author: Poché, J. Fenner, J.

text:
    10,396.
    Samuel Burchfield vs. The City of New Orleans.
    Courts will not enforce against a municipal corporation, a contract made for it and in its name by one of its officers who had no anthority to make such a contract.
    Under the provisions of the charter of the Oily of New Orleans, the Commissioner of Public Works is powerless to bind the city by a contract for the purchase of materials for liis department, independently of the action of the City Council.
    Such power did not exist even before the passage of Act 135 of 1888, of the Legislature.
    APPEAL from the Oivil District Court for the Parish,of Orleans. Ellis, J.

      Branch K. Miller for Plaintiff and Appellee:
    1. Where a municipal corporation is sued upon a contract, which it has the power to make, a defence based, upon the non-compliance, with the charter provisions in making- the contract, will not he considered unless specially pleaded. 30 A. 453; 10 A. 809; 12 A. 35.
    2. A contract to furnish shells to repair the streets, is within the power of the Commissioner of Public Works of the City of Now Orleans. Act No. 20 of 1882 Sec. 21, 24, 7,8; Act 35 of 1888; Act 119 of 1882.
    3. Where a municipal corporation has power to make a contract, hut acts through an officer not authorized, it is liable on the contract if it has been executed by the other party, especially so if the latter has parted with value and the corporation has thereby received benefit for which it has given no equivalent. 16 Cal. 256; 96 U. S. 341; 15 Barb. (N. Y.) 323, 324; 33 O. St. 365; 3 8. H. Itep. 442, 443; 18 Pacific Rep. 836 ; 24111. 107.
    4. A contract of a municipal corporation, containing a defect of form, maybe ratified by the authority which had the power to make it originally; a payment on account of the sum due under the contract is such a ratification. 7 Me. 19,118; 11 Pa. St. (2 Harris) 83; 9 Cal. 453; 37 Cal. 545, 579 ; 9 Hoisk (Tenn.) 543: 44 la. 239; 33 O. St. 363; 15 Barb. (N. Y.) 323.

      Sam’l L. Gilmore and Thos. McO. Hyman, Assistant City Attorneys,, for Defendant and Appellant:
    1. The Commissioner of Public Works has, under the law, no authority to purchase supplies or materials for the city’s account without the order of the Council and the sale or the advertisement of the contract, and contracts entered into by him for supplies and materials without these formalities are void. Act 20 of 1882; Ordinance No. 4495, A. S.; Fox vs Sloo,10An. 11; Fox vs. Sloo, 12 An. 154; Succession of Irwin, 16 An. 132.
    2. No privilege can he allowed for the payment of the city’s bills for one month over those of a subsequent month, because no law exists establishing' such privilege, and privileges nrc strietl juris.

      3. No interest can be allowed on claims against city budget appropriations for the year 1888. Taxpayers vs. City, 83 An. 571; Fernandez vs. City, Court of Appeals, Eire Engine Company vs. City, 39 An. 982.
   The opinion of the court was delivered by

Poché, J.

This is an action on an alleged contract with the City of New Orleans, through the Commissioner of Public Works, for the supply of shells delivered to, and used by, said officer, in repairing and filling certain streets of the city, in January, February, March and April, of the year 1888, which shells were furnished at the agreed price of one dollar per cart load.

On the allegation that at the proper time the City Council refused to pass the necessary financial ordinance directing the payment of his bill, which had been approved by the then Commissioner of Public Works, plaintiff sued out and obtained an injunction restraining the Council from making any appropriation which would hinder or prevent the payment of the sums due to him in accordance with the rank and preference which he claimed.

Judgment was rendered in favor of plaintiff for his demand in full, and for all the relief which he prayed for, excepting the interests which he claimed, and which were denied him.

The defence is a general denial, and under it the city makes the point that the Commissioner of Public Works was without the authority or power to bind the corporation in the contract sued on.

The point is well taken and it should have prevailed as a defence; hence the judgment appealed from must be reversed.

Under the provisions of the charter of the City of New Orleans the right of contracting in the name, and in behalf, of the corporation is vested exclusively in the City Council, whose official acts must be done and evidenced by means of ordinances or resolutions. And the power of the Council itself to enter into contracts for purchases in the name and for the use of the city is regulated by special privileges contained in the charter. The exercise of that power is so restricted and circumscribed that an ordinance is not of itself sufficient to legally affect the purchase of certain things.

Sec. 21 provides that: “All contracts for public works, or for materials or supplies ordered by the Council, shall be offered by the Comptroller in presence of the finance committee of said Council, and given to the person making the lowest proposal therefor, who can furnish security satisfactory to the Council.”

It will be noticed that the management of contracts for the purposes enumerated is entrusted, with very limited powers, to the Comptroller, to whom is conferred the duty of the general superintendence of the fiscal affairs of the corporation, and that in reference to such contracts no power is vested in, and no duty entrusted to, any other executive officer of the corporation. Hence it follows that under a proper construction of that provision, the power is withheld from the Commissioner of Public Works, and from the other executive officers, to represent, or to act in behalf of the city in the matter of purchasing supplies or materials necessary to their respective departments.

But in addition to that reason other provisions of the charter can be invoked to conclusively show that the power or authority to enter into contracts for materials was not to be exercised by any executive officer independently of the Council. Sec. 24 of the charter provides as follows:

The Commissioner of Public Works shall have general charge and superintendence of all matters relating to water works, railroads, canals, levees, weights tod measures; the fire department, and manufacturers, streets, side-walks, pavements and wharves; the construction and repair of bridges and drainage and hygiene of the city, in so far as the same may be compatible with the laws and duties of the Board of Health, and shall be vested with and perform such other functions as may be prescribed by said Council.” * * *

Nothing in that language can even suggest a remote intention of vesting the Commissioner of Public Works with the power of contracting for materials for the city and of determining the price to be paid therefor or the quantity to be procured.

After lodging that identical power exclusively in the City Council and prescribing to the Comptroller the mode of assistance which he alone could render in the premises, the law maker could not consistently entrust the same authority to another and_different department or officer.

In order to leave no doubt as to the true meaning of the charter on this very important question, which, notwithstanding.its clearness, seems to have been misunderstood, the Legislature passed Act 135 of 1888, which provides that, Neither the Council of the City of New Orleans, nor any committee thereof, nor any of the officers of said city shall have the power to bind the city by any contract for any public work, or for the purchase of any material or supplies for any of the departments of the city government, unless there shall have been previously passed a resolution authorizing the said contract or the said purchase, and unless the said contract for public work or for the furnishing of said material and supplies shall have been let by the Comptroller to the lowest bidder, as provided in Sec. 21 of the City Charter.”

A close analysis of the various provisions of the city charter, and a comparison of the sections therein contained with each other, can leave no doubt on an impartial mind that the spirit of the restriction announced in that statute pervades the entire charter. And the only legal effect of the enactment of a soecial statute was to condense the limitation already breath"-? in the charter, in clear, terse and unambiguous language.

Of course, the act itself, as an independent legislation, could not control the contract now under discussion, as it antedates the statute, but it is useful as a legislative construction of a previous enactment, and it also serves to meet and answer the argument made here as to the inconvenience which might result from our construction of the power of the Commissioner of Public Works in connection with the purchase of materials necessary to his department.

The law, as it stood previous to the existence of the power now conferred by the last act to that officer to make bills for supplies and materials not exceeding $50, in eases of emergency may have been very inconvenient in its effects, but it was the law, and courts have no other mission but to enforce it.

Having concluded that the commissioner had no power to bind the city in the contract now in suit, we have nothing left to do but to apply the effect so tersely described by Judge Dillon in his work on Municipal Corporations:

“ The general principle of law is settled beyond controversy, that the agents, officers, or even City Council, of a municipal corporation can not bind the corporation by any contract which is beyond the scope of its powers, or entirely foreign to the purposes of the corporation, or which (not being in terms authorized) is against public policy. This doctrine grows out of the nature of such institutions, and rests upon reasonable and solid grounds. The inhabitants are the corporators, and the officers are but the public agents of the corporation. The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only may know, but are bound to know.” Sec. 457. Also Secs. 464, 733; see also 10 An. 11, Fox vs. Sloo.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; that the preliminary injunction herein-obtained, be dissolved;' that his demand be rejected and his action dismissed at his cost in both courts.

On Application eor Rehearing.

Fenner, J.

After considering all the views submitted in the able brief for rehearing, we adhere to our clear conviction that under the City Charter, as it would have been under the Act 135 of 1888, the plaintiff’s contract was clearly unauthorized and illegal.

The authorities cited to show that, although unauthorized, yet the city, having received and used the property of plaintiff, is liable for its value ex cequo et bono, might have weight, if the city were capable of contracting debts except as a charge upon her current revenues. But the city has no such capacity under the Constitution and laws of the State. Plaintiff’s claim is presented in contest, not with the city practically, but with her lawful creditors, over whom he claims a preference on the revenue of the year. His illegal claim can not compete with their legal claims.. The utmost he could claim would be to have his debt satisfied out of the revenues of the year after payment of all lawful claims thereupon. But, as the allegations of his petition show the inadequacy of the revenue to meet the charges, such relief will probably be futile.

