text:
    No. 4856.
    City of New Orleans v. Esther Klein.
    The ground that the assessors and city administrators were not legally appointed, can not be urged in this proceeding. There is a law providing for the settlement of such questions.
    The objection that the parish tax, the school tax and the police tax embraced in the bill are for purposes of State institutions, and are unconstitutional, because not uniform, is without force.
    The constitution does not require that every tax shall be assessed throughout the State, but that taxation by the State shall be uniform throughout the State. The taxes now in question are local taxes, levied by the city in accordance with the statutes of the State, for the objects specified as applicable to the territorial limits of the city.
    Appeal from the Superior District Court, parish of Orleans. EarnMns, J.

      George 8. Lacey, City Attorney, for plaintiff and appellee. J, Livingston, for defendant and appellant.
   Howell, J.

This suit is for the taxes of 1871, payable in 1872. The defense is that the taxes exceed the authority conferred; that the defendant can not be made to pay taxes for a debt created by the city before her property was brought within the limits of the city; that the assessors and city administrators were not legally appointed; that the park tax, the school tax and the police tax, embraced in the bill, are for purposes of State institutions, and unconstitutional because the tax is not uniform throughout the State, and that two of the ordinances, fixing two items in the bill, were adopted after the month of December, in which month alone the Council had power to assess any tax for the ensuing year.

The first two grounds of defense are disposed of in the case of City v. Estate of Burthe, just decided, except as to three-quarters of one per cent., which were authorized by special statutes on the subject.

The third ground as to the official tenure of the said officers can not be urged in this proceeding. There is a law providing for the settlement of such questions.

The next ground, as to the nature of the public park, the public schools and the metropolitan police, we are unable to perceive the appropriateness or force of the objection. The constitution does not require that every tax shall be assessed throughout the State, but that taxation by the State shall be uniform throughout the State. The taxes now in question are local taxes, levied by the city in accordance with statutes of the State, for the objects specified as applicable to the territorial limits of the city.

The last ground, as to the date of the ordinances being subsequent to the month of December, was disposed of in the case of the City v. Crescent Mutual Insurance Company, 25 An. 390.

There is error, however, in allowing interest for one year before the taxes were due.

It is therefore ordered that the iudgment appealed from be amended by allowing interest thereon from thirty-first July, 1872, instead of thirty-first July, 1871, and that as thus amended it be affirmed; costs of appeal to be paid by appellee.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 3427.
    A. W. Bosworth et als. v. City of New Orleans.
    TIi© plaintiffs sue on an open account to recover salaries as Commissioners of Waterworks, and commissions on two millions of dollars for adjusting and settling tlie accounts between tlie Commercial Bank and the City of New Orleans.
    On the thirty-first of July, 1868, the resolution which authorized the appointment of the plaintiffs was adopted. Neither that resolution nor any other resolution, law, ordinance or contract fixed any salary or compensation for the services of said commissioners. None, therefore, can be claimed. There is no implied obligation on the part of the municipal corporations, and no such relation between them and the officers whom they are required by law to select, as will oblige them to make compensation to such officers, unless the right to it is expressly given by law, ordinance or contract.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      W. W. King, for plaintiffs and appellees. George S. Lacey, City Attorney, for defendant and appellants.
   Ludeling, C. J.

The plaintiffs, A. W. Bosworth, Gabriel DeFeriet, Eugene Waggaman, William McCulloch and others, sue on an open account to recover salaries as Commisssioners of Waterworks and commissions on $2,000,000 for adjusting and settling the accounts between the Commercial Bank and the city, amounting, in the aggregate, to $87,583 33, with interests and costs.

The answer contains a general denial, and further alleges that the plaintiffs assumed the duties and trust of the position with the understanding that no compensation was attached to the office or trust; that no salary or emolument is attached by law to the said position or trust assumed by plaintiffs, and that they have no right to demand compensation, and it further denies that they rendered any services for which they are entitled to compensation. There was judgment against the city for $50,248, and the city has appealed.

On the thirty-first of July, 1868, the resolution which authorized the appointment of the plaintiffs was adopted — it is as follows :

“ Resolved, That the Mayor be, and he is hereby authorized to appoint a Board of Commissioners, consisting of seven members, to manage the Waterworks until such time as the City Council shall take further action.

ts Resolved further, That the Mayor be and he is hereby authorized to appoint a Superintendent of Waterworks, under the control of the commissioners, as aforesaid ; provided, that all the appointments of the Mayor be subject to the confirmation of the Board of Aldermen : provided, that the said commissioners and superintendent shall hold office, under the Mayor’s appointment, until such time as the Common Council may propose and mature the necessary ordinance and resolutions for the final goyernment of the Waterworks.”

