author: Tahiaherro, J.

text:
    John T. Moore v. Henry Howard.
    The proprietor has a right to cancel, at pleasure, the bargain ho has madej even in case the work hrt8 already commenced, by paying the undertaker the expense and labor already incurred, and such damages as the nature of the case may require.
    Where the proprietor has cancelled a contract made with an undertaker for the erection of a building, the Court will not award the undertaker the full amount ho was to receive for the entire services necessary to complete the building, but will award the amount of profit which he would make on the. contract, if completed.
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. J. W. Hardie, for appellant. T. 8. MoCay, for appellee.
   Tahiaherro, J.

The plaintiff, in the year 1862, being about to build is dwelling house in New Orleans, employed the defendant, who is an arehi* tect,-to draw:plans'and-make specifications for the building he contemplated, and also to superintend its erection ; and for these services he was to give’the defendant, in compensation, five per cent, upon the cost of building. The-defendant drew the plans and made the specifications. They were furnished the plaintiff, who placed them in the hands of T. K,. Collins, the undertaker, who, under the superintendence of the defendant, commenced the work. In the meanwhile, the plaintiff advanced to -the defendant. the sum of five hundred dollars. After the work had been in progress about two months, and the brick walls raised high enough to receive the first tier of joists, and the window and door frames and .the cornices of the main building were all cut out and in a state of advancement, the plaintiff, in view of the war then existing, and the untoward aspect of things presented, deemed it advisable to suspend the work and to- annul the building contract. This he clearly had a right to d,o under the- provisions of Article 2736 of the Civil Code, which is in these,words :

, .‘ ‘The proprietor has a right to cancel, at pleasure, the bargain he has made, even in case the work has already commenced, by paying the undertaker the expense and labor already incurred, and such damages as the nature of the case may require. ”

. The.plaintiff contends that the defendant has been more than compensated fpr any damages he may have sustained from the stoppage of the work, and he sues defendant for the recovery of the plans and drawings for the intended edifice, which are under sequestration, and moreover claims.the .restitution of two hundred and fifty dollars, which he avers have been overpaid to the defendant.

The defendant admits the contract between himself and the plaintiff in relation to the building, and that he received the five hundred dollars’ He denies that the plaintiff has absolute ownership in the “plan” sued for, and contends that the five hundred dollars received, were in part payment of the entire services he undertook to render, and not in full payment for any specific part of the same. He avers that plaintiff annulled his contract with him withoirt legal cause or fault on defendant’s part, and that by so doing, plaintiff. became responsible to him for the loss of profits he was sujected to, and this by way of special damages. Defendant shows that the contemplated building, had it been completed, would' have cost thirty thousand dollars, and that he would therefore have been entitled, under the contract, to fifteen hundred dollars whicít he claims, and deducting from that sum the five hundred dollars he received, he claims from the plaintiff, in reconvention, one thousand dollars.

The judgment of the Court below rejected the plaintiff’s claim, and rendered a decree in favor of the defendant for one thousand dollars, -with legal interest from judicial demand.

The plaintiff appealed.

In the case of Forrest v. Caldwell, reported in 5th Annual p. 221,. this Court commenting on Article 2736 of the Civil Code, said - that the rule given by the Code is broad enough to cover the loss of profits. In that case the price agreed upon for certain work to be done was $675. The sum of $175 was allowed by the Court as the damages the plaintiff had sustained, and the judgment was predicated upon the testimony o’f a witness who thought that the plaintiff might have cleared that much if he had been allowed to complete the work. In the case before us we have nothing shown as to the profits the defendant might have realized, had he continued his services until the completion of the building. The five per cent, on the cost of the building was the price to be paid for the entire services to be rendered; but we cannot consider that as the profit of which defendant was deprived. In awarding to the defendant the price of the entire services contemplated by the contract, we think the District Court was in error.

It is shown that the work done upon the building up to the time the contract was annulled cost $3,100. - The maximum valuation of the plans and drawings is $250. For his services, five per cent, on $3,100 should be allowed, viz. $155. That, with $250, the value of the drawings; makes $105.

We have no evidence before us upon which to estimate expenses or loss of profits, if any have occurred. Having advanced to the defendant $500, the plaintiff will be entitled to receive from the defendant the drawings and ninety-five dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, that the defendant’s claim in reconvention be rejected and disallowed. And it is further ordered, adjudged and decreed, that the plaintiff recover from defendant the sum of ninety-five dollars, and that the plans or drawings in controversy be, and the same are decreed to be the property of the plaintiff, and that they be delivered to him,, the defendant paying costs in both Courts. ...


source: Caselaw Access Project

author: Tauaebbro, J.

license: Public Domain

text:
    John Crowell, Receiver, v. F. J. Van Bibber & Co.
    Where a merchant furnishes goods to a party, on the faith of the verbal promise of a third person to accept a bill of exchange for the amount, and, after the goods are delivered, refuses to accept in writing :

      Held .- — That the party furnishing the 'goods can reoovor of the party who promised to accept, and tho provisions of the Act of March 18,1858, requiring written proof in certain cases, does not apply.
    Laws in derogation of the commercial law are strictly construed, and without a clearer expression of the intention of the law-making power, that the statute of 1858 is intended to restrain the commercial law in tho particular under consideration, wo are not inclined to givo the statute that interpretation. • - .
    APPEAL from tlie Second District Court of New Orleans,

      Morgan, J. Lacey & Upton, for appellant. A. Talbot and G. Roselius, for appellees.
   Tauaebbro, J.

The plaintiff, acting in the capacity of receiver of the assets of J. E. Matthews & Go., sues the defendants for $186 71, with interest thereon from the áth January, 1860, alleging that this indebtedness arose from the promise of defendants made to J. E. Matthews & Co.', in August, 1859, that defendants would accept a bill to be drawn upon them in favor of said J. E. Matthews & Go., by one Gilmore, payable on the 1st January, 1860, for the said sum of $186 71 — the price of merchandise furnished by Matthews & Go. to said Gilmore, to whom they extended the credit upon the promise of defendants to accept a bill in favor of plaintiffs in payment of the same.

The plaintiffs aver that defendants, after the goods were furnished and the bill drawn, refused to accept it in violation of their express agreement.

The defendants filed an answer containing a general denial and pray judgment in their favor, etc.

Judgment was rendered in the Court below in favor of the plaintiff, and defendants have appealed.

On the trial in the District Court, the plaintiff introduced a witness to prove the engagement of defendants to accept the bill, as set forth in the petition, and they excepted to the evidence on the ground that parol evidence is inadmissible to prove a promise to pay the debt of a third person. They made objection to the introduction of the bill or draft sued upon on the ground that they were not parties to the instrument. Against the introduction of the protest of the bill they excepted on the same ground, and also that it was inadmissible under the third section of the act of March 18th, 1858, entitled “An Act to require written proof in certain cases.”

These objections were all overruled, and the defendants took bills of exception.

The third section of the act of 1858, relied upon by defendants, is in these words : “That hereafter, parol evidence shall not be received to prove any promise to pay the debt of a third person, but that in all cases the promise to pay shall be proven by written evidence, signed by the party to be charged, or by his specially authorized agent, or attorney in fact.”

It is not clear to our minds that the promise to accept the bill is strictly a promise to pay the debt of a third person within the scope and purpose of the act recited. This suit grows out of transactions between merchants, and which are strictly of a commercial character. By the commercial law a verbal promise to accept a bill to be drawn, is binding upon the person making it, if the person to whom it is made takes the bill on the credit of such promise. Bayley on Bills, p. 167. Chitty on Bills, p. 280, et. seq.

The principal question arising here is, whether the statute of 1858 limits or restrains, in this respect, the rules and provisions of the Law Merchant? It has been the settled policy of the Legislature of this State to keep its commercial jurisprudence in harmony with that of commercial nations. New instances, we apprehend, have occurred in our legislation, of restrictions upon the -mercantile law by statutory provisions. Laws in derogation of the commercial law are strictly construed, and Without a clearer expression of the -intention of the law-making power, that the statute of 1858 is intended to restrain the commercial law in the particular under consideration, we are not inclined to give the statute that interpretation.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both Courts.


author: Howem,, J.

text:
    Voelkel et als. v. Voelkel et als.
    Where an appeal bond is not made in favor of the appellees or any obligee, the defect is fatal, and the appeal will be dismissed,,
    APPEAL from the Second District Court of New Orleans,

      Morgan, J, James Brewer, for appellant. J. Q. Bradford, for appellee.
   Howem,, J.

A motion is made to dismiss the appeal in this case, on the ground that the appeal bond is-not made in favor of the appellees or any obligee, and that the appellant, a married woman, is not authorized by her husband to apply for an appeal, or execute an appeal bond.

We consider the first ground sufficient to sustain the motion. Article 575 C. P. requires the bond to be in favor óf the appellee. No obligees are named in the bond in this case, which appears to be executed by only one of the defendants ; and the law does not presume that all the other parties are appellees. Only those are parties to the appeal whose names are inserted in the bond, and it is immaterial to inquire who filled up the blanks in the appeal bond. If by the clerk, he was the appellant’s agent, and the case is not within the Act of 1839. Robert v. Ride, 11 A. 410. 2 A. 452, 902.

Let the rule be made absolute and the appeal dismissed, with costs.


author: Labauve, J.

text:
    Lynch & Wieman v. Robert McRee.
    Whore the Court is satisfied, from the evidence, that any of the redhibitory vices existed at the time of the sale, and they became apparent within a short time after the sale, the Court will annul tho sale and decree a return of the price paid.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Glarke <& Bayne, for appellants, Hunton & Miller, for appellee.
   Labauve, J.

The plaintiffs sue the defendant to annul the sale of a slave, and for the return of the price, $950, on the ground that said slave was affected with redhibitory vice — consumption.

