formerly the wife of George Dickens “but is now living separate and apart from him,” is an insufficient statement of plaintiff’s marital status, and that as there is no allegation in the petition of a legal separation, if a cause of action existed it was in the husband, the head of the community, and not the plaintiff.
The exception, while designated an exception of no cause or right of action, is in fact one of want of capacity to sue and stand in judgment; and came too late, as it was filed after issue joined. It should have been filed in limine litis, and was correctly overruled. Code of Practice, art. 333; Campbell v. N. O. City R. R. Co., 104 La. 183, 28 So. 985; Gualden v. K. C. S. Ry. Co., 106 La. 409, 30 So. 889.
The contract relating to the machine was one o-f sale, which vested the title thereto in plaintiff immediately upon its consummation. It is- labeled a lease in-large printed letters, and is written in the terms of a lease, but is clearly the usual form of conditional sale, with retention of title in the vendor, [298]*298which the courts of this state have repeatedly construed as an unconditional sale.
The receipt given to plaintiff at the time the contract was executed, reads:
“Received from Sarah Dickens Fifteen dollars on account of written Contract No. Sale.”
And on the reverse side of that receipt is the following:
This receipt must be considered in determining the intent of the parties to the conr tract, and, when considered, leaves but little to the imagination. It was clearly the intent of the parties to transfer the ownership of the machine.
The Supreme Court in Grapico Bottling Works v. Liquid Carbonic Co., 163 La. 1057, 113 So. 454, 456, said:
“Hence, where the instrument, although written in the form of a Iqase, clearly shows that it was the intention of the parties to effect the transfer of the ownership of the property for a fixed price in money, denominated by them as rental or hire, the transaction will be deemed a sale and not a lease. State ex rel. Bulkley v. Whited & Wheless, 104 La. 125, 28 So. 922; Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193.”
And again in Byrd v. Cooper, 166 La. 402, 117 So. 441, 442:
“An alleged lease, in which at the end of the term the lessee is to become the owner of the thing leased, in consideration of the rent to be paid, is in fact a sale translative of the property from its very inception.”
The contention of the defendant that the plaintiff abandoned the machine, and that it therefore had the right to treat it as abandoned property, in which it had an interest, is without support by the facts and circumstances in the ease.
What constitutes an “abandonment” as relates to property has been defined many times by the courts. We quote from 1 Words and Phrases, Third Series, p. 2, the following:
“Abandonment consists of the actual relinquishment of property, accompanied by an intent to part with it permanently. Shepard v. Alden, 201 N. W. 537, 539 [202 N. W. 71], 161 Minn. 135, 39 A. L. R. 1094.
“An ‘abandonment’ is the relinquishment of a right, the giving up of something to which the owner is entitled, and must be made by the owner without being pressed by any duty, necessity, or utility to himself, but simply because he no longer desires to possess it; the giving up of a thing absolutely without reference to any particular person or purpose. Moore v. Sherman, 159 P. 966, 967, 52 Mont. 542.
“The characteristic element of abandonment is the voluntary relinquishment of ownership. whereby the thing so dealt with ceases to be the property of any person, and becomes the subject of appropriation by the first taker; it being in that respect distinguished from all other modes by which ownership may be divested. Commonwealth v. Koontz, 101 A. 863, 258 Pa. 64.”
With reference to the possession of the machine, Ada Lewis, witness for the defendant, testified that it, and a Vietrola, were left with her by the plaintiff to secure an indebtedness of $16 for rent. She quoted the plaintiff as follows:
“She told me I am going to leave. Says my machine. I will leave my machine and vic-trola here to secure you for my rent.”
After leaving these articles for security, the plaintiff paid $4 on the rent, which reduced the sum to $12, which was the amount due at the time the defendant paid $5 to Ada Lewis and secured possession of the machine.
Certainly no element of abandonment is suggested by these facts; nor can it be reasonably assumed that the plaintiff would abandon a $92 sewing machine, and a Vic-trola. She was merely making a legitimate use of her property to secure her debt.
The agents of the defendant were fully aware of the facts and conditions which existed at the time they received possession of the machine from Ada Lewis, as shown by their testimony. The possession thus obtained, without due process of law, and without the knowledge or consent of the plaintiff, was an invasion and violation of her constitutional rights, and the defendant should be held liable for such damages as resulted therefrom.
Satisfactory proof that damages were sustained in excess of the amount awarded by the trial judge does not appear in the record.
We are of the opinion that the judgment appealed from does substantial justice between the parties, and it is therefore affirmed.