We, however, reserve his right to sue the city on a quantum meruit for a judgment payable out of any surplus of the year’s revenue.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,560.
    In the Matter of Succession of Auguste Gassie, to Compel Administrator to Account.
    AVhen it appears that the only persons practically interested, in an account are the aceountaixt and tlie opponeixt, both of whom aro ¡mi juris, and when it is shown tlxal they have xxiado extra-judicial settlements of the matters involved, and, by their joint action, have involved affairs in such confusion that a readjustment is impracticable, the judge a quo will bo sustained in leaving the parties where they have placed themselves and in dismissing the ease.

      APPEAL from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

      Samuel Matthews for Opponents and Appellants.

      Alex. Hebert for the Administrator, Appellee.
   The opinion of the court was delivered by

Fenner, J.

August Gassie died in 1873, leaving a widow and two-minor children. His estate consisted entirely of community property, and, under the law, the widow was owner of one-half and was usufructuary of the other half, which belonged to her minor children.’

Auguste Gassie and his brother, William Gassie, were common owners of part of a plantation, which they worked in partnership, and were also mercantile partners in a store.

The succession of Auguste Gassie was opened and his widow qualified as tutrix of the minors, and her father, Emile Lefebre, as their under tutor, in which capacity they administered all the estate except the partnership property, of which William Gassie, as surviving-partner, was appointed administrator and qualified as such, Mrs. Gassie and Mr. Lefebre becoming securities on his bond.

After this the parties seem to have cut loose from the court and to have taken the administration of the estate into their own hands. The planting interest was conducted by them jointly, while William Gassie administered and carried on the affairs of the store.

It is very clearly shown that the mercantile copartnership was insolvent at the death of Auguste Gassie. Therefore the minors had no interest therein, and any profits made in conducting the business thereafter belonged jointly to Wm. Gassie and to Mrs. Gassie as. widow in community and as usufructuary. The same may be said of’ the fruits and revenues of the plantation. Thus, practically, the only real parties in interest were William Gassie and the widow.

They compromised and settled the debts as best they could, and, with the full sanction and co-operation of both, the store and plantation operations were carried on.

They hacl frequent and full settlements with each other.

So matters went on until 1889, when Mrs. Gassi'e filed the present proceedings to compel William Gassie to account, and an order to that effect was issued by the judge.

In obedience thereto, Wm. Gassie filed a bungling account, containing serious errors, as subsequently shown, against himself, and, no doubt, others in his favor. But the testimony of William Gassie showed that the parties had taken cognizance of everything that had been done and had had annual settlements with each other, embracing all the matters in controversy, and his statements are not substantially contradicted either by Mrs. Gassie or her father, who advised and assisted her, and both of whom testified.

The judge a quo came to the conclusion that the matters involved in the account had been extra-judicially settled and liquidated between the parties, and, therefore, dismissed the whole case.

We think he did not err.

It is clear, as heretofore stated, that the only parties interested in this accounting are Wm. Gassie and Mrs. Gassie, personally. We have puzzled our brains over this confused record in a vain effort to adjust their rights upon the evidence adduced, and the only conclusion we have been able to reach is, that they are equally responsible for the inextricable confusion in which the matters are involved; that, at frequent intervals, they have gone over and agreed upon settlements to date, and that it passes the capacity of the most expert, on the evidence here presented, to make any better settlement than they have themselves already made.

Judgment affirmed.


text:
    No. 10,467.
    Succession of Anna Maria Bellande.
    1. A husband who lias been a party to an authentic act by which it is declared that the wife purchases with her separate paraphernal funds and for her separate benefit, is estopped from contradicting the verity of such recitals; unless he first prove that such recitals were embodied in the act through fraud, error or violence.
    He must prove the error before he can be heard to contradict the verity of the-recitals. 2.

      3. Tlie proof of error must be clear and convincing. Where the terms of the act are unambiguous, ivhen it is shown that those terms were fully communicated to him, he can not escape their effect by saying that he did not understand the legal significance of the terms used, particularly after the death of his wife, in a contest with her heirs.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      II. H. Bryan for the Executor, Appellant.

      A. J. Lewis, contra.

   On Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The motion has no merit. The case is precisely the same case which was before us under a former appeal, in which the present mover was then appellant. We then entertained jurisdiction, and.we still have it. A party can not invoke our jurisdiction to reverse a judgment rendered against Mm, and then decline it when invoked to review a judgment in the same case rendered in his favor.

On the Merits.

This case involves a dispute between the surviving husband and the heirs of the wife as to the ownership of a piece of real estate purchased by the wife by authentic act, to which the husband was a party, and which declares that the purchase was made by the wife “ with her own separate and paraphernal funds for herself, her heirs and assigns.”

The case was before us on a former appeal on a ruling of the judge a quo, which excluded all testimony offered by the husband to show that the act of purchase was executed in error; that it did not recite the desire and intention of the parties, which were simply that the purchase should be made in the name of the wife for the benefit of the community; that the contrary declaration in the act was made through an error of the notary, and was not observed by himself and wife, because they did not understand the meaning of the words used.

We reversed this ruling and remanded the case, saying:

. “ However true it may be that a husband, under whose authority a wife acquires property with the recital in the act that the purchase is made by her with her separate and paraphernal funds and for her exclusive benefit and that of her heirs and assigns, may be estopped from contesting the verity of the statement and the character of the investment, it does not follow that he must necessarily be shut out from all right to attack the act on grounds which he might have urged against others than his wife, such as error, violence or fraud.” Succession of Bellande, 41 An. 493.

The judge a quo in his opinion now before us for review seems to have misconstrued our opinion as meaning that proof of the falsity of the recital in the act was, in itself, sufficient proof of error. He makes no other comment on the evidence in the ease except to say: '“ The proof is convincing, overwhelming, that the wife is not separate in property from her husband, had no separate funds, and that the property, although in the name of the wife, was purchased with uommunity funds and is community property. ” ■

It is perfectly clear that before such proof as that above indicated could be considered or even received, it was first necessary for the husband to establish that the recital to the contrary in the authentic act was inserted and approved through error; for however false be that recital, if it was embodied in the act with the consent of the parties, they are absolutely estopped from contradicting its verity. Maguire vs. Maguire, 40 An. 579; Kerwin vs. Ins. Co., 35 An. 33.

We remanded the case solely for the purpose of receiving evidence on the charge of error, holding, at the same time, that the husband “must be held to establish it by strong, legal and convincing evidence.” Some attempt was made to establish the charge of error, but what does it amount to? The proof shows that the husband and wife jointly conducted the negotiation for the purchase and agreed with the seller as to the price and terms; that the husband went with the seller to the notary and that the former instructed him to put the property in. the name of the wife; that the notary prepared the act in its present form; that the husband and wife went together to the notary’s office to execute the act; that the act was either read to them or that the notary stated the substance of it in such words as these, “this is an act in which Drury Harris sells to Mrs. Bellande, purchasing with her separate paraphernal funds, the following property,” etc., and that the parties then signed the act. The notary is. positive that, if he did not read the act, he stated to the parties the substance of it, and specially that the sale was to the wife, purchasing with “ her separate paraphernal funds.”

The husband says: “I told Mr. Hero simply to put it in my wife’s, name, thinking that it was community property; it did not make any difference in whose name it was, hers or mine.” He does not deny that the act was read to him or that its substance as above given was. stated to him, but says he did not understand the meaning of the words, “separate paraphernal funds.” It strikes one as strange that a person who understood so well what was community property and that property purchased during marriage in the name of either-spouse fell into the community, should have been ignorant of the meaning of the terms, “separate paraphernal funds.” Admitting-that the term “ paraphernal ” might be enigmatical to the lay mind, the statement that the purchase was with .the wife’s “separate” funds would seem plain enough to any ordinary mind.

Not the slightest suggestion is made of any reason why the title-should have been taken in the name of the wife, if it was intended to give it the character of an ordinary community purchase. The husband, the head and master of the community, was present actively participating in the negotiation, arid if a community purchase was intended the natural and ordinary course would have been to take the title in his name. The taking of such a title in the name -of the wife, under such circumstances, is certainly unusual, and, in absence of explanation, improbable — so unusual that, when instructed to put the title in the name of the wife, the notary naturally and spontaneously inferred that it was a purchase for her separate interest, and prepared the act accordingly.

We have no proof, except the bare statement of the husband, as to what the wife’s intentions were, and none at all that she did not understand the full meaning of the act which she signed.

The after circumstances relied on, that the husband paid the taxes on the property, attended to its repair and made improvements thereon at the charge of the community, have little, if any, significance. Such dealings bjr the husband with regard to the separate property of the wife are so natural and . common that -they have no weight upon the question of title,.and confer only a right to reimbursement out of the wife’s separate estate.

We have before us a perfectly clear and unambiguous contract. In a recent case we held (quoting from the syllabus) : . “ When parties reduce their contracts to writing, and when the terms of the •contract exhibit no uncertainty or ambiguity as to the nature, the ■object and the extent of the agreement, it is presumed the writing ■expresses the true and complete undertaking of the parties. Equity may reform and correct even contracts unambiguous on their face, ■on clear proof that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed on and had intended to embody therein; but to support such relief there must be clear proof of the antecedent contract and of the error of committing it to writing.” Ker vs. Evershed, 41 An. 15.

The evidence in this case furnishes no such clear proof.