The Court below, after hearing the testimony, gave judgment for plaintiffs,[and the defendant appealed.

The slave was sold to the plaintiffs by the defendant, on the 24th December, 1858, for $950.

Henry Eisher (a witness) says : I knew the negro boy Frank. I saw the boy first on P. C. Bethel’s plantation, about the 1st of January, 1859. I examined the boy Frank often, and attended him on the plantation, as overseer, in January, February and March, 1859. The boy came sick on the place, and grew worse during the time he remained. I am convinced he had consumption, for he spit blood nearly all the time he was there; he could scarcely breathe at times.

Lewis Fisher, another witness, fully corroborates the above testimony.

Dr. Gillman deposes that he saw and examined the boy, on the 10th and 23d May, 1859, and examined him thoroughly at each of those dates, and found both lungs filled with tubercles and commencing to soften. I considered him in the third stage — phthisis pulmonalis. He must have been sick with said disease some eight or ten months (at least eight months). I consider the disease incurable.

Dr. R. Tussit deposes that he saw the boy Frank frequently, from the 10th and 20th May, 1859, and that he examined said boy thoroughly, and believed he had been affected with consumption for several months prior to the 1st January, 1859. He considered the disease incurable. The slave was kindly cared for while on Bethel’s plantation, and had medical treatment the whole time he was in Bethel’s possession. He further says, that he saw the boy Frank between the 1st and 10th of January, 1859, and frequently afterwards, up to the 23d May, 1859, and attended on him.

Many witnesses, on the part of the defence, have testified that they knew the said boy well; that he was healthy, robust, and showed no sign of consumption ; had no cough; no difficulty in breathing, about the time of the sale to plaintiff; this is all negative testimony, going to show that the boy had no consumption; but the testimony on the part of plaintiff is direct, positive and affirmative to the contrary. The boy had been lately brought in the State from Texas, and was sold on the 24th December, 1858, in New Orleans. Henry Fisher was overseer on Bethel’s plantation, and he says the boy came there sick about the 1st of January, 1859, and he grew worse during the time he remained. This witness was convinced the boy had consumption, for he spit blood nearly all the time he was there.

Louis Fisher, another witness, proved the same facts. The two doctors, Gillman and Tassit, examined the boy thoroughly, in May, and pronounced him consumptive. The boy was offered back to defendant, who refused to receive him. The boy died in July, 1859, of the disease of the lungs.

It is clear the boy had the consumption, and that it showed itself about the 1st of January, 1859, within fifteen days after the sale, and is presumed to have existed on the day thereof. - Act of 1834, p. 7. O. O. Arts*. 2496, 2504.

Judgment affirmed, at the cost of the appellant.


author: Hyman, C. J.

text:
    Edward Conery v. John Holmes, Recorder of Mortgages, et als.
    An. appellee in the Supreme Court cannot have the judgment altered in his favor, unless he files an answer asking such alteration, within the time prescribed by law.
    Where several mortgagees sued the purchasers of mortgaged premises, under an order of sale issued on a prior mortgage, to recover the balance over the amount required to satisfy the amount of the mortgage on which the sale was made :
    Hell3?hat the judgment of the District Court, ordering the money to be paid to the holder of the mortgage next to the first mortgage was correct.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. O. L. Bright, for appellant. H. C. Miller and B. Eagan, for appellees.
   Hyman, C. J.

P. Lafon obtained an order of seizure and sale, commanding the sheriff to seize and sell'certain lots in the city of New Orleans, to pay a debt owing by D. H. Jones to him.

These lots were mortgaged by Jones to Lafon, to secure the payment of the debt.

At the time the order was granted Jones was dead, and the proceedings were carried on against the executrix of his estate, Mrs. D. H. Jones.

At the sale under the order, plaintiff bought the lots for 14,100 50, and paid this sum to the sheriff,

The sheriff paid Lafon’s claim, the taxes, and $309 20 to the attorney of the executrix. After these payments, there was a balance in the sheriff’s hands of $1,700, which he returned to plaintiff.

Plaintiff instituted this suit, asking that the recorder be required to cancel the mortgages on the property bought by him, and averring that the sum he had in his possession was subject to the claims of the widow of the deceased Jones, and other mortgage creditors.

Those creditors had mortgages which were subsequent to the mortgage of Lafon, the seizing creditor.

These mortgage creditors answered, each claiming the sum in the possession of plaintiff. The widow, the executrix, also answered, and asked that the sum be paid to her, to be by her distributed to the creditors of the deceased J ones.

The District Judge rendered judgment, decreeing that plaintiff pay L. J. Webster, one of the mortgage creditors, the sum in his hands, $1,700 ; that, for this amount, Webster had a mortgage on the lots bought by plaintiff, and that, on the payment of this sum to Webster, the plaintiff was to be discharged from liability to the mortgage creditors of Jones, and the mortgages made by Jones in their favor to be cancelled and erased from the records of the Recorder of Mortgages.

From this judgment Elizabeth Plunket, one of the mortgage creditors, has alone appealed.

The judgment cannot be altered in favor of any of the appellees, as they have not filed answers in this Court, within the time prescribed by law, asking the reversal of the judgment because of its being prejudicial to them. C. P. 888, 889, 890.

The appellant does not contend, in the brief filed by him, that Webster had not a mortgage on the lots, which was prior to and inscribed before hers, or that he should not be paid in preference to her; but she claims that the amount due to him does not equal the sum in plaintiff’s hands, and that, therefore, the judgment of the lower Court is erroneous in allowing him to be paid-more than is owing him, to net the amount in plaintiff’s hands.

M. B. Pierce obtained judgment in the District Court against D. H. Jones.

Jones took a suspensive appeal from the judgment, and Webster was his security on the appeal bond.

To indemnify Webster for his liability as security on this bond, Jones specially mortgaged to him the lots bought by plaintiff.

The judgment appealed from was affirmed, and Webster was bound as security on the appeal bond to pay the judgment.

The judgment was for more than $1,900, and Webster compromised his indebtedness as security by paying $1,600,'and the costs, amounting to $143 05

The amount paid by Webster, as the security of Jones, exceeded the sum in the hands of plaintiff.

It is decreed that the judgment of the„District Court be affirmed, and that appellant pay the costs of appeal.


author: HoWEnn, J.

text:
    Jennie B. Holbrook, Wife of A. M. Holbrook, v. Her Husband.
    Where a wife sues her husband for alimony, alleging that he refuses to provide for her support, and, before the trial of the cause, the husband and wife are reconciled, and he is living with her and pro vides a suitable maintenance for her :
    Held:-That the husband may plead such reconciliation and compliance with his obligations at the trial, as a peremptory exception, and, if sustained,,it is,the duty of the Court to dismiss the action.
    APPEAL from the.Fourth District Court of New Orleans,

      Theard, J. J. Ad. Bozisr, for appellant. P. H. Morgan and Whitaker, Felloives & Mills, for appell.ee.
   HoWEnn, J.

Plaintiff alleges that her husband, who is a wealthy man, abandoned her on 9th April, 1865, has since been living in concubinage with another woman, and, ignoring all of his obligations as a husband, has refused to provide for her support or receive her into a common dwelling, and prayed that he be ordered to receive her “under a roof, where her dignity as a woman and a wife will not be disgraced by the contamination of his concubine, and to receive her and furnish her whatever is required for her conveniences of life, in proportion to his means and condition in life; or, in default thereof, that he be condemned to provide for her maintenance and support during her natural life, at the rate of one thousand dollars per month, and that he be condemned to pay her, during her natural life, the said sum of one thousand dollars per month in advance, commencing from the 9th day of April, 1865, as alimony, due her and payable each and every month, in future in advance. ”

The defendant answered by a general denial, and certain special defences, which it is unnecessary to state. He also set up a reconventional demand for a divorce, which was, on his motion, dismissed.

On the day fixed for the trial of the cause, the defendant filed, what he termed, a “ peremptory exception to any further proceeding being had in this case, because the plaintiff is now living as his wife with him, and the cause of action, if any there was, has become extinguished, and prays that this suit be dismissed; which was tried separately from the merits, to which the plaintiff objected, and, as shown by a bill of exceptions, asked leave to proceed with plaintiff’s evidence regularly on the merits. The Court ruled that, from the fact that the plea was a bar, if maintained by evidence, it would be an extinguishment of the action of plaintiff.” Upon hearing evidence on this exception, judgment was rendered dismissing the suit, and plaintiff appealed.

The question presented is one of practice, and is this :

Did the Court err in ruling the plaintiff to a trial of the exception, separate from the merits ; or, should the plaintiff have been allowed to introduce evidence in support of the allegations of her petition, before the defendant could be permitted to prove the fact set up in the exception as a bar to the action ?

The exception, fairly construed, means this : Admitting the allegations of the petition, the plaintiff, by consenting to live with the defendant as his wife, has extinguished her cause of action, and, in our opinion, the defendant can insist upon the trial and decision of his exception before a trial on the merits, as, if sustained by evidence, it would dismiss the suit, there being nothing left for the Court to adjudge between the parties. The object of plaintiff’s suit is to compel the defendant to receive and support her as his wife, and, in default of his doing so, to condemn him to support her elsewhere. If, before the trial of the suit, the defendant complies with the demand made upon him as a husband, he has a right to show the fact, and put an end to such litigation, if the wife could be considered as wishing a trial on the merits, under such circumstances. There is no exception to plaintiff’s right to institute such an action as this.

The evidence satisfied the District Judge that the defendant had complied with plaintiff’s demand, and that the parties were living together as husband and wife, and we see no reason to disturb his judgment.

