John B. Honor Co. v. Stevedores' & Longshoremen's Benev. Ass'n

Citations

• 114 La. 361
• 38 So. 271
• 1905 La. LEXIS 468

Syllabus

<p>DEFAULT JUDGMENT — EVIDENCE—SPECIFIC PERFORMANCE — DAMAGES.</p> <p>1. The court should not, on confirmation of a default, receive or consider as evidence the testimony of a witness for plaintiff taken several days before'at chambers under an oath administered by the minute clerk, and in the absence of the defendant, when he had not been notified of the time and place of the taking of the testimony, had given no consent thereto, and no order of the court had been given in respect to the matter.</p> <p>2. Plaintiff sued a corporation, alleging that, though it had bound itself by contract to do a certain thing, it had failed so to do, and, in consequence thereof, he had suffered heavy damages. He prayed for citation on defendant, and that it be condemned to a specific performance of its contract. Should the court hold that plaintiff was not entitled to a specific performance of the contract, then and in that event it prayed for a judgment for damages. Plaintiff afterwards expressly waived his demand for a specific performance. Held, that no judgment could be rendered for the plaintiff, as the contingency upon which the alternative demand was based could not arise.</p> <p>‘'Syllabus by the Court.)</p>