The rule laid down by us that “a husband who has been a party to an act of purchase, in which it is declared that the price belonged to the wife in her paraphernal right and that the property is to be such, can not afterward contradict it” (Maguire vs. Maguire, 40 An. 580) is founded on considerations of public policy and the security of titles. It would be robbed of efficacy if, after the death of the wife, he could open the door for such contradiction by simply saying that he did not understand the meaning of the words used in the contract.

It is therefore ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that the opposition of P. M. Gleich to the final account be and is hereby maintained, and that the administrator be ordered to account for the property known as No. 94 Fourth street and the revenues thereof as the separate property of the deceased, and to amend his account accordingly, without prejudice, however, .to any lawful claims which the community may have against said separate estate, appellee to pay costs in both courts.


author: Watkins, J.

text:
    No. 10,460.
    A. A. Woods vs. W. F. Halsey et als.
    1. In case an accommodation acceptor and indorser of a piece of commercial paper acquiesces in its retention by a bank discounting it, notwithstanding it has been in part paid, and the payment of the remainder extended, for which extension a new note is furnished to tlie bank, such acceptor having also endorsed said time note jointly with another, he is bound on both, and his * obligation is not restricted to the latter.

      2.In case of such acceptor’s making payment of the whole of the latter, both notes, will be extinguished; but if he refuse to pay more than half, because his obligation is joint, his obligation on the former would remain in full force. Hence* plaintiff having paid the whole of the joint obligation, is not entitled to reimbursement for the amount paid in excess of his share thereof.
    A PPEAL from the Civil District Court'for the Parish of Orleans. A Ellis, J.

      Harry H. Hall for Plaintiff and Appellee:
    1. Where a promissory note is drawn to the order of two persons and endorsed by both, they arc jointly liable, but arc not bound in solido. Oulver vs. Beovy, 19-An. 202; Barrow vs. Norwood, 3 Ba. 438; Baggett vs. Bightor, 4 B. 18; Bayley on Bills, 37; Ohitty on Bills (cd. 1821), 435.
    2. Parties will not be regarded as successive endorsers where they are joint payees of a note and themselves endorse it. In such a case it matters not which signs lirst, the note being payable only to their joint order, and transferable only by their joint act, they will be considered joint endorsers. Daniel’s Nogo. Inst. (3d ed.), 683; SAllen 41; 39 An. 202.
    3. Krror o£ law may be invoked as the means of preventing a loss or of receiving back what has boon paid or given under such error. Catholic Society vs. New Orleans, 10 An. 74; C. C., Art. 1846 (1840).
    4. The same presumption which throws on the plaintiff in repetition the proof that what he has paid was not due, throws on his opponent, when this fact has once been proved, the bnrthon of proving that the payment was made knowingly and with tlic knowledge that what was paid was not due. Catholic Society ys. New Orleans, 30 An. 74; Toullier, Sec. 70, pages 91,92, 93.
    Bayne, Denégre & Bayne for Defendants and Appellees:
    Plaintiff sues to recover half of the amount paid by him on a note held by defendant on tlic alleged ground that he paid in error and without being bound legally or by any natural obligation or interest.
    Plaintiff was sole endorser upon a note of $20,106.07, and upon the payment of $1000 by the principal an extension of time for sixty days was granted, and this extension was endorsed upon the old note, which was retained by the holder, and a new note for the extension of sixty days was given, which was endorsed by him and A. Or. Ober, and when this was reduced to $4722.28 by payment made by the principal debtor, the balance was paid and the new and old notes wore then surrendered to him. Some months after this payment he claimed that he paid in error and without any natural obligation or interest to pay.
    In obtaining an extension of time, giving a new note, the old one being retained,, there was no novation of the debt discharging him from his obligation. C.O. 2181, 2186, 2188; Union Bank vs. Sloeomb, 34 An. 27; 5 An. 508; 4 An. Bep. 510; 13 An. 93; 12 An. 34, 299; 14 An. 54: 32 An. 826; 33 An. 1414; 34 An. 534; Hanning’s Unreportod Cases, 424.

      The extension of time was granted by defendant at the request of the plaintiff, and ' to enable him to reduce, as much as possible, the amount ultimately to be paid by him by securing payments from the principal debtor. The amount was thus reduced more than one-half, and' during the delay thus granted at the instance of plaintiff, defendant lost his chance of recovery from the principal debtor. The situation of defendant was thus changed at the request of plaintiff and to his advantage, and he could not restore defendant to the position he was in prior to granting the extension, and can not now recover the money paid by him. Thompson vs. Chretien, 8 An. 120; 30 An.53; 5 Rob. 523; 9 Rob* 338; 7 Rob. 529; 2 La. 430; 12 An. 34; 4 Rob. 208; 16 An. 217; 27 An. 640; Bigelow on Kstoppol. Secs. 484, 504, 506.
    There can be no recovery when contract is entered or duty.complied' with to avoid litigation. 5 La., Rep. 113.
    Plaintiff fails to prove that he paid in error, and himself testifies that ho refused to sign, except jointly, with another, binding himself’for one-lialf of the note, and yet, thus knowing, as he swears, that he was hound only for one-half, he paid the whole of the balance. 8 An. 119; 9 Rob. 388; 7Rob.529; 4 Rob. 208; 16 An. 344: 22 An. 14.
    The burden is both upon him, both to prove payment in error and without any ' natural obligation.or interest to pay. Prescott vs. Cooper, 37 An. 533; 33 An. 3434; Brquhart vs. Gore, 4 Rob. 208; 7 Rob. 529.
    And he should show that he was led into error by the defendant. 22 An. 14; 4 Rob. 208; 5 La. 114; 16 An. 344; C. C. 1846; 10 La. 374.
    There is no recovery for money paid from an error of judgment. 26 An. 266 7 Iiob. 425, 529 ; 39 An. 588; 13 An. 455.
    The plaintiff bound himself first for the value of twenty-two bonds of $1000 each, afterward.as sole endorser of note for $20,106.07; after $10,000 was paid this note was extended for sixty days, when it matured; ho waived protest, and asked, for time in order that more might be realized from the principal debtor and have his liability reduced. This extension continued for two years, and in the meantime the debt was reduced to $4722.07, which he paid, and received then the old note of $20,106.07 and the new note of $10,000, with the endorsements on them showing these extensions. Months afterward he makes the prosonl claim as for payment in error and without any natural obligation to pay. He can not restore defendant to the condition which he held when the extension-was obtained. He can not, in good conscience, recover from defendant. 9 Rob. 338; 7 Rob. 529, and cases cited.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff demands $2362.45 in reimbursement of money paid defendants in error and without being under any natural obligation to pay same.

His contention is that on the 10th of February, 1887, defendants held a certain promissory note for $10,000, bearing date June 9, 1885, and maturing sixty days thereafter, whereby the Chalmette Mills promised to pay to the- order of A. G. Ober and petitioner jointly said sum, which had been reduced by partial payments to $4724.90. That said note was endorsed by the payees, who thereby became liable jointly, and not in solido, to any future holder of said paper. That on said 15th of February, 1887, said note was by the defendants duly presented to the petitioner for the payment of said balance, they averring his liability therefor.

That he paid the full amount of said balance, relying on defendants’ representations as to his liability therefor, and truly believing himself to be bound for the payment of the full amount, whereas, in truth and fact, he was only bound on one-half thereof, being a joint endorser on said $10,000 note with A. G. Ober, to whose joint order same'was made payable. His further contention is, that his endorsement was only for accommodation, and wholly without any consideration as to him.

In effect the defence is, that plaintiff is and was primarily bound for the whole, and consequently there was no error in his making .payment as he did; and if he was not so bound, he was under a natural obligation to pay said sum, and has no right of action for its reimbursement.

There was judgment for plaintiff, and defendants have appealed.

The facts appear to be as follows: At the date of the transactions under consideration the plaintiff, as well as the defendants, were stockholders and directors in the Chalmette Mills, and plaintiff was the acting secretary of that corporation.'

The corporation being desirous of obtaining some money with which to tide over some financial difficulties, defendants negotiated a loan on the faith of- the plaintiff’s endorsement; and on the 12th of April, 1884, a demand note of the company was executed for $20,106.-67, with 8 per cent, interest, signed by A. G. Ober, president, and plaintiff as acting secretary, payable to the plaintiff’s order and by him endorsed. On the 9th of June, 1885, the sum of $10,000 was paid, and a sixty day note for $10,000 was executed by said corporation officers, payable to the order of A. G. Ober and the plaintiff, jointly, with 7 per cent, interest, and same was by them jointly endorsed. There was made contemporaneously a statement showing a balance due to that date, of $821.58, in excess of the $10,000 note, wdiich was paid on the 12th of June thereafter, and appropriate memoranda endorsed on the demand note. All of these were retained in the possession of defendants, until February 10, 1887, when the bal■anee due was paid by plaintiff, and they were then surrendered to him.

While there is some variation between the statements made by the plaintiff and defendant, Hoffman — and there were no other witnesses —we are- satisfied, from a critical examination of the whole of the evidence, that the $10,000 time note was intended and accepted as an evidence of the extension of the time for the payment Of that •sum for a period of sixty days from its date,r June 9, 1885. This paper carries on its face satisfactory proof of that fact, in that the original note was due “on demand,” and the latter was payable “sixty days after date.”