Judgment affirmed.


author: IdsXjBY, J.

text:
    Succession of George W. Parker.
    Where the District Court, misapprehending the law, did not fix the amount of the bond at the time of granting the order of appeal, but fixed, the amount of the bond a month afterwards, at which time the bond was filed, the appellant is not blamable, and should not lose the benefit of his appeal.
    The expressions of Article 575 O. P. simply imply that the judgment, to necessitate such a bond of appeal, must bo ono in which the appellant has been competed to pay, and is not applicable where the applicant lias been compelled to pay nothing. Accordingly, a bond for costs only is sufficient for a suspensive appeal, where the fund to be divided was in the hands of the Court.
    The fixing of the amount of the bond by the Court, one mouth after the granting of the appeal, was an irregularity, and in conflict with Article 575 O. P., which requires that the amount of the bond shall be fixed when the appeal is allowed ; but it is a defect in the order of appeal, and, as was said by this Court, in the case of Dunn v. Chaffe, 10 An. 493, a defect in an order of appeal is an irregularity against which the appellant is protected by the Act of 1839, § 19, No. 53, re-enacted in 1864, No. 82, section 16.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. P. 3. Morgan and J. 3. New, for appellant. G. Pufour and Phillips á Levy, for appellee.
   IdsXjBY, J.

The appellee moves to dismiss the appeal in this case, on two grounds :

1. That the appeal bond was not executed within the time allowed by law.

2. That the bond is insufficient in amount.

These grounds will be examined together.

On the first May, 1866, a suspensive appeal was granted in open Court, returnable to this Court on the first Monday of November following, but the amount of the bond to be furnished was left blank in the order of appeal.

No bond was furnished until the 1st day of June, 1866, and then only one for two hundred dollars ; the Court below having, on that day, decreed that the one hundred and three shares of the capital stock of the Polk County Copper Company, which was matter in controversy (valued, by report of experts, at f5,225), being deposited in Court to await the final result of the suit, the bond of two hundred dollars then filed, sufficed to make the appeal suspensive.

As the judgment appealed from was not, in the language of Article 575 of the Code of Practice, for a specific sum of money, a bond for costs only is sufficient to suspend execution. The following Article, 576, cited by the appellee, refers to the estimative value of a movable of a perishable nature, as the basis of the amount of surety in a suspensive appeal bond.

In the case of Blanchin v. The Steamer Fashion, 10 An. 845, the Court said :

“The expressions of this Article (575 C. P.) simply imply that the judgment, to necessitate such a bond of appeal, must be one in which the appellant has been compelled to» pay, and do not seem applicable where the applicant has been compelled to pay nothing. ” Accordingly, a bond for costs only was held to be sufficient for a suspensive appeal, where the fund to be divided was in the hands of the Court.

The fixing of the amount of the bond by the Court, one month after the granting of the appeal, was an irregularity, and in conflict with Art. 575 C. P., which requires that the amount of the bond shall be fixed when the appeal is allowed ; but it is a defect in the order of appeal, and, as was said by this Court, in the case of Dunn v. Chaffe, 10 An. 493, a defect in an order of appeal is an irregularity against which the appellant is protected by the Act of 1839, g19, No. 53, re-enacted in 1864, No. 82, 816.

If the amount of the bond of appeal in this case could have been ascertained in the mode suggested by Article 575 C. P., that is, if the judgment had been for a specific sum of money, or for a perishable movable, as contemplated by Article 576 C. P., the circumstance that the amount was not stated in the order of appeal, would have afforded no excuse to the appellant for not filing it within the legal delay, so as to stay the execution of the judgment; but, a bond for costs only, must neoessarily be fixed by the Judge; and as he, misapprehending the requirement of Article 575 C. P., did not fix the amount of the bond ($200) on the 1st May, when he granted the order of appeal, but on the 1st June, on which day it was filed, the appellant is not blamable, and should not lose the benefit of his appeal.

It is therefore ordered, that the motion to dismiss the appeal be overruled.


author: Taliapebko, J.

text:
    T. B. Gebelin v. W. A. Hamilton & G. H. Scott.
    Where a party asks damages on the ground of being deprived of the realization of expected profits, the contemplated gains and profit must be proved, to be absolute and certain.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Hamilton <fe Scott, for appellants. Gutter & Thomas, and George S. Lacey, for appellee.
   Taliapebko, J.

The plaintiff, living in the Parish of St. John the Baptist, contracted to furnish the defendants, who are dealers in lumber, one hundred thousand cypress barrel staves, to be delivered on the bank of the Mississippi River, for the consideration of fourteen dollars per thous- and, to be paid for when delivered. A lot of staves, less than half the number contracted for, was delivered according to the agreement. At the time the staves were received, some altercation arose about their number, aud after they were removed to New Orleans by defendants, plaintiff brought this suit, averring that the number of staves received by defendants was forty-three thousand five hundred and ten, which, at the price agreed upon, after deducting one hundred and fifty dollars, advanced to the plaintiff by defendants, left a balance of four hundred and fifty-nine dollars and fourteen cents, for which he prays judgment. After trial had in the District Court, a judgment was rendered for plaintiff for the sum of four hundred and thirty-eight dollars, with legal interest from judicial demand, with privilege on the staves sequestered.

The defendants have appealed.

The defence is, that plaintiff refused and utterly failed to fulfill his contract, which required the delivery of one hundred thousand staves. They admit they received forty-two thousand, and aver that, as they were making a profit of ten dollars per thousand in the sale of the staves, they have sustained a consequent loss of five hundred and eighty dollars, from not receiving the other portion of the staves, viz : fifty-eight thousand. They plead this sum in reconvention, and pray judgment against the plaintiff for one hundred and forty-two dollars. They show that staves were worth in New Orleans, at the time of this contract, from twenty-three to twenty-four dollars per thousand, by the retail, and that the cost of transportation from the Parish of St. John the Baptist to New Orleans, was three dollars per thousand.

To be deprived of the prospect of gain can hardly be said to be positive loss. The realization of the expected profit was to be a thing of the future; its consummation might never have taken place. The contemplated gain was contingent, and not a thing absolute and certain. A fall in the price of the article might have happened before the purchasers could have disposed of the quantity of it contracted for. Many events might have occurred to lessen their profits, and even to produce loss. Where facts are shown that leave no reasonable doubt that one of the parties to a contract has really suffered loss and injury, resulting from the failure of the other to comply with his part of the obligation, the probable profit or gain, which the injured party would have derived from the contract, would be a fair measure of the damages sustained. But where, as in the present case, no reasonable grounds are shown that a real injury has been suffered, we think that damages should not be allowed.

Upon the defendants’ own showing, the plaintiff’s failure to fulfill his engagement, so far from being a cause of injury or loss to them, would be an advantage; for it would enable them to pay for the staves they did receive, by estimating an imaginary loss upon those they did not receive, and to obtain from the plaintiff, besides, the sum of one hundred and forty-two dollars. Nemo debet se locupletari damno alterius.

It is shown by the evidence that Scott, one of the defendants, offered ,to pay for the staves that were delivered, at the time he received them, taking the number at his own count, and proposing to re-count them when he reached New Orleans, and to pay for any excess there might be over his first estimate. This proposition was, in substance, again made by him, after the staves were brought to New Orleans, and after he was informed by plaintiff of his inability to furnish the full number he had contracted for. From these and other facts appearing in the record, the interpretation given to the contract by the District Judge, seems to us to be the proper one, namely, that the staves were to be paid for as they were delivered.

It is therefore ordered, adjudged and decréed, that the judgment of the District Court be affirmed, with costs in both Courts.

HoweiíL, J., recused.


author: Howekd, J.

text:
    Hoose & Victor v. L. S. Robbins et als.
    The acts and declarations of a vendor shortly before and after a sale, though out of the presence of the vendee, acknowledging and showing its simulation, are admissible against the latter to prove fraud in tho vendor; but such evidence is insufficient in itself to establish fraud in the vendee. 2 A. 480. 3N. ¡3- 22. 2N. S. 13.
    Suspicion is thrown on the transactions, but title to real property would be rendered too insecure if such evidence were allowed to invalidate authentic acts of sale, particularly where the record shows that better and more direct evidence could be adduced.
    APPEAL from the Sixth District Court of New Orleans,

      Dwplanlier, J. Geo. S. Lacey, for appellant. E. B. Eggleston, for appellees.
   Howekd, J.

On the 23d day of November, 1864, the plaintiffs, residents of New York, instituted this suit by attachment in the Sixth District Court of New Orleans, on a judgment for $2,035 99, bearing- seven per cent, interest, rendered by the Supreme Court of New York, on the 5th day of October, 1852, against Hiram Huston, Louis S. Bobbins (one of the defendants, herein) and George L. Haskell; and alleging that said Louis S. Bobbins, a resident of New York, is the real owner of a certain house and lot in New Orleans, which he purchased on 17th of August, 1859, from A. P. Cleveland, but caused the title to be put in the name of his brother, Matthew P. Robbins, of New York; and subsequently, to wit: on the 31st January, 1861, transferred by the latter to Clara Augusta, wife of said Louis S. Robbins, and by her, on 6th February, 1863, to Wm. W. Keith, of Boston, Massachusetts (the two acts recorded here on 19th March, 1863), without consideration in each case, for the purpose of concealing- it from his creditors ; prayed that said property be attached ; the said Clara Augusta Robbins and Wm. V/. Keith be made parties; judgment be rendered against the said L. S. Robbins for the sum claimed; the sale from Cleveland to M. P. Robbins be decreed to have been made for the sole use and benefit of L. S. Robbins ; the transfers from M. P. to Clara A. Robbins, and from the latter to W. W. Keith, be declared fraudulent and simulated, and said property adjudged to belong to Louis S. Robbins, and liable for his debts; and that plaintiffs have a privilege thereon for their claim and costs.