Neither that resolution nor any other resolution, law, ordinance or contract fixed any salary or compensation for the services of said commissioners. None, therefore, can be claimed by them. There is no implied obligation on the part of the municipal corporation, and no such relation between them and the officers, which they are required by law to elect, as will oblige them to make compensation to such officers, unless the right to it is expressly given by law, ordinance or contract.” Dillon on Municipal Corporation p. 287, § 169; 8 Vert. 284; 13 Gray 347; 19 New York, Baker v. city of Utica; 37 Mo. 564.

In Barton v. New Orleans, Judge Land, as the organ of this court, said: The Board of Health had no authority to establish the sanitary commission of which the plaintiffs were members. But if it be conceded that the establishment of the commission was recognized and ratified on the part of the Common Council of the city, still we are of opinion that the plaintiffs can not recover; first, because if they acted as agents for the city the law presumes that their services were rendered gratuitously; secondly, because if they acted as officers for the city, they then accepted a public trust, to which neither fees nor emoluments were attached by any ordinance of the city; and thirdly, because there was no agreement between them and the city, either before or after the rendition of services, for the payment of fees or other compensation.” 16 An. 317.

Thomas Shields, a member of the Board of Aldermen, at the time the resolution of July, 1868, aforesaid was passed, testified as follows : It was I offered the resolution in the Council authorizing the Mayor to appoint a certain number of well known citizens to take that position. In advocating the resolution I presented, the question was propounded to me by Mr. Markey and several other members of the Board of Aldermen, if it was intended that any compensation should be attached to the position of these gentlemen, and I replied, and felt authorized to reply, that no compensation of any character whatever was intended; that it was simply an honorary position, in which we called upon respectable citizens, well known in the community, to assist the members of the Council in a public duty.’’

Under the circumstances of this case the plaintiffs have no cause of action, which can be recognized or enforced by the courts.

It is therefore ordered and adjudged that the judgment of the lower court be annulled and reversed, and that there be judgment in favor of the defendant and against the plaintiffs, rejecting their demands, with costs in both courts.


author: Wyly, J.

text:
    No. 3405.
    Spearing & Co. v. Succession of J. W. Zacharie.
    The plea of prescription is set up against the suit of plaintiffs based upon the following instrument: “hTew Orleans, June 3, 1862. Due Messrs. Spearing & Co. six thousand dollars in current funds, subject to their draft or drafts, at not less than sixty days after sight.”
    This instrument is virtually an unconditional promise to pay a specific sum in current funds sixty days after demand. It contains substantially the elements of a promissory note. Therefore the action is barred by the prescription of five years,
    Appeal from the Second District Court, parish of Orleans. Btmigneaud, J.

      Ruddeelcee & Upton, for plaintiffs and appellants. James Lmgam, for defendant and appellee.
   Wyly, J.

This suit is based on the following instrument:

“New Orleans, June 3, 1862.

“Due Messrs. Spearing & Co. six thousand dollars in current funds, subject to their draft or drafts at not less than sixty days after sight.

“J. W. ZACHARIE,

$6000. “ pp. Robert Jump.”

The court sustained the plea of prescription of five years and dismissed the suit. The plaintiffs appeal. The question is, is the above instrument a promissory note 9 If so, the action is barred by prescription. It is an acknowledgment of an indebtedness of a specific sum, subject to (or payable), on payee’s draft or drafts, at not less than sixty days after sight. It is virtually an unconditional promise to pay a specific sum in current funds sixty days after demand.

In our opinion it contains substantially the elements of a promissory note. 22 An. 28; Parsons on Notes and Bills, chapter 2, pages 23-24.

It is therefore ordered that the judgment herein be affirmed with costs.


author: Howell, J.

text:
    No. 4797.
    City of New Orleans v. Estate of D. F. Burthe.
    The defendant is sued on a tax bill on real estate, which tax bill was originally two and five-eighths per cent, but subsequently reduced to two per cent. The defense is, that the ordinance under which this suit is instituted, is in violation of two prohibitory laws, to wit: Act. No. 7, 1870, limiting plaintiffs right tq tax to one and three-quarters per cent., and act 68 of same year fixing the limit at two per cent., wherefore, said ordinance is null and void; the two acts were approved on the same day.
    It is clear that the demand being only for two per cent, is not in violation .ofiact 68.
    But it is contended by defendantthat the tax of two per cent, claimed, beingin excess of the authority conferred by act. No 7, limiting the taxing authority to one and three-quarters, can not be collected in whole or in part, while the plaintiff contends that the act No. 68, conferred the authority to collect the two per cent, claimed.
    There is no absolute conflict between the two enactments. The first in order of the two acts is the City Charter, and confers on the City Council authority to levy an annual tax for the purposes of saidactwhichshould not exceed three-quarters of one per cent, “provided, it be sufficient to pay the interest on the consolidated debt and rail road bonds issued by the city of New Orleans.” At the same time, there are other special statutes making it the duty of the city to levy and collect taxes known as the metropolitan tax and park tax, which are not mentioned in the designation of the taxes which, in the aggregate» should not exceed one and three-quarters per cent.
    The act No. 68, need not be considered as a repealing or amending statute, but as fixing a limit in general terms to powers already conferred. If the city charter (act No. 7) were the only statute conferring authority to levy taxes, the defense set up might be good, but the “ proviso” in said act implies thata higher rate might be necessary.
    There are many other statutes conferring the authority and making it the duty of the city to levy certain special taxes, which, all taken together, exceed two per cent, as made oqt in the original bill against the defendant; but the city has remitted that excess and is now only seeking to collect the two per cent. The city can well remit the excess and demand what it has authority to impose.
    Appeal from the Superior District Court, parish of Orleans. Hato-Icins, J.