Manifestly the object in view was an extension of time, and this form was agreed upon between Ober, president of the debtor corporation, and the creditor defendants. This new obligation and the memoranda endorsed contemporaneously on the demand note evidence this fact. In this light it seems reasonable that the creditors should have retained the original obligation as well as the supplementary one. There was certainly no intention on the part of defendants to novate the debt. The new note shows the contrary. The only substantial differences between the two are the extension of time, the addition of Ober as payee, and the reduction in the rate of interest from 8 to I per cent. We view this new note as a species of collateral paper, evidencing new and additional stipulations between the contracting parties and the modification of the terms of the original agreement, and not the novation or extinction of it.

In furtherance of this theory we note the admissions of the plaintiff, as a witness, to the effect that he consented to endorse the demand note to enable the corporation to obtain money to relieve its embarrassment, and that it was upon the faith of his individual acceptance and endorsement of this accommodation paper that defendants made the loan. He states that he ■ knew that defendants held the demand note, and that he saw it in their possession when he accepted and endorsed it. Then there is no doubt of the fact that the demand note became a primary obligation of the plaintiff, and so remained up to the date of the issuance of the time note. In reference to that paper the plaintiff states that some months after its execution he learned that the demand note had nob been paid, and expressed to the president of the corporation his surprise and dissatisfaction thereat, and was by him informed that it had been taken up. But he, at the same time, stated that he was in need of $10,000' for other purposes and requested his endorsement for that amount, but he declined compliance. That, - soon. afterward, Ober returned with the sixty day note, signed by him as president, and, after some deliberation and hesitancy, he (plaintiff) signed as acting secretary of the company and endorsed it personally and jointly with Ober, and delivered it to the latter, who carried it away.

Conceding- the correctness of this state of facts arguendo, another argument is furnished in favor of the proposition announced supra, and that is to the effect that the acceptance and endorsement of the-plaintiff of the time note was only as a personal accommodation to Ober to enable him to raise money for other purposes than those represented in the prior transaction with defendants and With which it had no connection.

On this theory the time note was confessedly not a novation or ex-tinguishment of the demand note, but wholly disconnected , with it-Such being the case, plaintiff’s averment of error should have been that he never signed a renewal note at all, and not that he paid in full a note for the payment of which he was only jointly bound with another.

That such is the position assumed by the plaintiff his own testimony furnishes conclusive proof.

“ Q. You went on and made a payment on this balance; why did you make that payment on the balance on the 10th of February, of $4700 after you had refused to endorse except jointly?

“A. In the first place you don’t quote me exactly. In the first instance I refused to endorse at all. He subsequently came back and asked me if he would go in jointly with me would I endorse it? I hesitated for some time and declined; and he discussed the matter with me and I finally yielded and consented to go in jointly with him.

“ Q. And you say you would not have signed it singly? ■

“A. I say I did not. I had already refused to sign it singly.

“ Q,. Then having endorsed it jointly, you understood you were in for one part, and Mr. Ober for one part?

“ A. Yes, sir.

“ Q. You understood you were bound for one-half, and Ober for another half?

“ A. Yes, sir.

11 Q,. Then why, having that understanding at the time you signed this note, or having that view of your obligation when you signed this note, is it you paid that balancé on the 10th of February?

“A. Because in the mean time, Ober had failed, and I supposed that either endorser would be liable for the whole amount.”

Then, it is clear that, in this transaction, the plaintiff dealt with Ober, alone, and not with the defendants. That in so doing, he relied on Ober’s statement, that he had taken up or retired the demand note, before the time note was endorsed, and that this statement superinduced plaintiff’s acceptance and endorsement of it. It is also clear that the plaintiff did not make any inquiry of defendant about it, notwithstanding the demand note bound him personally, and individually, and did not bind Ober, and was confessedly the property of the' defendants. The evidence abundantly shows that, in reference to the time note, the dealings between Ober and the defendants looked solely to an extension of time for the payment of the balance of $10,000 remaining due on the demand note; and, whatever may have been the representations of Ober to the plaintiff, in reference to the demand note having been paid or retired, it, also, fully shows that it had neither been paid or retired as a matter of fact.

The truth is, that defendants held both the demand note and the time note for $10,000, and on both of which plaintiff was bound. While it is true that plaintiff may have been overreached or deceived by Ober in the last transaction, he was undoiibtedly bound in a double obligation for the same debt to the defendants until the latter was discharged by payment. Notwithstanding he declined to endorse any other than a joint obligation with Ober, yet he paid voluntarily, and that payment discharged both his joint obligation and his own individual endorsement. In thus making payment he was not taken by surprise, nor does the proof show that defendants made any representations as to the extent of his obligations, on which plaintiff acted. On the contrary, the knowledge of defendants’ continued possession of the demand note was brought home to the plaintiff more than a year prior to his making payment, and hence he was informed that Ober’s statement was untrue; and yet he made no protest or complaint to the defendants, though they repeatedly urged him to pay.

The fact is that plaintiff had consented that defendants should accept payments from other persons than himself, without prejudice to his endorsement; and that defendants reciprocally consented to an additional extension of time, until the affairs of the insolvent corporation could be liquidated, and the proceeds realized from liquidation applied, as far as possible, to the satisfaction of the debt, and to hold him for the residue only.

A statement in the record (in plaintiff’s brief at page 11) shows that on the 31st of July, 1886 — more than one year after' the date of the time note — the sum of $5000 was paid on it “by dividends from liquidation of Chalmette Mills;” and on the 11th of December, following, an additional $1250 was paid from the same source. It is the resulting balance of $4724.90 that the plaintiff paid in settlement.

On the whole we take it to be clear that the time note only evidenced the extension of the $10,000 of the original debt, for the payment of which the plaintiff was personally bound, and that if he had been sued on the demand note the execution of the time note would have been no defence. Hence while the payment of the latter discharged the former, its existence did not; therefore error in the method of or amount of payment made on the latter can not relieve plaintiff or ground his action for reimbursement.

The judgment appealed from is erroneous and must be reversed.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that the demands of plaintiff be rejected and disallowed, and that he be taxed with costs in both courts.

Judge Fenner absent.


text:
    No. 10,523.
    In the Matter of the Succession and Community of Guillaume Duhé. Opposition of John G. Moll to Administratrix’ “Restatement” of Account.
    1. A matter tendered as an issue on an executrix’ final account, regularly opposed by a creditor of tlie succession, evidence adduced tlioroon pro et con., and finally and contradictorily determined by a definitive judgment on appeal can not be thereafter litigated between the same parties.
    2. Such a decree constitutes res adjudícala.

      3. When, upon the final trial of such an account in this court on appeal, the executrix is adjudged and decreed to restate her account “according to law and the views therein expressed,”, it is not competent for the executrix to raise new issues, hut she is bound to comply with the decree and restate her ease accordingly. The original controversy is atan end and old issues cannot he again agitated and reversed on her restated accoimt.

    APPEAL from the Twenty-Sixth District Court, Parish of St. John the Baptist. Rost, J.

      Jules Reine for the Administratrix, Appellant.

      L. DePoorter, contra.

   The opinion of the court was delivered by

Watkins, J.

This appeal is a supplement of a previous one, in the same succession (41 An. 209) and brings up for review the administratrix restated account, and opposition of Moll, a special mortgage creditor.

The account presented allows in favor of the minors of Duhé’s first marriage, in capital and interest, the sum of $3604.88, and to its payment applies the proceeds of the adjudication of the community real estate to the deceased, as surviving partner of the first community, by preference; and, by this means, there is a balance of $195.48 remaining due and unpaid said minors, and nothing applicable to the payment of opponent’s mortgage, which is first in rank as to property of the second community. Without attending to details, we may state, that this item of credit is the chief ground of opponent’s Complaint.

If his opposition should not prevail, and the administratrix’ account be homologated, he would lose his entire debt, as the succession is insolvent.

It is sufficient to say that the allowance vel non of the minor’s claim, as now presented, is precisely the same question that was discussed and determined by us when the original account was examined. 40 An. 209.

The grounds of opposition are: (1) that the account has not been recast and restated conformably to the opinion and decree of this court; and (2) that our previous decree finally determined all the litigated issues in said succession, and issues thus terminated can not be litigated anew on a restatement of an account in pursuance of said decree. The latter is in purport a plea of res judicata.

In pursuance of the same theory evidently the opponents’ counsel has filed what he denominates “ an exception and motion to dismiss appeal,” but which, in effect,is an answer to the appeal of the executrix and a reiteration of the former plea, though clothed with slightly different phraseology.

On the trial of the account, counsel for the executrix offered proof of the minor’s claim as to the amount the item mentioned ante exceeded that allowed in our previous, judgment and decre.e.. To this offer of proof opponent’s counsel objected on the grounds stated in his opposition, and his objections being sustained and the proffered testimony rejected, eounse 1 for the administratrix reserved a bill of exceptions. The ruling of the court resulted necessarily in the rejection of the tendered account and a judgment sustaining the creditor’s opposition. Was the judge a quo right in thus ruling and deciding?

Reference to our former opinion will show that, when the property of the first community was adjudicated to Duhé, the item of merchandise valued at $2000 was not included in the proces verbal of adjudication, but it does appear on his account of tutorship subsequently filed and homologated by a chambers and ex parte decree.