On the 7th day of January, 1865, the defendants appeared by counsel, excepted to the jurisdiction of the Court, because no property belonging to L. S. Robbins had been attached, and to the suit, because no action will lie against Keith, the owner, until after judgment has been obtained against L. S. Robbins; and answered, in ease the exceptions be overruled, by a general denial; specially denied the allegations of fraud and simulation, and pleaded the prescription of ten years and less. They subsequently pleaded the prescription of one year to the action to annul the sale of the property attached. Judgment was rendered sustaining the prescription of ten years, and plaintiffs appealed.

The first question is raised by the exceptions, and is, whether or not the defendants are legally brought into Court. They contend that no property belonging to plaintiffs’ debtor has been attached, and having no right of action against the real owner, the Court is without jurisdiction of the cause. This necessarily involves an inquiry into the title to the property which gave jurisdiction to the Court k quo, and upon which plaintiffs claim relief, and may strictly be a point appertaining to the merits ; but, if it should be found that the property does not belong to the debtor, it would be unnecessary to inquire into the other questions involved, and defendants, under their pleadings, cannot be held to be properly before the Court — their appearance being conditioned on the overruling of their exception.

It may be assumed that the evidence, to which no bill of exception was taken, shows that the sale from Cleveland to Matthew P. Robbins was actually for the benefit of Louis S. Robbins, and that the transfer from M. P. to Clara Augusta, the wife of Louis S., was without consideration, and therefore the property, as it stood in the name of Clara, really belonged to her husband, Louis S. Robbins. But we are not prepared to say, from the evidence in the record, that the sale to Keith is a simulation.

The deed is in authentic form, duly recorded, and it contains the usual clauses, including the acknowledgment of the payment and receipt of the price, and Keith has presented his tax receipts and policies of insurance in his own name. By our law lie was vested, by the act of sale, with full ownership and possession. The only evidence adduced to destroy this presumption of law and invalidate the sale, is hearsay, and consists solely of the statements of Louis S. to M. P. Robbins, out of the presence of, and not shown to be known to Keith.

M. P. Robbins says, that, in January, 1861, Louis S. expressed the fear that his ' creditors might discover that the property was merely covered by witness’s name, and caused the latter to convey it to his (Louis’s) wife, who he said would deed it to W. W. Keith of Boston, his brother-in-law, and his creditors would not be able to trace it; that he (M. P. Robbins) was not present, in February, 1863, when Clara Augusta conveyed it to Keith; but Louis S. showed him the deed after it was filled up, and said he did not believe his creditors would keep track of it. He also says that he knows that Louis always claimed it as his, and received the income from it down to the summer of 1864 ; but he derived his knowledge from Louis only, and does not, in any manner, connect Keith with it.

The acts and declarations of a vendor shortly before and after a sale, though out of the presence of the vendee, acknowledging and showing its simulation, are admissible against the latter to prove fraud in the vendor ; but such evidence is insufficient in itself to establish fraud in the vendee. 2 A. 480. 3 N. S. 22. 2 N. S. 13.

Suspicion is thrown on the transactions, but title to real property would be rendered too insecure if such evidence were allowed to invalidate authentic acts of sale, particularly where, as in this case, the record shows that better and more direct evidence could be adduced.

We are unable to declare Keith’s title a simulation, and must therefore conclude that the defendants are not brought into Court by the writ of attachment.

It is therefore ordered that the judgment appealed from bo affirmed, so far as it dismisses plaintiff’s suit, with costs.


author: Idsley, J.

text:
    R. H. Bayley, Curator, v. Thomas McKnight.
    The Court will not entertain a motion to dismiss an appeal from an order of seizure and sale, because there is no assignment of error, bill of exceptions, or statement of facts in the record.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. Roselius & Philipps, for appellant. Field & Shackleford, for appellee.
   Idsley, J.

We cannot entertain the appellee’s motion to dismiss the appeal, taken from an order of seizure and sale, for the reasons stated in the motion, viz : that there is no assignment of errors, no statement of facts nor bill of exceptions, and as the proceeding was carried on via executiva, there is no testimony in the record, except that taken to show the sufficiency of the appeal bond.

The case of Kernion v. Hawes, 17 An. 36, cited in support of the motion, is not applicable to this case; as in the former, by the certificate of the clerk, the record did not contain all the evidence, whilst in the present one, the certificate is complete. See 886, 897, C. P.

It is therefore ordered, that the motion to dismiss the appeal be overruled.


text:
    Michael Dalton v. Mrs. Widow Elizabeth Viasco and G. Weber.
    An appeal must be dismissed on motion where the transcript of the record was not filed on the return day, or within three judicial days thereafter.
    APPEAL from the Sixth District Court 'of New Orleans,

      Sowell, J. J. M. Davidson and T. W. Collins, for appellant. Roselius & Philipps, for appellee.
   Hyman, C. J.

An appeal was granted to defendants from the judgment rendered in this case against them, returnable on the last Monday of February, 1863, and the transcript of appeal was filed in this Court on the 24th day of February, 1866.

Plaintiff has filed a motion to dismiss the appeal, on the ground that the transcript of appeal was not filed in this Court on the day fixed for its return, nor within three judicial days thereafter.

Let the motion be sustained, and let the appeal be dismissed.


text:
    W. A. Elmore v. W. L. Robinson and A. R. Montgomery.
    Defendants pleaded part payment and proscription of three years, to the demand in a suit against a lessee and surety on a lease, for the rent due :

      TXeld .- — That the defences are inconsistent; that the plea of part payment is an acknowledgment that the debt is due, and interrupted prescription. *
    The surety on a lease is not discharged by the negligence of the lessor in enforcing the rent; in all cases of negligence or refusal of the creditor to act, the surety’s rerasdy is indicated and pointed out in Article 3026 G. C.
    Where the surety on a lease fails to plead discussion, to point out the property of the debtor, and to advance a sufficient sum to have the discussion effected, as required by Articles 3015, 3016 C. 0., he becomes absolutely bound in solido for the debt, and has lost all the privileges granted by law to simple sureties.
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. Buchanan Gilmore, for appellant. W. W. King, for appellees.
   Labauve, J.

This suit is brought on a lease by plaintiff to defendant Robinson, with defendant Montgomery . as surety, of a dwelling house, from the 1st October, 1861, to the 30th September, 1862, at the rate of $75 per month, payable at the end of each month.

The petition claims six months’ rent as unpaid, to wit : from the 1st April to .the 30th September, 1862.

The answer of defendants denied the indebtedness, as stated in the petition; admitted the lease ; pleaded pari payment of the rent sued for, and the prescription of three years.

The District Court, after hearing the testimony, gave judgment for plaintiff against the defendants in solido.

Montgomery alone has appealed.

The appellant’s counsel says in his brief :

“The answer of both defendants alleges, among other matters, which need not be noticed :

“1. Part payment; and, 2. Prescription of three years. No proof of payment was offered by one co-defendant, Mr. Bobinson, on the trial of the cause below, and it may, therefore, be considered as abandoned. The plea of prescription is the only serious defence in the cause.”

The debt is prima facie prescribed, except the last month’s rent. It devolves on the plaintiff to show that this prescription has been suspended or interrupted by means recognized by the law.

Prescription ceases whenever the debtor acknowledges the right of the person whose title he prescribed. C. C. Art. 3186. So it has been repeatedly decided that the partial payment on the debt, was an acknowledgement of the debt, and interrupted prescription; it is not an open question. The defendants, having pleaded part payment of the rent sued for, admitted that the balance was due, and thereby destroying the presumption of law that the whole debt was paid. C. C. Art. 3515. The case would be different if they had pleaded payment of the whole debt; it would be nothing more than the law presumes ; in that ease there would be no acknowledgment of any part remaining due. The plea of prescription must be overruled.

The defendant further contends, in his brief, although no plea of that kind is found in his answer, that as surety he has been discharged by the act of the plaintiff, by leaving the city in May, 1862, and remaining absent during the whole time the lease endured, without making any attempt to collect any rent from Bobinson, etc. In the record, there is no act of the plaintiff shown which prevented the defendant from being subrogated to all plaintiff’s rights, and the plaintiff’s mere forbearance or delay in enforcing his rights, did not discharge the appellant. Civil Code, Article 3030. Parker v. Alexander, 2 An. 188. In all cases of the silence of the creditor to act, the surety’s remedy is indicated in Art. 3026 of the Civil Code,

The appellant further contends in his brief, but not in his answer, that he has not bound himself in solido with Bobinson, and that the judgment condemning him (the appellant) in solido is clearly wrong.

The appellant having failed to plead discussion, to point out property of the debtor, and to advance a sufficient sum to have the discussion effected, as required by Arts. 3015, 3016, of the Civil Code, lost all the privileges granted by law to simple sureties and became absolutely bound; even if the appellant had pleaded discussion, his failure, to make an actual tender of any specific sum to effect it, would have deprived him of that plea. Robechot v. Folse, 11 La. R. 136.

It is therefore ordered and decreed, that the judgment appealed from be affirmed,' with costs.


author: Hvman, C. J.

text:
    Auguste Lesseps v. Charles G. Ritcher, Daniel Hickok, Intervenor.
    The lessor of a plantation has no privilege on sugar and molasses manufactured for third parties on the plantation, from cane belonging to such third person, grown on another plantation, and who simply used.the sugar-mill on lessee’s plantation to manufacture his cane into sugar and molasses.
    Where property of a third person is seized by virtue of a writ of provisional seizure, and at the time of seizure is coijfused with property belonging to defendant, and the entire property is sold, and the money paid into Court to await the result of litigation, the thir.d party having no opportunity to effect a separation of his property : ~

      Held .---That the party so having his property sold, -without authority of law, is entitled to recover from the proceeds in Court the amount which his property is established to have been worth.
    PPEALfrom the Sixth. District Court of New Orleans,
    Duplantier, J. P. II. Morgan and J. H. Pew, for appellant. Marr & Fouie, for appellee.
   Hvman, C. J.

