See Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488; also Wheeler v. Rodriguez, 13 La.App. 97, 126 So. 715, where the case was remanded to allow amendment where defect was due to insufficiency of allegation. To the same effect are Beneficial Loan Soc. of New Orleans v. Strauss, La.App., Orleans, 148 So. 85; Messina v. Societe Francaise De Bienfaissance, La.App., Orleans, 170 So. 801; Arceneaux v. Louisiana Highway Commission, La.App., Orleans, 5 So.2d 20 and Simoneaux v. Gonzales, La.App., First Circuit, 4 So.2d 35. Moreover, the Employers' Liability Act enjoins the courts against the dismissal of claims for technicalities of procedure; it envisions that a liberal aspect be taken of pleadings and the allowance of any amendment which will aid in the ascertainment of the truth.
There is no suggestion that Hopper, or any predecessor of his, had performed similar acts. Beneficial Loan Society of New Orleans v. Strauss, 148 So. 85 (Ct. App. La.). See Kelly v. Citizens Finance Co. of Lowell, Inc. 306 Mass. 531, 532-533; Hurley v. Ornsteen, 311 Mass. 477, 482.
In some of the cases the courts permitted the amendment even after the exception of no right or cause of action had been sustained. Kunnes v. Kogos, 168 La. 682, 123 So. 122, 65 A.L.R. 706; Tulane Law Review, vol. 9, note 134; Wolff v. Hibernia Bank Trust Co., 161 La. 348, 108 So. 667; Shipp v. Bordelon, 152 La. 795, 94 So. 399; Goldman v. North British Mercantile Co., 48 La.Ann. 223, 19 So. 132; Eames v. Alexandria Contracting Co. (La.App. 1934) 154 So. 510; Faulkner v. Milner-Fuller (La.App. 1934) 154 So. 507; Penton v. Fisher (La.App. 1934) 155 So. 35; Tulane Law Review, Vol. 9, pp. 50, 51; Beneficial Loan Soc. v. Strauss (La.App. 1933) 148 So. 85; Federal Schools v. Kuntz (1931) 16 La.App. 289, 134 So. 118; Horrell v. Gulf Valley Cotton Oil Co. (1930) 15 La.App. 603, 131 So. 709; Cazeaux v. New Orleans Public Service, (1929) 14 La.App. 320, 124 So. 685; Wheeler v. Rodriguez (1930) 13 La.App. 97, 126 So. 715; Harrison v. Loyocano (1929) 12 La.App. 228, 125 So. 140; Francis v. Barbazon (1929) 10 La.App. 55, 120 So. 427; Owens v. Woods (1928) 8 La.App. 250; Cambas v. Burney (1928) 8 La.App. 206; Blake v. Jefferson-St. Charles Transfer Co. (1927) 8 La.App. 310; Harries v. Courcier (1925) 2 La.App. 134; Supervisor of Public Accounts v. Bernard (La.App. 1933) 150 So. 672; Unity Plan Finance Co. v. Green (La.App. 1933) 148 So. 297, 299; Iberville Trust Savings Bank v. City Cafe (La.App. 1933) 150 So. 95; Harris v. Louisiana State Normal College (1931) 18 La.App. 270, 134 So. 308, 138 So. 182; Self v. Great Atlantic Pacific Tea Co., 178 La. 240, 151 So. 193; James v. City of New Orleans, 151 La. 480, 91 So. 846-848; McCubbin v. Has
Furthermore, a single act of management is not enough to establish apparent authority. Beneficial Loan Soc. v. Strauss, 148 So. 85 (La.App.Orl.Cir. 1933). We can find no evidence of any act on Columbia's part sufficient to support a "manifestation" and an equitable finding of apparent authority.