When his surviving wife, as administratrix, filed her 'final account, the one last exposed, she placed the minor’s claim of $2818, with interest, as stated in the aforesaid tutor’s account, with rank of legal mortgage and to be paid in full from the proceeds of said adjudication in preference to opponent’s special mortgage. The present opponent opposed that account and specially averred that there was no such stock of merchandise on hand in 18VO at the death of the decedent’s first wife, and mother of the minors; and in the alternative alleged that “if there was, there 'is in the record no sufficient proof of its existence.” In our opinion, at page 215, we say:

“ On the trial of the account and opposition there was no other proof offered of the existence and the value of the stock of goods and merchandise, placed at $2000, than the inventory of the first community,” and “ to the introduction of same opponent urged several objections,” enumerating them. On considering the question we said: 1 The judgment and inventory do not constitute such proof of this item as is necessary to establish it as against a special mortgage creditor of the tutor, individually. In the adjudication to the surviving husband of their mother’s half interest in the common property there is no mention made of it; and opponent was not cited and made a party to the final account, which is relied upon as establishing it. Opponent put the administratrix fully upon, her .guard by specially denying and challenging the validity of that item... . *. * * This item was properly rejected by the judge a quo, and the debt of the minors reduced to $1818; but it correctly held that it was secured by the ranking mortgage. This reduction'will enable the opponent to realize the amount of his debt, with interest and 10 per cent, attorney’s fees, and there will be a surplus remaining.”

On this hypothesis various amendments were suggested and enumerated, and amongst them is the following:

<£ 8. The amount due the minors must be reduced from $2818 to $1818, etc.”

We have no doubt of the correctness of the conclusion of the District Judge. Our former decree forms res judicata as to the claims of the minors, and the proffered evidence was properly refused.

Judgment affirmed.

Fenner, J., absent.


author: McEnery, J.

text:
    No. 10,512.
    The State of Louisiana vs. Wm. Ford.
    Whore there is a difference in statement of facts between counsel and the trial judge, the latter will be accepted.
    It is not necessary to the competency of a juror that he should be a scholar, and understand tiie definition of every word used in the course of a trial, by witnesses, counsel and the court. It is sufficient if he is conversant with the English language so as to understand in substance the argument of counsel and the testimony of witnesses.
    When erroneous statements are made by counsel which are instantly corrected by the judge, and the jury cautioned against them, the verdict of the jury will not be set aside.
    The Supremo Court will 2iot interfere with the discretion of the District Judge in the enforcement of rules of decorum in their courts. State vs. Duck, 35 A12. 7Gh
    When a juror on his voir dire states that what he has heard about the case has made some impression upon his mind, but that he could go into the jury box free from bias or prejudice and try the case fairly and impartially according to the evidence and the instructions of the court as to the law applicable to the ease, he is a competent uror.

      Because the names of witnesses appear on the back of the indictment, imposes no-duty on the prosecuting attorney to swear them as witnesses. The accused has. no right to require the prosecution to call and swear them so that he can cross-examine them.
    There is no law in this Mate requiring that the accused shall be tried by jurors selected from his own race.
    When it appears by the record that a juror has been peremptorily challenged by the accused and did not serve on the jury, the error in the ruling of the District Judge declaring his competency, will not invalidate the trial, as the accused was not injured thereby.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      Walter II. Rogers, Attorney General, and James Andrews, District Attorney, for the State, Appellee.

      Ii. J. Joffrion and John O. Wiekliffe for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was convicted of murder and appealed.

There are in the record numerous bills of exception to the rulings of the trial judge, a motion for a new trial and a motion in arrest of judgment.

Bills 1, 3, 4, 5 and 6 may be considered together. In these bills-there is a wide difference in the. statement of facts presented by the. counsel for the accused and the trial judge. It has been repeatedly held that when there is a difference in statement of facts between counsel and judge, the latter’s statement will be accepted.

The first bill is to the effect that the juror to whom objection was made was not familiar with the English language. The juror’s answer to interrogatories was that he understood the English language sufficiently well to comprehend the testimony of witnesses and the arguments of counsel. The trial judge says that after a thorough examination of the juror he was satisfied that he was sufficiently conversant with the English language to make a competent juror. It is not essential to the competency of a juror that he shall be so educated as. to understand the meaning of all words in the English language. From the juror’s answers and the result of the trial judge’s examination of the juror, it is evident that he was a competent juror. State vs. Williams, 34 An. 959; State vs. Offut, 38 An. 364; State vs. Dent, 41 An. —.

No. 3. This bill was reserved to the ruling of the trial judge as to the competency of the juror Bui. The juror answered on his voir dire that what he had heard about the case had made some impression upon his mind, and that he would to some extent be influenced by this; that he had no prejudice for or against the accused; that what he had heard of the case did not purport to be the facts; that the person he had heard talk about the case did not pretend to detail the facts; that what he had heard had not created a firm or fixed opinion upon his mind, and the impression created by what he had heard would readily yield to the evidence, and that he would try the case fairly and impartially, according to the evidence adduced and the law as given by the court.

The juror had no fixed opinion. The impression that had been made upon his mind was from facts stated to him by persons who did not pretend to give the facts of the case. This impression would readily yield to the evidence. He was therefore a competent juror. State vs. Dugay, 35 An. 327; State vs. George, 37 An. 786; State vs. Ford, 37 An. 443; State vs. DeRance, 34 An. 186; State vs. Dent, 41 An. —.

No. 4. The juror Harveys was asked if he would judge of the innocence or guilt of the accused by the preponderance of evidence or whether he would give the accused the benefit of a reasonable doubt. He’answered that if there was a preponderance of evidence in favor ■of the State, he would give the State the benefit of this and convict. He also stated he would not give the accused the benefit of a reasonable doubt. In answer to questions by the court the juror stated that he would follow the instructions of the court upon questions of law, and that if the judge in his charge instructed him that the accused should be given the benefit of a reasonable doubt, he would do so. That he would apply the law as given by the court and would try the accused accordingly.

The definition of a reasonable doubt is one of law and is embodied in the charge of the judge to the jury. The juror answered he would apply the law as given by the court. These are definitions of terms of purely legal significance, which it is not expected that the mass of the people will understand. It is therefore necessary for the trial judge to instruct the jury in relation to their meaning and employment.

No. 5. J. E.- Seguin, on his voir dire, answered that he thought a man should be sent to the penitentiary for killing another in self-defence. The trial judge says, “ it being evident that the juror did not fully understand the question of counsel the court proceeded to examine the juror.” Under the examination by the court the juror stated that if the court instructed Mm that under the law, if the party doing the killing acted in self-defence, he should be acquitted, he would respect the law and act according to the instructions of the judge. * * * The juror also stated that he had not fully understood the question of defendant’s counsel when he answered that a person killing another in self-defence should be sent to the penitentiary.”

The statement of the trial judge and the answer of the juror, when he fully understood the question, dispose of defendant’s objections.

No. 6. In answer to a question of defendant’s 'counsel the juror Bardelere stated that he had conscientious scruples to the infliction of capital punishment. The State was satisfied with the juror and made no objection to his competency.' It is difficult to assign a reason for the defendant’s objection to the juror, as the conscientious scruples of the juror, if they existed, were favorable to him. As the District Attorney made no objection to the juror it is to be presumed that he was impressed, as was the trial judge, with the fact that the juror was confused and did not understand the question addressed to him.

When understanding the question, and in reply to interrogatories propounded by the judge, he stated, “ a verdict which would inflict the death penalty would depend upon what the party had done. If the party accused had done enough to deserve death, he would agree to a verdict that would hang.” This juror’s answers also dispose of defendant’s objection to his competency.

These jurors were peremptorily challenged by the accused and did not serve on the jury. If there had been error in the ruling of the trial judge as to their competency and qualification it would not be sufficient to invalidate the trial, as it appears from the record that the jurors were peremptorily challenged by the accused. State vs. Ford, 37 An. 443; State vs. Summers, 38 An. 301; 35 An. 315; 37 An. 774.

Nos. 2 and 8. These were reserved to the course of examination pursued by the District Attorney in the examination of a juror, and to the argument of the attorney, assisting the District Attorney, to the jury-

In both instances an objection being made by counsel, for accused, the court interfered and sustained the counsel for the accused and stopped the course of examination of the juror by the District Attorney, and the argument by the assistant attorney. In the latter ease the jury was instructed by the judge to disregard it, and to be guided only by proof ” in the case. The accused obtained all he asked for. It was the only relief the court could afford Mm. There is no force in the objection, as the court will not interfere with District Judges in the manner in which they enforce discipline and decorum. State vs. Duck, 35 An. 764.

No. 7. The counsel for defendant made a motion that the court direct the District Attorney “ to call, swear and put upon the stand ” certain witnesses whose names appeared upon the back of the indictment. These witnesses were not called and sworn in behalf of the prosecution, and the defendant’s reason for the motion is that he is entitled to cross-examine said witnesses.

There is no law authorizing the accused to direct and control the prosecution against him. He has no right to direct in what manner the District Attorney shall conduct the case against him and control him in the selection of his witnesses and the introduction of the evidence of the prosecution. Nor has he the right to impose his defence upon the District Attorney.