On the first of February, 1865, plaintiffs, Augusté Lesseps and Alexander Lesseps, leased to defendant a plantation for $36,000.

A part of the rent having been paid, they brought suit against the defendant to recover of him the remainder owing them, and ten per cent, thereon, (the attorney’s fees agreed to be borne by defendant in the contract of lease, on the condition that it became necessary to institute suit for the recovery of their claim), and, they also caused to be provisionally seized, under a writ of provisional seizure, twenty-nine hogsheads of sugar and fifty-two barrels of molasses, having alleged that they had the lien and privilege on the same to secure the payment of their claim.

Daniel Hickok intervened in this suit, and claimed to be owner of nineteen hogsheads of the sugar and thirty-seven barrels of the molasses, seized as aforesaid, denying the alleged privilege on this part of the sugar and molasses seized, and asking to be decreed owner thereof.'

The parties agreed that all the sugar and molasses seized should be sold by the sheriff — the intervenor reserving his right to the proceeds of the sale of the property claimed by him.

The sheriff sold the property. The sugar brought $4,117 82, and the molasses brought $5,420 14.

The District Judge rendered judgment in favor of plaintiffs, against defendant, for $18,000, ten per cent, thereon for attorneys fees, with interest and costs of suit; decreed that the intervenor was owner of the nineteen hogsheads of sugar and the thirty-seven barrels of molasses' claimed by law, and that he was entitled to the proceeds thereof, which he declared to be $3,888 70 ; decreed that plaintiffs had no privilege on the sugar and molasses owned by intervenor, but that they had a privilege on the other hogsheads of sugar and barrels of molasses, caused te be seized by them.

He further decreed, that the proceeds of the sugar and molasses belonging to the intervenor should remain in the custody of the sheriff until he decided what proportion of the outstanding cost and charges should be borne by the intervenor.

From this judgment plaintiffs have appealed.

On the 25th day of December, 1865, all of the sugar and molasses seized was on the plantation leased by plaintiff to defendant, and was seized under said writ, on the 28th December, 1865, in the city of New Orleans.

The lessor has, for the payment of his rent, the right of pledge on the movables of his lessee, which are on the .property leased. O. O. 2675. And this right continues even after the movables are taken away from the leased property, if within fifteen days after they are removed, the lessor exercises his right, and they continue to be owned by his lessee, and can be identified. C. O. 2679.

This right of pledge exists under certain circumstances, on the personal property of third persons, while the same is on the leased property ; but '• ceases, if before the lessor exercises his right, the personal property be removed from the property leased. C. C. 2677.

If therefore the sugar and molasses claimed by intervenor belonged to defendant at the time the same was removed from the plantation let by plaintiffs to defendant, and so continued to belong up to the time of seizure, there can be no doubt that plaintiffs have the lessor’s privilege on the same as they exercised their right within fifteen days, after the same was removed from the leased property. If, on the other hand, the defendant had transferred the sugar and molasses to intervenor, or if the same belonged not to defendant while on the leased • plantation, but to the intervenor, he is entitled to recover his property (the sugar and molasses claimed by him) or its proceeds, unincumbered by any claim set up by plaintiffs.

It is proven that the cane converted into the sugar and molasses, claimed by the intervenor, was grown by him on a plantation cultivated by him, that the cane was taken therefrom, carried to the plantation leased by plaintiffs to defendant, for the purpose of manufacturing it into sugar and molasses, and was manufactured there into sugar and molasses, under the direction of his overseer, by his and defendant’s employees; that intervenor compensated the defendant for the use of his sugar mill and his employees; that the nineteen hogsheads of sugar and the thirty-seven barrels of molasses, thus manufactured, were shipped by his overseer to New Orleans, and was in his agent’s possession when seized.

The sugar and molasses produced by the manufacture of intervenor’s cane, was his property, and on this property plaintiffs had no privilege to secure the payment of rent owing by defendant to them after the same was permitted to be removed from the plantation, without hinderance or process on their part to secure their alleged right of privilege.

The facts proved in this case exempt us from the necessity of deciding -whether or not the plaintiffs had a privilege on intervenor’s sugar and molasses when .the same was on the plantation leased by him to defendant.

The plaintiffs contend, that, as all of the hogsheads of sugar and the barrels of molasses seized, had the same mark when brought to the city, and that as the intervenor had not identified the sugar and molasses belonging to him, he cannot recover.

There is no proof that the intervenor caused the hogsheads and the barrels to be so marked as to prevent their indentity ; but there is proof that he had separated his sugar from that of defendant, and while thus separated, the plaintiffs made their seizure of his and defendant’s sugar and molasses, and thereby prevented him from having control of his property to prevent confusion. They placed it in the hands of the officer of the law, who knew not the difference that was between the hogsheads of sugar and the barrels of molasses belonging to intervenor,- and those of defendant, and the officer sold all without making any distinction in the property seized.

The want of proof of identity was principally caused by plaintiffs themselves in making their seizure, and we know no good reason why the intervenor, who has found that such a quantity of his property has been seized by plaintiffs without authority of law,- should not get that quantity or the proceeds of the sale of the same, especially when the evidence is, that the hogsheads of sugar belonging to intervenor weighed more than an average when compared with the other sugar seized.

The judgment cannot be amended in favor of the intervenor, as he has not filed an answer to the appeal, asking it to be amended, and therefore it is unnecessary for us to inquire whether the District Judge has allowed him a sufficient amount. As the pleadings are, our only duty is to see that he has not allowed him too much.

The intervenor, without making a motion to dismiss the appeal, suggests, in his brief, that the appeal was not properly brought up because of informality, or rather insufficiency, in the order of appeal. We do not consider ourselves bound to dismiss appeals when irregularities in taking them are brought to our notice in this informal manner. We feel less bound to notice the suggestions in the brief, as the omission, if any, was a mere clerical omission. • ,

It is decreed that the judgment of the lower Court be affirmed, appellant to pay costs of appeal.


author: Ilslee, J.

text:
    Milton Taylor v. James Graham and A. Shaw, Sheriff.
    Courts will notice judicially, without proof, all the military orders issued by the Commanding General whilst New Orleans was held bythe United States troops, and which affected the action of, and the proceedings in, the Courts of this State.
    A party applying for an order of seizure and sale is not bound to presume that a person, whom he is aware is the general agent of an absent or non-resident defendant, has power to represent such defendant in the defence of a suit against him. The appointment of a curator ad hoc to represent the defendant in such a case, is regular; if the agent has full power, it is his duty to cause himself to be substituted for the curator ad hoc during the progress of the suit.
    The law does not require the return of a writ of seizure and sale within seventy days.
    Article 745 of the Codo of Practice, and the terms therin used — “ the same delays and formalities’*— have reference to the sale of the property seized and do nob refer in any manner to the mode or time in or during which returns of orders of seizure and sale shall be made.
    It suffices that the law is silent as to return into Courts of writs of seizure and sale, and that no definite period for the return of the writ in question was therein prescribed. The Oourt cannot, therefore, say that the tardy action of the sheriff in the execution of the writ, rendered the sale made under it a nullity.
    APPEAL from the Sixth District Oourt of New Orleans,

      Duplaniier, J. Hewes & Eustis, for appellant. Durant <& Horner, for appellees.
   Ilslee, J.

The plaintiff, Milton Taylor, has instituted this action to annul and set aside the sheriff’s sale of certain lots of ground in New Orleans, made on the 7th day of June, 1865, in virtue of a writ of seizure and sale issued from the Sixth District Oourt of New Orleans, in the suit then pending of James Graham v. Milton Taylor.

The grounds of nullity relied on by the plaintiff, as stated • separately in the decree of the District Oourt, are :

1.That the writ issued in contravention of a military order, prohibiting the foreclosure of mortgages.

2.That the appointment of a curator ad hoc to represent the defendant in the executory process, and the notice of seizure to this curator, as well as the appointment of the appraisers to estimate the property, was uncalled for, illegal and unauthorized, because the defendant was, at the time, represented in the city by a duly authorized agent.

3.That the appraisement of the property was irregularly made.

4.That the writ was levied upon the property after it had expired, which was no valid seizure ; and lastly, that the sheriff sold in block two distinct and separate pieces of property, which should have been sold separately.

These alleged nullities will be examined seriatim :

I. The order of seizure and sale, on which the sheriff’s sale was made, was granted by the judge on the 30th August, 1864, at which time the General Military Order, No. 15, which is found in the record, was no longer operative, having been superseded by General Order No. 113, which reads thus :

“ Headquarters Department op the Gude, New Orleans, Aug. 22,1864.

“ I. General Order No. 15, February 8, 1863, prohibiting foreclosure of mortgages and forced sales of property, are hereby so far modified as to allow foreclosures and sale, except in cases where it is against equity and justice, and the parties interested are plainly entitled to the favor of the government.

“II. Any party claiming temporary relief from execution, under foreclosure or order of sale, shall establish before a military commission, herein named :

“1. That the sale of the property is against equity and justice.

“ 2. That the temporary stíspension of the order of sale will not work injustice to the parties.

“3. That all taxes upon said property'.are paid, and the improvements insured.

“ 4. That he is a loyal citizen, engaged in laudable pursuits of industry, recognizing the rights and maintaining the authority of the Government, and is justly entitled to its protection and favor against such sale.

“HI. Colonel E. G. Beckwith, Major G. W. Richardson and Lieut. A. Foote are hereby appointed a commission to consider and report upon all applications for relief against foreclosures and forced sales of property within the Parishes of Orleans, Jefferson, St. Bernard and Plaquemine.

“IV. Applications .for relief against foreclosures of mortgages or forced sales in Parishes not otherwise named, will be referred to the Provost Marshal of the Parish until another commissioner is appointed.”