We therefore hold that Mr. Graffagnino acted within the scope of apparent authority held out and acquiesced in by the defendant corporation and that Borges and his attorney, Kelsoe, had a right to rely upon his apparent authority in respect to the stock sale. Ideal Savings Homestead Ass'n v. Kerner, 208 La. 513, 23 So.2d 200 (1945); Harris v. Automatic Enterprises of Louisiana, Inc., 145 So.2d 335 (La.App. 4th Cir. 1962); Trichel Contracting Co. v. Little Creek Oil Co., 84 So.2d 874 (La.App. 2d Cir. 1956); Cothran v. Ideal Savings Homestead Ass'n, 21 So.2d 233 (La.App. Orleans 1945); Harrosh v. Fife Bros. Health Ass'n, 1 So.2d 323 (La.App. Orleans 1941); Beneficial Loan Soc. v. Strauss, 148 So. 85 (La.App. Orleans 1933). In his petition the plaintiff alleged that the stock was purchased by him on March 11, 1968, as evidenced by the transfer certificate of that date, and that "manual" delivery of the certificate was made at that time.
See Reeves v. Globe Indemnity Co., 1936, 185 La. 42, 168 So. 488 rehearing denied; also Wheeler v. Rodriguez, 1930, 13 La. App. 97, 126 So. 715, where the case was remanded to allow amendment as defect was due to insufficiency of allegation. To the same effect are Beneficial Loan Soc. of New Orleans v. Strauss, La. App.Orleans, 1933, 148 So. 85; Messina v. Societe Francaise De Bienfaissance, La. App.Orleans, 1936, 170 So. 801; Arceneaux v. Louisiana Highway Commission, La. App.Orleans, 1941, 5 So.2d 20; and Simoneaux v. Gonzales, La. App. 1 Cir., 1941, 4 So.2d 35. For the reasons assigned the judgment of the lower court is affirmed insofar as it maintained the exception filed by defendants; in all other respects the judgment is reversed and set aside, and the case is remanded to the lower court in order that plaintiff might file such amended pleadings as may be appropriate.
See Reeves v. Globe Indemnity Co., 185 La. 42, 168 So. 488; also Wheeler v. Rodriguez, 13 La. App. 97, 126 So. 715, where the case was remanded to allow amendment where defect was due to insufficiency of allegation. To the same effect are Beneficial Loan Soc. of New Orleans v. Strauss, La. App., Orleans, 148 So. 85; Messina v. Societe Francaise De Bienfaissance, La. App., Orleans, 170 So. 801; Arceneaux v. Louisiana Highway Commission, La. App., Orleans, 5 So.2d 20 and Simoneaux v. Gonzales, La. App., First Circuit, 4 So.2d 35."
31 C.J.S., Evidence, ยง 150, subsec. f, p. 841; Beneficial Loan Society of New Orleans v. Strauss, La.App., 148 So. 85; Magnolia Petroleum Co. v. Farmersville Ind. Gin Co., Tex. Civ. App. 243 S.W. 568. At any rate, from the record as a whole, there was evidence before the court from which he might have made deductions as to the relative values of the surface and mineral estates in the land.
That this rule has application in Louisiana is well settled. See Slagle et al. v. Peyton, 182 La. 358, 162 So. 12; Beneficial Loan Society of New Orleans v. Strauss et al., La. App., 148 So. 85; Harris v. H. C. Talton Wholesale Grocer Co., Inc., 11 La. App. 331, 123 So. 480. The contract sued on was not a large nor an unusual one and involved work which we have no doubt is often contracted for by such associations.
Such an amendment may be allowed after the exception is filed and even after it has been sustained. Drewett et al. v. Carnahan et al., 186 La. 243, 172 So. 6; Beneficial Loan Society of New Orleans v. Strauss et al., La.App., 148 So. 85. For the reasons assigned, it is ordered that the judgment appealed from be affirmed insofar as it maintained the exception of no cause or right of action for necessary allegations of possession in plaintiff and his authors in title; that insofar as said judgment dismissed the plaintiff's suit, the same is hereby avoided and reversed, and the case is hereby remanded to the district court to permit plaintiff to amend his petition within such reasonable time as the trial judge may fix, in order that plaintiff may set forth such facts relative to his possession of the property and that of his authors in title as he may be able to plead in that respect, and that the case be proceeded with according to law and the views herein expressed; defendant, appellee, to pay the cost of the appeal, and all other costs to await the final termination of the cause.