If the witnesses were material and important and knew facts which would aid and assist in the defence, it was the duty of the attorney for the accused to summon and examine them in his behalf.

No. 9. Motion for a new trial.

The motion only alleges facts set forth in the several bills of exception and was therefore properly overruled.

No. 10. Motion in arrest of judgment.

The motion alleges that the accused is a negro and that the jury was composed entirely of white men. The record does not show that any juror was excluded from the jury on account of his race or ■color. There is therefore no error on the face of the record upon which to base a motion in arrest of judgment.

There is no law in this State requiring that the accused shall be tried by jurors selected from his own race. In civil matters all distinctions on account of race, color or previous condition of servitude have been abolished.

Judgment affirmed.


author: McEnery, J. Watkins, J. Fenner, J.

text:
    No. 10.456.
    The New England Mutual Life Insurance Company vs. M. C. Randall et als.
    When a creditor receives property from a debtor for the payment of a debt for which security has been given, it is the duty of the creditor to hold the same impartially for the joint benefit of himself and surety. He has no right to dispose of it or appropriate it without the surety’s consent.
    When the creditor intends to look to the surety for payment, he is compelled to preserve unimpaired all his rights against the debtor.
    If the creditor, therefore, docs any act without the surety’s consent, which impairs his rights of subrogation, or the means of enforcing his claim against the principal in case he should pay the debt, the surety will ho discharged.
    The right of subrogation to the rights of the creditor is an essential part of the contract of suretyship.
    APPEAL from the Civil District Court for the Parish of Orleans. Mbwroe, J.

    Bayne, Dengére & Bayne for Plaintiff and Appellant:
    Plaintiff recovered judgment against M. O. Randall for $38,233.93 for deficiencies as its agent, and sues his four sureties for $2500 each, who bound themselves as such for that snm, It was objected that the bond was not formal and had not boon accepted by plaintiff. Plaintiff claims that the bond is sufficient in form and was accepted and acted upon by the company for ten years or more.
    If there was any defect in form the sureties, in signing the bond, waived it. State vs. 'Winfrco, 12 An. Rep. 645, and cases cited therein; Ponnyman vs. Barrymore, 6 Mart. N. S. 498; S Rob. 227; 3 An. Rep. 481; School Directors vs. Judice, 39 An. Rep. 898; 40 An. 705; 27 An. 568; 20 Wall. 165; 78 JCy. Rep. 435.
    The bond was sent by Randall on May 20, 1885, as a bond, and was accepted by the company, and he acted as agent for ton years. Maguire vs. Bry, 3 Rob. 196; 89 An. 899; 2 La. 47; 14 An. 725-67.1; 33 An. 736.
    The amount of the deficiency is established by the judgment against the principal, by his admissions and by testimony introduced by defendants. Putin vs Blaise, 19 La. 397; 38 An. 734; 40 An. 705.

      Payments made on account by the principal, or the delivery of collaterals on account after the deficiency, as partial reparation of the wrong, which in no manner injure the sureties, does not impair or destroy their liability. 97 U. S. Rep. 590; 11 Wall. 500; 11 An. 179; 13 An. 59; 30 An. 159, 387; (i How. 283; 29 An. 844 3 An. 688; 131 Mass. 86; 136 Mass. 226; 35 Fed. Rep. 99; 1 An. Rep. 76; American lam. Register, A. S., Yol. 8,110; 9 Wheat. 720; 11 Wheat. 184; Mayor vs. Kelley, 93 A. Y. 467; 21 A. Y. 88.
    The evidence and judgment establish the deficiency, which is several thousand dollars in excess of the amount of the bond and sum claimed from the sureties. The bond was signed by the defendants for the purpose of protecting plaintiffs from any unfaithfulness of the agent. Its condition has been violated, and they are liable. The sum for which defendants are bound is much less than the actual loss sustained by plaintiffs.
    J. MeGonnell and F. N. Butler for Defendants and Appellees:
    1. The evidence shows: 1. That the plaintiff company in Boston, requiring their-agent in Aew Orleans to give bond, did, on May 8, 1875, write him to furnish them with the names of parties who were willing to become sureties; and later wrote that a bond was being prepared by their counsel which would be sent out.
    2.on the 20th of May,the instrument sued on was signed and forwarded,by which certain parties agreed to become security for Randall; on receipt of which the president of the company wrote: (a) complaining of the form of the instrument; (b) that the names of the sureties must be submitted to the finance committee; (c) that their names could not be submitted to the said committee untiljie knew the bond was legal in form.
    8. On the 10th of August the president rejected the proposed bond; because, first referring to a former letter of June 3, specifying objections to the form of the bond, he writes as follows: “Inow enclose two blank forms of bond, which please have properly executed-and returned.”
    4. On the 30th of October, the correspondence of the president closes with a reiteration of his objections to the bond.
    2. From the correspondence of the president referred to above it does not appear that the company ever accepted this offer to become sureties; or that the company gave notice to, or in any manner ever had communication with the defendants until the lapse of nearly eleven years from the date nf the instrument sued on.
    3. ’Under these circumstances the instrument sued on is inoperative and void as a bond for want of acceptance. O. O. 3035, 1798, 1S00; 33 An. 578 ; 32 An. 501; JJurge on Suretyship, page 16.
    4. Suretyship is an auxiliary contract by which the person becoming surety makes an agreement with the creditor. There being no agreement or aggregatio mentium in this case, between the defendants and the plaintiffs, the plaintiffs’ action must fall. O. O. 3035,1798, et seq.

    5. To convert a proposition by one party to another into a contract, is not sufficient to show strong probability that it was or would have been accepted under certain circumstances; acceptance, actual, final and irrevocable, must be proved. 33 An. 578, 580; 1 Ra. 190. Suretyship is a consensual contract and can not be made without the consent of the creditor. 32 An. 501; C. C. 3043.

      7. In this case, if the plaintiffs had accepted, it was their duty to have given notice of such acceptance to the defendants, and this within a reasonable, time. 7 An. 886, S88.
    S. Suretyship is a contract created and governed by the provisions in the Civil Code, and not by the common law. 82 An. 502.
    <). If any personal obligations ever arose under the instrument sued on, they were prescribed; as nearly eleven years elapsed from the date of its signing before the plaintiffs made any response to the defendants, and that was only a notice of the present suit. O. O. 85áá and 3540.

      Andrew H. Wilson on same side:
    A writing wherein it is stated, “We, the undersigned, hereby agree to become the security of M. C. Randall,” etc., is only an offer to become such. Even if a bond in form, acceptance thereof is necessary to complete the obligation o£ surety-ship, and that acceptance should be clearly, unequivocally and affirmatively shown. C. C. 3039, 3035; Troplong du Cautionnemenl, Rocs. 138,131, 118. Gay & Oo. vs. Blanchard, 31 An. 197.
    Courts uniformly construe sureties’ obligations very strictly, and refuse to extend them by implication, construction or otherwise. 31 An. 659 ; 6 Rob. 50; 9 Wheat. 680; 21 An. 727 ; 30 An. 737; 6 M. (X. S.) 198; 8 Rob. 227; Eell on Guaranty and Suretyship, note on p. 130.
    If such a writing were a good and valid bond, and Randall, the principal, wore reengaged and reappointed agent after two years’service, such re-engagement and reappointment abrogated the first appointment and the bond given for faithful performance of services thereunder.
    Particularly is this the result where second engagement confers full powers on the agent, making the agency co-extensive in this respect with the company reengaging him, and thus changing materially his and its condition.
    Act 21 of 1877, Reg. Sess., reorganized and recreated the status of non-resident and foreign insurance companies and their agents in Louisiana, and required the conferring of all full powers on agents as enjoyed by the companies themselves. The conferring of new, full and co-ordinate power and authority on an agent, who was prcvioilsly only a clerical, local employ! with no power or discretion, and his re-engagement and reappointment with such new and full power as required by law, terminated his former engagement and extinguished the suretyship accessory to it. This occurred as well by novation and by the change of conditions of both principal and agent as by the fact of expiration of first engagement and re-ongagement and reappointment. C. C. 3059, 2188, 2189, 3027.
    “ Suretyship is an accessory promise.” C. C. 3035.
    It falls with the principal obligation. 15 La. 166.
    “ Suretyship * * * is to be restrained within the limits intended by the contract.” C. O. 3059. Please see: Green vs. Locke, 31 An. 656; McGuire vs. Woolidge, 6 Rob. 50; Miller vs. Stewart, 9 Wheat. 680; Xasnaelit vs. Winlcelman, 21 An. 727; Gerson vs. Hamilton, 30 An. 737; Troplong du Gautionnemont, p. 37, Xo. 118; p. 118, Xo. 171; Brandt on Suretyship, Sees. 79, 80, 330, 312; 61 X. Y. 356; 2 Caines’ Cases in Error, 1.1 Paine 303; 11’a. St. 318.