This General Order, No. 113, which is set forth in extenso, was not in evidence on the trial; but that is not material, for, as we held, in the case of Lanfear v. Mestier, not yet reported, this Court will notice judicially, without proof, all the military orders issued by the Commanding General whilst New Orleans was held by the United States troops, and which affected the action of, and the proceedings in, the Courts of this State.

The order and writ of seizure and sale bore date the 30th August, 1864, eight days after the promulgation of this General Order No. 113, and, as the defendant, Milton Taylor, did not avail himself of the protective clause in it, he has no reason to complain of the proceedings as contravening a military order.

II. The appointment of a curator ad hoc to represent the absent defendant was not in itself illegal. See the case of Farrell v. Klumpp, 13 An. 311. But it is contended that, as he was represented by a special attorney, proceedings in the suit should have been had contradictorily with that attorney, and not with a curator ad hoc, and this is urged as a ground of nullity.

We gather from the proof in the record that Graham, the plaintiff in the executory process, was aware, before the institution of his suit, that John A. Watkins was acting as the general agent of Milton Taylor ; bnt it is not shown that he knew, at any time, that Watkins-had the power to represent Taylor in the defence of his suit against him. Such a power is not simply one of administration. It must be specially delegated. See Dickson v. Morgan, 6 A. 562,

Why did not Watkins communicate to Graham this important fact ? Or, why did he not cause himself to be substituted for the curator ad hoc, during the progress of the suit ? Taylor complains with bad grace of the negligence of his special attorney. It suffices for Graham, in any event, that the fault cannot be imputed to him, and it is therefore not a ground to be urged for annulling the sale made by the sheriff. We concur fully with the Judge of the lower Court in his reasons for disregarding this objection.

III. Apart from the- objection, that one of the appraisers was appointed by the curator ad hoc, and not by Watkins, Taylor’s attorney, which is not a tenable one, we cannot perceive any irregularity or illegality in the appraisement of the property sold, and this ground must also be disregarded.

TV. It has been already observed that the writ of seizure and sale were dated the 30th August, 1861, about which time the writ came into the sheriff’s hands. On the 1st of September following he demanded payment, etc., of the curator ad hoc. It was only on the 31st May following, 1865, that the sheriff notified the curator ad hoc, that he had seized and would proced to sell the mortgaged property.

If the writ of seizure and sale, like all writs of fieri facias was returnable in seventy days, it had lost its vitality when the sheriff made the seizure, and no valid sale could be made under it.

There is no law which makes provision for the return day of writs of seizure and sale, unless the acts in relation to the return of writs of fieri facias, embrace every species of final process. It has been often held, and very properly, too, that the execution of the process of seizure and sale must be conducted in the same manner as in ordinary cases under a fi. fa.; but what is meant by the term execution ?

Execution, in practice, is the act of carrying into effect the final judgment of a Court, or other jurisdiction. The return of writs into Court by the sheriff is not technically an element in the execution of those writs, but merely a short account in writing made by the sheriff, or other ministerial officer, of the manner in which he has executed the writ. It is the duty of such officer to return all writs on the return day.

See Bouvier’s Law Dictionary, edition 1839, vol. 2, p. 367. The disj tinction is manifest from the very tenor of writs of final execution, as to the return thereof, which usually conclude with an injunction to the sheriff to make return, etc., of what he shall do under the writ.

The writ of seizure and sale, in the present case, concluded thus : “And what you do in the premises you make return thereof, together with this writ, to our said Court, as the law directs. ”

As we construe Article 745 of the Code of Practice, the terms therein used, “ the same delays and formalities,” have reference to the sale of the property seized,°and do not refer, in any manner, to the mode or time in or during which returns of orders of seizure and sale shall be made. We have not considered, and do not decide, for.it is not now necessary, what would have been the legal effect, had the writ prescribed a delay certain for its return. It suffices that the law is silent as to return into Courts of writs of seizure and sale, and that no definite period for the return of the writ in question was therein prescribed. This Court cannot, therefore, say that the tardy action of the sheriff in the execution of the writ rendered the sale, made under it, a nullity.

We are satisfied that the construction put by us on the Article 745 O. P. is that which the Courts of this State have invariably placed upon it, and that the requirements of the law in relation t'o the return of writs of fieri facias do not apply to writs of seizure and sale. It would be calamitous, indeed, had a sense of duty impelled us to a different interpretation of the law than the one which, after deliberate consideration, we have reached — to an interpretation which, in the language of Chief Justice Martin, “ would open the floodgates of litigation, invite cupidity to frequent attacks, and cause alarm and insecurity at the precariousness of judicial sales.”

As to the objection that the lots were sold in block, and not separately, that cannot be listened to ; for, as this Court, in the case of Bandue v. Connery, 10 Rob. 472, very properly said : “ It is clear that the defendant in execution cannot complain of the sale made by the sheriff of the property in a lump, unless he alleges and shows that he vainly required him to sell it in distinct and separate parts.” See also P. A. Lambert v. Bernard de Santos, 10 An. 725.

The plaintiff having shown no legal ground to annul the sheriff’s sale, which he attacks, the judgment of the District Court must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, the costs of appeal to be paid by the appellant.


author: Tauiakerro, J,

text:
    Giacomo Cimeo v. Wm. H. Danerwheim.
    Where a judgment in the District Court was rendered against the principal and surety on an injunction bond, the principal appealed, and the surety on the injunction bond became surety on tho appeal bond: »

      HéUl .---That the surety on the injunction bond was a necessary party to the appeal, and could not be surety on the appeal bond.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumont, J. J. C. Coleman, for appellant. J. C. Horner, for appellee.
   Tauiakerro, J,

The plaintiff and appellee moves to dismiss the appeal, and states the following grounds for the motion :

1. All parties interested must be cited, or appear in the appellate Court, or the appeal will be dismissed.

2. The surety on an injunction bond is incompetent as a surety on tho appeal bond, in the same suit, if he has been condemned*by the judgment appealed from as. a party.

3. The surety on an injunction bond is a party to the suit.

It is from a judgment in solido, against appellant and his surety on the injunction bond, that this appeal is taken. The surety on the injunction bond is also surety on the appeal bond.

This is clearly irregular. The surety on an injunction bond is a party to the suit.

Judgment having been rendered against the surety as a party, he is rendered incompetent to become surety on the appeal bond in the same case. Bevised Statutes, p. 247, sec. 7. 12 L. B. 383.

The motion to dismiss must prevail.

It is therefore ordered, that the appeal in this ease be dismissed, at costs of appellant.


author: Ilsley, J.

text:
    J. H. Sherman v. The City of New Orleans.
    vVhere, during the late civil war, tho military authorities seized a lot of lumber, and turned the samo over to the Surveyor of the Oity of Now'Orleans, who used the same for repairing the wharves :

      Jleld .- — That the party from whom the lumbor was seized, can recover the value thereof from the Oity of New Orleans, it appearing that the seizure in the first instance was without authority of law.
    The object of pleading is to notify the adverse party of the nature of the claim or defence, that he * may be prepared to rebut it, and not be surprised. It is only where, from the pleadings or proceedings before the trial, the opposite party has sufficient notice of the nature of the demand or defence to be advanced, and could not be surprised, that evidence is admissible, although the allegations be • indefinite and informal.
    A party must be informed by the pleadings of the intended attack to bo made on his title, that he may be prepared for his defence.
    Whoro a defendant resists the right of the plaintiff to recover tho value of property, on the ground that the title of the property in contest is in a third person, the defence must be specially set up in the answer. Evidence going to establish such a defence cannot be given under a general donial.
    APPEAL from the Sixth District Court of New Orleans,

      Leaumonl, J. T. 3. 3ewes, for appellant. Holland & Buer, for appellee.
   Ilsley, J.

The plaintiff claims from the defendant the sum of fourteen hundred and fifty-two dollars, tho value of a quantity of ship timber belonging to him, and taken by the City Surveyor on the 24th of December, 1864, at the Bayou St. John, under a military order, for the use and benefit of the city, and therefore actually used for repairing wharves aftd for other public works.

These facts being established by the plaintiff, is he entitled to a judgment ? If he is not, it is because he has no cause of action against the city; because his action is barred by the prescription of one year, as the defendant contends, and because evidence important for the defence was shut out in the Court below.

The exceptions, that there was no cause of action, and of prescription, were properly overruled.

It is a matter of history that, at the time the timber was taken for the use of the city, its affairs-were under the exclusive control of the United States military authorities, who, it is well known, paid (in their management) but little regard to municipal regulations and ordinances, and any deviation from such regulations and ordinances, in appropriating for the city use, the property of citizens, cannot deprive them of the right of claiming judicially the value of such property.

As to the prescription of one year, the plea is untenable, even if the action was one ex delicto, for it is shown that the timber was taken by the City Surveyor, on the 2éth of December, 1861, and citation and process in this suit was duly served on the 22d of December, 1865, less than one year afterwards.

A bill of exceptions was tendered by the defendant, and allowed, to the refusal of the judge to receive the evidence of a witness to prove that the timber sued for, previous to its being taken for the city, had been sent to the Bayou St. John, for the purpose of constructing therewith gunboats, for the use of the Confederate Government, in consequence of which it had become a lawful prize of war to the United States. This evidence was not received, because the answer was merely a general denial, and that, to let in the proof of such a fact, it should have been specially alleged.

We think that, in fairness, this ownership of the timber by the United States should have been specially stated in the answer, so as to give the plaintiff notice that he might be prepared to meet it.