      General and continued negligence on the part o£ the creditor during eleven years, and want of proper investigation into the conduct of the agency, and the creditors’ consenting that its agent at the same time might engage in other engrossing occupations, and its laches in neglecting to properly.suporvise the agency through its officers, whose duty this was, make it responsible for losses incurred through its agent. And the fact that the sureties were never once notified of any or all of these hazardous privileges allowed the agent, nor of the lax supervision or investigation of the agent’s conduct of his business, nor of the improper performance of duty by the visiting supervisor, concludes the responsibility of the company for loss suffered thereby.
    (Facts are stated in brief applicable hereto. One of which is an unpaid loan and loss of over $8000 to fire insurance business, a “side enterprise” allowed the agent.)
    The discovery and investigation of the agent’s shortage in 1886, and the creditor’^ settlement thereof with the agent, without consultation with sureties or notice to them, whether such arrangement be payment or giving of security, released the sureties.
    If such arrangement was “ giving of collaterals,” and the creditor has disposed of them and placed it beyond its power to subrogate the sureties to them, the sureties are discharged. If such securities were given in payment, the sureties are entitled to have them credited at their fullest value — for such value as they would bo worth in a surety’s hand, and as demonstrated in brief.
    If their value is not clearly shown by the creditor, the highest value should bo allowed that they may by reasonable possibility turn out to be of. C. O. 8061, 8062; Troplong du Cautionnement, Secs. 376, 381, 570, 571, 582, 583; Ledouxvs. Rucker, 5 An. 500; Scott vs. Featherston, 5 An. 313; Saulet vs. Trepagnier, 2 An. 429; Succession of I’ratt, 16 An. ,357; Allison vs. Thomas. 29 An. 731; Mayor vs. Blache, 6 La. 514; Brandt on Suretyship, Sec. 370, pp. 498, 499; Sec. 372, pp. 501, 502; Hereford vs. Chase, 1 Rob. 23; Commissioners vs. Cardeviolle, 4Rob. 506.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sued M. C. Randall, its agent, in the City of New Orleans, and Henry Ginder, E. C. Palmer, P. H. Werlein, and C. Mehle, the sureties on his bond, for the sum of $33,233.93, the amount of the defalcation of the agent Randall to said company.

There was judgment against Randall on his written confession, which was made final, and the sureties were released, from which judgment the plaintiff has appealed. The answer of the sureties is substantially as follows: they plead the prescription of one, two, three, five and ten years; they allege that there is no sum of money due said company by Randall; that if any sum is due to the company by him, it arose through the negligence of the company in failing to compel him to make prompt returns of collections; that if plaintiff is entitled to a judgment against defendants, they are entitled to receive from plaintiff the sums of money received from the assets turned over to plaintiff by Randall, and that they are entitled to a judgment in reconvention for said amount; that if any liability existed on the part of the sureties, they have been discharged by plaintiff’s own acts and doings, made without the knowledge or consent of the defendants in regard to the property and assets turned over and assigned to plaintiff by Randall, and converted to its own use and benefit by said insurance company. The evidence establishes, the liability of the defendant Randall in the amount for which judgment was rendered against him. There is no evidence that the company was guilty of any negligence that contributed to Randall’s defalcation. A demand was made upon the sureties and suit commenced before prescription had acquired.

The only serious defence is that the sureties are discharged by the company’s acts in receiving property from Randall, on qccount of' his defalcation, administering it and converting the same to its own use and benefit without the knowledge or consent of the sureties.

Before and after the institution of this suit the company received from Randall a number of insurance policies, upon which it placed its own valuation, a fee due Randall in the insolvency of Carriére &Co., which it collected, a claim against Joseph Santini for $6315.88, which it compromised, as the evidence shows, at considerable less, than its value, and immovable property in Virginia, which the company in part disposed of and retained an interest, which it has valued in the remainder, and a cash payment from Randall of $740.11, and a transfer from Randall for commissions for policies renewed amounting, it is alleged, to some $9000 (nine thousand dollars). The face value of these assets was more than sufficient to extinguish Randall’s liability. The company admits it realized only $12,098.12 on these assets. The company received from Randall all the property he possessed, and administered it as owner, disposing of it and conveying it without the knowledge or consent of the sureties. It matters not whether the company received the full value of the assets turned over- to them by Randall.

The question is whether the company has changed the obligation of the surety and impaired any of the rights of the surety against the principal.

The surety is discharged when by the act of the creditor the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.” R. O. C. 8061.

The company received voluntarily from the agent Randall all of his property. It was appropriated by values placed upon it by the company and by Randall, and it disposed of all of it, either to the company or to others.

The duty of the company was, not to appropriate or dispose of the property, whether received before or after the sureties’ liability had accrued by the [defalcation of Randall, without the knowledge and consent of the sureties, but to hold it impartially for its own and the sureties’ benefit. 43 Me. 381; 8 Pie. 121; 4 Golas Oh. R. 129; o N. H. 353.

This the company.has not done. The plaintiff has placed the property beyond the reach of the sureties. They can not demand subrogation to the creditors’ rights against the principal, to which they are entitled under their contract of suretyship.

When the creditor intends to look to the surety for payment, he is compelled to preserve, unimpaired, all his rights against the debtor. If the creditor therefore does any act without the sureties’ consent, which impairs his rights of subrogation or the means of enforcing his claim against the principal in case he should be called upon to pay the debt, the surety will be discharged.

The sureties in the case may have desired to pay their obligation, which was for |2500 each, and take the -assets of their principal to the extent and amount of securing them against loss, and administer* them for their joint benefit. The evidence in the record leaves little-doubt but that they could have realized more from the assets of" Randall, had they received and properly administered them, oi; had; they been consulted about their disposition. In the petition of' plaintiff no mention is made of the transfer of the assets of Randall to the company, nor is there any credit given to the defendants for the sum realized on them.

The plaintiff contends that the acts of the ¡company in taking the property of Randall, operated an advantage to the sureties, and therefore they have no cause to complain. Admitting this to be so, the surety stands on the strict terms of his contract, and even should the act be beneficial to them, if it in any way changes the contract of suretyship, the surety will be discharged. The creditor has no right to make any change in the obligation. McGuire vs. Woolridge, 6 R. 50.

The right of subrogation to the right of the creditor is a part of the obligation, and an essential one, when the contract of suretyship is entered into. It exists whether the surety pays voluntarily or by compulsion. Offut et als. vs. Hendsley, 9 L. 12.

In this case it is clear that the creditor by his own act has changed the contract of the surety and has placed it beyond the power of the company to subrogate the sureties to its rights against the property of Randall.

Judgment affirmed.

On Application for Rehearing.

Watkins, J.

We have considered appellant’s application for an oral argument on this motion, but deem it unnecessary to depart from the rules of court, as the question on which it rests is one of law, and the mover’s brief is elaborate, and fully presents the authorities relied upon as supporting its theory.

That theory is that, having a final and unqualified judgment against the defendant for $33,000 as their agent, the plaintiff had the right to receive payment, or securities from him, for the deficiency, which was not covered by the obligations of the sureties.

For instance, plaintiff’s judgment being for $33,000, and the several obligations of the sureties aggregating only $10,000, Randall was at liberty to make a payment to the plaintiff in money, or to furnish it securities to the extent of the difference of $23,000, and the plaintiff had the right to appropriate same to the satisfaction of that difference — it not being covered by the sureties’ obligations — and that, only, when this deficiency had been first provided for, could the sureties complain of any after application of rights and securities of the debtor; and then, to the extent only of the injury suffered by the sureties.

As supporting this proposition, counsel cites a number of authorities. The general effect of those decisions is, that a partial release of any of the mortgages, or privileges of the creditor, releases the surety only pro tanto; or, in other words, the discharge of the surety only takes place, to the extent to which the acts of the creditor have prejudiced the recourse of the surety for reimbursement of what he may be obliged to pay, under the contract of suretyship. Or, as the case is put by Judge Story:

“On the other hand, if the creditor has any security from his debtor, and he parts with it without communication with his surety, * * that will operate, at least to the value of the security, to the surety’s discharge.” Story’s Equity Jurisprudence, Sec. 326.

A careful study of the question has satisfied us that the contention of the plaintiff’s counsel can not prevail, though the principles of law that are announced in the various authorities cited are well recognized by us.

We held, simply, that the insurance company received from Randall, the defendant, all the values he possessed, and converted them to its own use, without the consent of the sureties, and, in so doing, placed same beyond their reach, and deprived them of their rights of subrogation to the rights of the company, against their principal; on the theory that, when a creditor intends to look to the surety for payment, he is bound to preserve unimpaired all his rights against the debtor.

On this hypothesis our opinion proceeds and declares:

“If the creditor, therefore, does any act,| without the sureties’ consent, which impairs his right of subrogation, or the means of enforcing his claim against the principal, in case he should be called upon to pay the debt, the surety will be discharged.”

Our opinion rests upon an article of the Code, and McGuire vs. Wooldridge, 6 R. 47, and Offut vs. Hendsley, 9 La. 12; but, many other cases of like import and force can be cited. To point the argument in favor of its correctness we make the following quotation from the latter:

“ It being of the nature of the contract of suretyship, that the surety who pays, whether willingly or compulsively, has a right to demand the subrogation of all the creditors’ rights on his debtor, his property, and his sureties. This right of subrogation is the consideration (or a part of it) of the obligation which the surety contracts. There is a privity of contract between the surety and the creditor which compels the latter to preserve his rights for the former. If the preservation of these rights be burdensome to the creditors, they put an end to all trouble when the day of payment arrives by insisting on payment by the surety. No one can become surety against the creditor’s will, though he may against that of the debtor. The assent of the creditor is of the essence of suretyship, and no one can complain of the natural consequences of any contract into which he may enter.”

To this effect are many authorities. 8 N. S. 398; 3 La. 352; 6 La-514; 1 R. 212; 4 R. 506; 5 An. 266.

It follows that the surety has a right to stand upon the very terms of his contract, and the creditor has no right to make any alteration in it.

■ These principles are founded on provisions of the Code. Surety-ship is an accessory promise made to the creditor. R. O. O. 3035, 3045.

“ The surety is discharged when, by any act of the creditor, the subrogation to his rights, mortgages and privileges, can no longer be operated in favor of the surety.” R. O. O. 3061.

His discharge proceeds upon the theory, that the act of the creditor which deprives the surety of the right of subrogation of the former’s securities, violates their privity of contract, and prevents the latter from taking them to himself on paying the debt of the princi - pal, to the extent of suretyship.

Undoubtedly the creditor has a right to receive securities from the debtor, but he has not the right to appropriate them, and thus deprive the surety of the right of subrogation, in case of making payment. The creditor’s first and highest duty is to the surety; and he has nó right to first exhaust the debtor’s resources, and reduce him to a state of bankruptcy, and then call upon the surety to pay the balance that remains due.

We are thoroughly satisfied that our opinion is well grounded in law.

Rehearing refused.

On Application eor Rehearing.

Fenner, J.

I have given very close attention to the able brief for-rehearing, and to the argument cited in support thereof.

.These authorities certainly place a judicial construction on Art. 3061, Rev. O. O., to the effect that the partial release of any of the-securities of the principal held by the creditor only releases the debtor pro tanto. Barrow vs. Shields, 13 An. 63; 11 An. 179; 29 An. 844; 30 An. 159.

They rest upon the principle that the creditor has the right to take-payment from the debtor without discharging the surety from liabil - ity for any balance that may remain due; and so, if he has released,, or has applied to his debt, securities of fixed and certain value, at that value the sureties can not, on that account, claim discharge from liability for the amount remaining due after crediting the debt for such values.

• But I can not convince myself that the principle or the authorities cover such a case as the one before us, in which the creditor, after the defalcation of its employee, takes from him all the assets of every kind which he possesses, consisting of a mass of securities of contingent value, such as policies of life insurance on the lives of the debtor and of third persons, undivided interests in real estate, litigated ■ claims against debtors, unliquidated demands of various kinds, and, without notice to the sureties, proceeds, at its leisure, to reduce them all to cash by settlements, compromises and otherwise, and after crediting such cash on the excess of their claim above the amount of the sureties’ obligation, proceeds against the sureties for the balance.

The securities transferred had an apparent or potential value ■exceeding the total amount of the debtor’s liability. The policies of life insurance alone approximated, in amount, the total liability. Had Randall died the day after the transfer the policies on his life alone, with the amounts actually collected from other sources, would have wiped out the whole debt.

What right had the creditor, without notice to the sureties, to surrender these policies to the insuring companies at a trifling cash valuation? Non constat that the sureties might not have preferred themselves to' take these policies at the cash valuation to keep them alive, and thus secure themselves against eventual loss.

Might not the sureties have preferred to buy in the real estate which was sold in partitiqn, which sale may have been at a sacrifice, ■or which they might have desired to hold for a rise in value?

Might they not have chosen to resist the compromises and settlements of the liquidated and unliquidated claims, which the creditor chose to make, or to have paid him the amounts which he was willing to take for them, and to prosecute the suits?

These rights certainly belonged to the sureties under Art. 3061 of the Code, and the creditors had no right to deprive the sureties of them.

They had the right and the interest to see that the assets surrendered by their principal were so administered as to realize the utmost possible value to be appropriated in reducing the debt for which they were responsible, and to have a voice in such administration.

The creditor had no right to make compromises and settlements and surrenders according to Ms own whim without consulting the sureties, and without giving them even the chance of taking to themselves the benefit of such settlements, and, after denuding the principal of everything he has in the world, to turn his sureties over to a barren recourse against him.

Such unauthorized dealings with the securities turned over by the debtor, are inconsistent with the intention or with the right to pursue the sureties. He has deprived the latter of valuable rights of subrogation which inhered in their contract, and the penalty is the loss of his right to proceed against them.

It is said, however, that in this case the denial by the sureties of' their liability on this bond in any event deprives them of the right to notice and of the right' to complain of want thereof. They never made such denial until their answer in this suit, which was -not filed until after all the dealings above complained of had been completed. They were left in ignorance of any claim against them until after their principal had been shorn of every vestige of property to which they might have looked for protection under the unauthorized dealings of the creditor, and I think they were justified in settingup every •possible defence to such a suit.

I therefore concur in the refusal of the rehearing.

Pocho, J., concurs in this opinion.


author: Bermudez, C. J.

text:
    No. 10,538.
    The State of Louisiana vs. Henry Heuchert.
    An applicant from a Recorder’s sentence condemning him to pay a fine and in default, to be imprisoned for a number of days, for the violation of a municipal ordinance, cannotbo viewed as an accused in a criminal prosecution, by indictment or information, before a court of general criminal jurisdiction, for the commission of a crime punishable with death or hard labor or a fine, exceeding $300, and is bound, as a condition precedent to the filing of the transcript of appeal, to deposit with the cleric the amount prescribed by the rule.
    AetlG of 1881 and Act 19 of 188G, invoiced, applies to cases of prosecutions for crime and not to proceedings for dotation of city ordinances.
    On Rule Against the Clerk of the Court.

      O. W. Besancon for the Plaintiff.

      Branch K. Miller for the Defendant.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant complains that the clerk of this court refuses to file the transcript of appeal herein unless a deposit in money, to cover the costs, be previously made. He insists that under the provisions of Act No. 16 of 1884, amending Sec. 1042 of the Revised Statutes, no such prerequisite is allowed to be asked.

The answer of the clerk to the rule on him denies that this case is a criminal case, and avers that it is a civil case, in which the deposit should be made.

The mover states that he was prosecuted, convicted and sentenced by a recorder in the Oity of New Orleans for violating a city ordinance, and fined $25 or twenty days’imprisonment; that the constitutionality and legality of said city ordinance was specially pleaded by the defendant previous to trial and overruled, and that the defendant appealed to this court, the appeal being made returnable on Monday, February 3, 1890.

The act relied on by the mover is substantially to the effect that all expenses incurred by the * * * prosecution of persons accused or convicted of crimes * * * shall be paid by the respective parishes in which the offence charged may have been committed, or by the Oity of New Orleans, as the case may be, etc. * * *

Under Arts. 5 and 7 of the Constitution, criminal prosecutions must be by indictment or information, and in all such the accused enjoys the right to a trial by jury.

Under Art. 130, the Criminal District Court for the Parish of Orleans has exclusive general criminal jurisdiction.

By Art. 81, the Supreme Court is vested with appellate jurisdiction over criminal eases whenever the punishment may be death, imprisonment at hard labor, or where a fine exceeding $300 is actually imposed.

Under Act 80 of 1878, page 56, all appeals in criminal cases must be made returnable to this court within ten days.

A crime is an act committed, or omitted, in violation of a public law, either forbidding or commanding it; a breach or violation of some public right or duty due to a whole community in its aggregate capacity. 4 Blackstone 5.

The distinction between crimes against the State and mere violations of municipal ordinances and the bearing of constitutional provisions touching the respective modes or methods for the prosecution and punishment of offenders against the same, is clearly recognized by elementary writers and confirmed by frequent adjudications. Mayor vs. Meuer, 35 An. 1193, and authorities cited.

It is therefore apparent that the cases provided for by the statute invoked are those in which a person has been accused or convicted of a crime. Under the constitutional provisions, this could only be on a prosecution by indictment or information, with a jury trial, before a court of general criminal jurisdiction, the punishment being death, hard labor, or the actual infliction of a fine. 28 A. 654.

From the face of the rulé and from the record to which it refers, it appears that the proceeding was'not on a prosecution by indictment or information for the commission of any crime, before a court of general criminal jurisdiction, with jury trial, punishable by death, hard labor or a fine, appealable to this court within ten days. It is a proceeding nominally in the name of the State, but in reality in that of the City of New Orleans, for the violation of a municipal ordinance, before a mere police magistrate, officially vested with jurisdiction to enforce such ordinances; Art. 92, 136; City Charter 1882; Act No.'20, Sec. 49; the punishment of which is neither death, hard labor, nor a fine exceeding $300, and the judgment and appeal in which are not appealable and returnable to this court within ten days.

Act 19 of 1886, page 30, to which mover refers, provides that no costs shall be demanded from a party accused in any criminal prosecution in the State, and that such party shall not be required to pay any costs until he shall have been convicted and condemned to pay costs.

Secs. 1001 and 1002, R. S., are clear on the subject. Manning’s U. R. C. 395.

It provides an immunity in a criminal prosecution, and as we have found that this case is not one involving a prosecution for the commission of a crime, it finds no application on this occasion. So that, it is manifest, even if the statute invoked did, in terms, exempt an appellant from making in this court a deposit of money, this case, not being criminal in character, not one in which a person is accused or convicted of a crime, does not fall within its provision, and the-clerk had a right to require the deposit demanded.

It is therefore ordered that the rule be discharged with costs.

Poehé, J., recused.