This is the practice adopted in petitory actions (see Williams et al. v. Riddle, 10 Rob. 510); and, on principle, we think it should be adopted in cases like the present one. In the case of Wells v. St. Dozier, 9 An., the Court said : “ The rule is that a party cannot be permitted to prove what he has not alleged. If the defendant intended to rely on a purchase from Pearson as the ostensible owner, he should have pleaded it in his answer. The general issue reduces the controversy between the parties to the question of the truth or falsity of the plaintiff’s allegations and the legal effect of the facts when proved. In the case of Clark v. The State Bank of Alabama, 3 An. 326, the Court observed, that a party must be informed by the pleadings of the intended attack to be made on his title, that he may be prepared for his defence.

No such notice was given by the pleadings, and the Judge did not, in the opinion of the Court, err in refusing the evidence.

It has bees held by this Court, that the object of pleading is to notify the adverse party of the nature of the claim or defence, that he may be prepared to rebut it, and not be surprised. It is only where, from the pleadings or proceedings before the trial, the opposite party has sufficient notice of the nature of the demand or defence to be advanced, and could not be surprised, that evidence is admissible, although the allegations be indefinite and informal.

We think the plaintiff has proved his demand, and that the law is with him.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


text:
    Richard Salter v. Henry A. Clinch and Mrs. Mary L. Grieff.
    Purchasers afc sheriffs sales, who pay the full prico of property struck off to them, should not he thereafter exposed to molestation hy parties entitled to a portion of the price,
    APPEAL from the Sixth District Court of New Orleans,

      Buplanli&r, J. Buchanan & Gilmore, for plaintiff. Lacey <& Marr, for defendants,
   Ilsley, J.

The plaintiff, Richard Salter, being the holder of the second and last installment note, bearing the vendor’s privilege, and special mortgage on two certain lots of ground, etc., in New Orleans, caused executory process to be issued against the property affected with his lien, to satisfy the amount of the note held by him, and which note, on the day of the sheriff’s sale, amounted to the sum of $3,462, one hundred dollars less than the net amount, which resulted from the sheriff’s sale.

On the suggestion of the purchaser of the mortgaged property, that the mortgage note first maturing was outstanding and unaccounted for, the District Court decided that the purchaser might retain in her hands one half of the net proceeds of the sale (being $1,775) to be applied to the payment of the said note, representing a part of the same mortgage debt, and that the plaintiff should only receive the other half of the proceeds thereof, leaving of his claim, in principal, still unpaid, $1,677. The seizing' creditor having discovered, as he supposed, that the first installment note had been paid, took out, on the 20th October, 1865, a rule upon the purchaser to show cause why she should not pay him the balance in her hands.

The rule was excepted to, because the defendant in the executory process was not made a party to it.

This exception does not appear to have been disposed of by the Court below, and the rule, after a hearing contradictorily thereon, was made unconditionally absolute.

We cannot perceive the necessity for making the defendant in execution a party to the rule.

For, if both notes were outstanding and unpaid, the fund would be-clearly insufficient to satisfy them, and it would be distributed between the holders of the same according to law. If only one note remained to be satisfied, the holder of it could only get that balance under his writ of seizure and sale ; and, what remained of the price, the sheriff would, under Article 704 C. P., receive and pay to the seized delotor.

Upon the merits, we concur with the Judge of the Court below, that the first note was paid, but before its maturity, and there is no proof that it was withdrawn or put out of circulation, when it was paid, and it might have gone into the hands of some bona fide holder before it became due.

Purchasers at sheriffs’ sales, who pay the full price of property struck off to them, should not be thereafter exposed to molestation by parties entitled to a portion of the price. Perhaps, but little is to be apprehended from any claim on account of the appearance hereafter of the first note, or from the claim of the United States, resulting from their sequestration of the fund. But the purchaser must be fully protected against any such possibility, and we will render such a decree as will prevent the fund from being tied up indefinitely; but will, at the same time, afford ample protection to the purchaser.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so as to require from the plaintiff in the rule, Richard Salter, a bond to be filed in Court, for the full amount of the sum to be paid to him by the said decree, in favor of the purchaser, Mrs. Grieff, to indemnify and secure her for any loss or damage that she may sustain in consequence of any claim on the fund or price, that may be at any time substantiated thereupon, by any bona fide holder of the first note, forming a part of the price of the property seized under the order of seizure and sale, or by the United States; the said bond to be so filed before the payment to the said plaintiff of the sum claimed by him on the rule, and that, so amended, the judgment of the District Court be affirmed.

It is further ordered, that the costs in the Court below be paid by the defendant in the rule, and the costs in this Court by the plaintiff therein.


author: Tariaeerro, J.

text:
    Miss Caroline L. Block v. Steamboat Trent, Captain M. N. Wood and S. S. Streck.
    Steamboats and other vessels engaged in carrying passengers are responsible for the loss of all baggage which has been placed in the custody of the officer of the vessel, whose duty it is to receive and take care of baggage.
    The Code of this State prohibits a plaintiff from testifying as to the value and nature of the contents of a lost trunk or baggage. The oommon law rule, in this respect, has never been adopted in this State.
    APPEAL from the Sixth District Court of New Orleans,

      JDuplantier, J. T. 8. Bayne, for appellant. Bace <& Foster and E. T. Merrick, for appellees.
   Tariaeerro, J.

The plaintiff, intending to leave New Orleans for Donaldsonville, on the steamer Trent, -a packet then running to Lafourche, sent her trunk in advance by a cabman, to be put oh board the steamer. She failed, however, to go ; but a friend of hers, on the arrival of the boat at Donaldsonville, went on board to get the trunk, but it could not be found.

This suit is brought against the boat, and against the captain and first clerk, for the value of the trunk and its contents, consisting chiefly of the lady’s wardrobe, which was valued by her at $552, and the trunk at thirty dollars.

Judgment was rendered in the lower Court for the whole amount claimed. '

The defendants have appealed.

A detailed statement of the various articles contained in the trunk, with the valuation of each, was made out, and sworn to by the plaintiff. To this affidavit, and to the introduction of the plaintiff herself as a witness, to prove the contents of the trunk and their value, the defendants’ counsel excepted, and the objection was sustained by the Court. A bill of exceptions was reserved to the ruling of the Court.

Testimony of this character which, under proper limitations, is admissible in common law proceedings, is prohibited by the provisions of our Code. This is Well settled by the ruling of this Court in the case of Alexander Pope v. Hall & Hildreth, reported in 14 An. p. 324 et seq. See Civil Code, Articles 2257, 2940.

The exception was properly sustained.

Several other bills of exception appear in the record, but we do not deem it necessary, in the decision of this case, to give them a special consideration.

The plaintiff’s case appears to be clearly made out. The cabman, by frliom the trunk was sent, swears that he delivered it to the porter of the Trent, on the boiler-cleck of the boat. The second clerk of the boat testifies that the porter in question had acted in that capacity only during • two or three trips; that he had heard the captain say that he had lost an overcoat, and that he believed the porter had stolen it; that the porter had been discharged. This witness saw the porter carrying off the boat with him a trunk answering the description of the plaintiff’s, without any passenger following him.

Connecting the testimony of this witness with that of others, it appears that the porter was discharged about a week after the trunk had been put on board, and upon the first return of the boat to New Orleans, after-wards; for Washburn, a witness, swears that about that time he went on board the Trent to make inquiry after the,trunk, and that, in a conversation with Captain Wood on the subject, the captain said he believed the porter to be a thief, and that he thought he had stolen the trunk; that ho proposed to leave a man on shore to hunt the porter up.

Two ladies, the intimate friends of the plaintiff, testify in her behalf. They both fully establish the contents of the trunk and the value of the articles. One of these witnesses lived in the house with the plaintiff, and assisted her in packing her trunk at the time it was sent to the Trent.

The value of the trunk is also fully proved.

The testimony, on the whole, leaves no reasonable doubt of the receipt of the trunk on board the boat, by the officer of the boat whose business it is to receive the baggage of passengers. The loss of tho trunk, its value, and the value of its contents, are also satisfactorily established.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Howelb, J.

text:
    Marie Marot v. L. Lallande Ferriere, Her Husband, et als.
    Tjie wife cannot arrest the sale of the husband’s property seized in execution, on the more ground of preference over the seizing creditor.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumoni, J. WMlktlcer, Fellows & Mills, for appellant. C. Fufour, for appellees.
   Howelb, J.

The plaintiff complains of that portion of the judgment rendered herein, which dissolves the injunction restraining the sale by the sheriff of property seized at the suit of two of her husband’s creditors, and reserves her rights upon the proceeds thereof.

The wife cannot arrest the sale of the husband’s property, seized in execution, on the mere ground of preference over the seizing creditor (5 R. 496, 498; 10 R. 28; 2 A. 762); but the plaintiff fears that her rights maybe prejudiced by the clause of the judgment which reserves her right of action to be paid out of the proceeds of the property in question, as it may debar her from pursuing her rights in another mode. However this may be, we think it was unnecessary, under the pleadings, to make any such express reservation. On this branch of the case, the only question was, whether or not she could stop the sale for the causes alleged, which, being solved in the negativo, it was sufficient to dissolve the injunction as required by law, leaving the plaintiff to pursue whatever rights she might have, according to law. In this respect, the judgment should be amended in her behalf.

It is therefore ordered, that the judgment appealed from be amended, by striking out, without prejudice, that portion which reserves plaintiff’s right of action to be paid out of the proceeds of the property seized in this case, after the property should have been sold; and that, as thus amended, it be affirmed; the appellees to pay costs of appeal, and the appellant those of the lower Court.


author: Howell, J.

text:
    G. L. Bright v. T. H. Hewes et al.—City of New Orleans, Intervenor.
    Where the City Attorney of New Orleans obtained judgment against delinquent tax payers, for taxes, audbofore.the judgments were paid and satisfied was removed from office, and his successor claimed for the City tho per centago allowed the City Attorney for the collection of taxes :

      Hold That the City attorney who obtained the judgments is entitled to tho five percent, on the amount collected on said judgments, and his successor in office has no authority to interfere and enjoin tho sheriff from paying the per centage to the attorney who obtained the judgments.
    That the five per cent, allowed the City Attorney for collecting city taxes is not the property of the city.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. Q-. L. Bright, F. Moise and E. W. Huntington, for appellant. G. Bufour, for appellees.
   Howell, J.

This is an injunction suit to restrain the defendant, Hewes, as city attorney, from receiving and collecting the commissions granted as attorney’s commissions in the judgments obtained by plaintiff, Ms predecessor in office, for taxes in the years 1861, 1862 and 1863, and to enjoin the sheriff from paying over to said defendant such commissions as come into his hands by virtue of executions issued by plaintiff.

The defendant, Hewes, answered that he was instructed by the city to take control of all proceedings for the collection of said taxes, and settle therefor with the sheriff and city treasurer; that the commissions in question are not due to plaintiff, but to respondent; because the judgments obtained by the former were illegal and void, and were made valid by respondent’s exertions ;'he asked that the city be made party and the injunction dissolved.

The city intervened, confirming the instructions to defendant and denying plaintiff’s right to said commissions :

1. Because, as city attorney, he cannot receive extra fees iu the way of commissions or otherwise.

2. Because all commissions allowed for the judicial collection of taxes are due to the city, against which the attorney must make his demand for them.

3. Because the judgments obtained by plaintiff were void, by reason of his failure to affix the stamp required by law to the process in each case, and thus exposing the city to the penalties in such eases provided; which judgments were subsequently made valid through the exertions of the defendant.

A Because plaintiff has declined to act in the very eases for which he claims commissions.

5. Because, under existing laws, the “ commissions are due upon the amount collected,” and not upon the judgments rendered, and 't]fe;clq,im for them must be made against the city. f.-CÍV.?} V\

Judgment was rendered in favor of plaintiff, perpetuating’ the injjjp.fiv tion, and the defendant and the city appealed, ’' ^

Conceding that the judgments obtained by plaintiff'were nuir'for the cause alleged, upon which we express no opinion, we^tmetperceivelidw the defendant could make them valid by a subsequent affixíng'of tfto stamps. The record shows, however, that the judgment^ were not treated as nullities by the debtors or other parties. What the defendant did in the premises, under the authorization of the collector of internal revenue, probably relieved the city from the penalties denounced by the Act of Congress, and for which, possibly, plaintiff may have been responsible to the city in damages, if incurred by his fault; but it could not have the effect of transferring to defendant the right to the compensation due for plaintiff’s services.

1. The first ground of objection on the part of the city is removed by the military order assigning to the city attorney the duties and compensation of the assistant city attorney. It does not give extra compensation to him as city attorney, but compensation for additional duties.

2 and 5. The second and fifth grounds are similar, and involve the ques - tions, whether or not the city is entitled, under the judgments for taxes, attorney’s commissions and costs, to receive the commissions, and the attorney is to demand them of it, and to what extent he is to be paid.

As the object of this proceeding, as .avowed by the plaintiff himself, is to stop in the hands of the sheriff the attorney’s commissions” allowed in the judgments collected by that officer, we think it would be a vain thing to require the sheriff to pay them to the city, and require the plaintiff to demand them of the latter. But, in the case of Hiestand v. Labatt, 11 A. 30, it was held that the attorney who obtained the judgments was entitled to receive from the sheriff the commissions collected in such cases. General Order No. 124, under which plaintiff proceeded, authorized a judgment for “ attorney’s commissions, at the rate fixed by law,” without restriction as to the mode in which the attorney should receive them. This order is materially different from, though not exclusive of, other remedies, and establishes a different mode of proceeding, and changes the rights, duties and remedies of all parties affected. It is another law for collecting the taxes for the years named, independent of existing statutes, and must be held to regulate the rights of the parties, where distinctly prescribed. It authorized the city attorney to proceed very summarily in the collection of the taxes, and secured his fee.

' The 5th section of the Act of 1859 (p. 141 Session Acts), passed since the decision in the above case, and relied on by the counsel for the city, provides that, to each bill confided to the attorney for collection there shall be added a commission of five per cent, per annum on the amount of the bill, which commission shall be paid by the defaulting tax-payer, and shall be received by the attorney in full compensation for his services, but only on the amount actually paid into the treasury. The object of this section, if applicable to this branch of this ease, seems to be to make the debtor pay the attorney’s fee, and to relieve the city from any liability for it, by limiting the attorney’s right to compensation to the per cent, on the amount actually collected. Plaintiff in this case claims only the commissions on the amounts realized by the city, and he is seeking to prevent them from being paid to his successor, who, it seems, was instructed and authorized by the city “to take charge and control of proceedings and collections regarding the tax receipts for the years 1861, 1862 and 1863, and to settle and determine with the , sheriff and city treasurer all matters connected with those receipts,” upon which plaintiff obtained judgments and issued executions, and for which, we think, he is, under the circumstances and pleadings, entitled to the commissions on all sums or judgments actually collected.

3. The third ground is already disposed of in considering the defence set up by the defendant.

4. The fourth ground is not satisfactorily sustained by the evidence. It is not definitely shown that the suits, in which the sheriff’s fees were claimed, and upon the legality of which fees plaintiff declined to give an opinion, were the tax suits. But if they were, we are not prepared to say, upon the evidence, that plaintiff declined to collect the judgments obtained by him, and which ho was permitted to undertake. He simply declined to give advice, which he thought it would be improper for him to do, as the city had a legal adviser. "We presume, from the record and the authorities quoted by him, that he undertook to collect the judgments in order to secure the commissions earned by him. See 11 A. 30; 12 A. 485; 14= A. 137, 332; General Order, 124, Dep. of the Gulf.

It is therefore ordered, that the judgment appealed from be affirmed, with costs.


author: Taliaeebbo, J.

text:
    Williamson Smith v. Thomas J. Ivey and The City of New Orleans.
    Where the loss of a flatboat, loaded with coal, at the flatboat landing in New Orleans, is shown to have been the result of carelessness or inexperience on the part of the owner, or by reason of the want of propor crew, or want of skill on the part of the crew, neither the harbor master or the city of New Orleans are responsible for the loss.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. McPJieelers, and Bonford & Finney, and Michel, for appellants. Q. A. Breaux, and Singleton <& Clack, for appellee.
   Taliaeebbo, J.

The plaintiff sues the City of New Orleans and Thomas ,T. Ivey, a harbor-master, for $2,871 20, the value of a large quantity of coal, and the flatboat that contained it; both of which, petitioner avers, were totally lost from the sinking of the boat, caused by the illegal and improper management, by the harbor-master, of the flatboat landing, and by his gross negligence and inattention to his duties.

The defendants admit that plaintiff’s boat was sunk; but deny that the accident happened through their fault. On the contrary, they aver that it arose from the plaintiff’s own imprudence; from his want of the proper attention to the safety and security of his boat, and from the want of skill and judgment in those to whom he entrusted its management. They aver that they are in no manner responsible for the plaintiff’s boat, and pray to be dismissed.

This case was before two juries. The first was unable to agree upon a verdict; the second found for the plaintiff, and judgment was rendered accordingly for the amount claimed. The defendants have appealed.

From the record we gather the following facts :

That the flatboat landing extends from Second to Fifth streets; that, at the time the accident happened, two or three ships were lying at this landing; about half the length of the vessels extending above the line of Second street. That plaintiff’s flatboat, heavily laden with coal, was brought to this landing by a tow-boat, which, being unable (for want of room) to land the coal boat against the wharf, left her on the outside of several flatboats, lying two or three tiers deep. That the river at the time was quite high, and the current very strong close to the shore. That the coal boat, lying outside the other boats, was exposed to the great force of the current, and was insecure, although fastened by a bow line and a stern line, both of which extended to the shore. That, after lying in that situation about half an hour, three men in the employ of plaintiff undertook to drop the coal boat down below the flatboats she was lying against, to an open space between these boats and the ships, in order to lay the coal boat along side of the wharf. That, in this attempt to move the coal boat, her bow line parted, and, being still held by the stern line, she swung around and was swept down with great violence against the bow of one of the ships. By the collision the boat was stove, and soon after sunk.

Two or three witnesses say that it was not usual for flatboats to be unloaded at that part of the wharf where it was attempted to place the coal boat, and that it was a common thing for ships to lie there. The reason assigned was, that it was impracticable to unload flatboats there, except during a high stage of water.

The defendants show that, by a city ordinance, the harbor-master was clothed with discretionary power to assign for the use of ships such wharves within the boundary, between First and Sixth streets, as it might be impracticable to unload flatboats at. But, it appears by the City Ordinance, No. 4=007, passed in June, 1858, that this discretionary power was not continued in the harbor-master; for the last section of the act provides that all ordinances and parts of ordinances, rules and regulations, that are contrary to the provisions of this ordinance be and the same are hereby repealed,” etc.

The plaintiff seems to base his claim for damages mainly on the ground that the ships that lay at Second street encumbered the landing, and obstructed the safe passage of boats to the wharf. That, being out of their proper place, and lying in the position they occupied, the collision which occurred was inevitable.

A careful inspection of the record does not enable us to say that the evidence sustains his position. We think it reasonable to conclude, that the disaster was the result rather of his own want of prudence and foresight, and the want of judgment and skill in those he had in charge of his boat, than delinquency in duty of the city authorities. We are satisfied that, had a sufficient force been employed, and proper direction given to that force, the coal boat might safely have been turned around to the wharf. It is fully shown that only three men, and those awkward and unskillful, were engaged in an [operation requiring three times the number, and possessing, also, dexterity and judgment.

The plaintiff, in our judgment, has not made out a ease entitling him to damages.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that judgment be, and the same is hereby rendered, in favor of the defendants, the plaintiff to pay costs in both Courts.