      Geo. 8. Lacey, City Attorney, and A. 0. Leiuis, Assistant City Attorney, for plaintiff and appellee. J. Livingston, for defendant and appellant.
   Howell, J.

The tax hill against the defendant for 1870, due in 1871, on real estate, was made out at'the rate of two and five-eighths per cent., but before the publication of the list of delinquent tax payers, which by law was a citation, this court decided in the case of State, ex rel. Board of School Directors v. Mayor et als., 23 An. 358, that the City was limited to a tax of two per cent, by section seven of act No. 42 of 1871, which is a re-enactment of section 8 of act 68 of 1870; whereupon tiie'City Council adopted ordinance No. 870, (which was printed •on the back of the said tax hill) remitting the excess of five-eighths, and the bill thus reduced, was then published. . The defendant appeared in- court and filed an answer, alleging that the ordinance under which "the suit is brought is in violation of two prohibitory laws, to wit: Act No. 7 of, 1870, limiting the plaintiffs right to tax to one and three-quarters per cent;, and act No. 68 of same year, fixing the limit at two per ■cent, and is therefore void.

It is clear that the demand being only for two per cent, is not a violation of the second act, and we are to determine whether or not this-demand can be enforced under the legislation of 1870.

The two acts were approved on the same day. It is contended by defendant that the tax claimed being in excess of the authority conferred by act No. 7, can not be collected in whole or part} while the plaintiff contends that the act No. 68 conferred the authority to collect the two per cent claimed.

In the cases of the School Board, 23 An. 358, above cited, and of the City v. Crescent Mutual Insurance Company, 25 An. 390, the right of the City to collect to the extent of two per cent, was recognized, and perhaps we might well consider the question settled. But as there is no absolute conflict between the two enactments it is not out of place to examine them in this connection. The first in order of the two acts is the city charter, and confers on the Council authority to levy an annual tax for the purposes of said act, which added to certain specified special taxes, required by the laws which created the debts, should not exceed one and three-quarters per cent., “ provided it be sufficient to pay the interest on the consolidated debt and rail road bonds issued by the City of New Orleans,” these being the special taxes above referred to. At the same time there were other special statutes, making it the duty of the city to levy and collect taxes known as the metropolitan tax and park tax, which were not mentioned in the designation of the taxes which in the aggregate should not exceed one and three-quarters per cent. In this state of legislation it is a reasonable construction to hold, that the general law No. 68, limiting the taxing power of city and' municipal corporations to two per cent., was intended to restrict the taxes, for all the objects for which the city was required to, assess a tax, to two per cent. The act No. 68 need not be considered as a repealing or amending statute, but as fixing a limit in general terms to powers already conferred. If the city charter (act No. 7) were the only statute conferring authority to levy taxes, the argument of defendant might be good, but that the proviso in act No. 7 implies that a higher rate might be necessary.

We And, however, that there are many other statutes conferring such-authority and making it the duty of the city to levy certain special taxes, which all taken together exceed two per cent., as made out in the original bill against defendant, but under the decision of this court, as already stated, the city remitted that excess and is now seeking only to collect the two per cent.

Y/e are of opinion that the demand is legal. The authorities cited by defendant upon the excess or abuse of authority, refer to sales made for excessive taxes. The principle is different where the tax is in process of collection. The portion that is authorized may be collected. See 43 Ill. 456. The city can well remit the excess and demand what it has authority to impose.

The defendant objects further, that he can not legally be required to pay a tax levied to meet a debt, which existed before the territory where his property is situated was annexed to the city of New Orleans.

This question was settled adversely to defendant, in the case of Layton v. City of New Orleans, 12 An. 515, and confirmed in Wallace v. Shelton, 14 An. 505. We can see no reason to disturb it.

Judgfnent affirmed.

Rehearing refused.


text:
    No. 4972.
    City of New Orleans v. Louisiana Mutual Insurance Company.
    Act No. 57 of 1874, can have no effect in this case, which is to collect taxes in 1872 for 1873, as laws can not have a retroactive effect uuefer the constitution of this State.
    If the act of 1874 was to interpret the acts of 1871 and 1872, as seems fco be its purpose, it is unconstitutional, because trenching upon the jurisdiction of the judiciary. To interpret laws is not within the powers of the general Assembly. It is not a legislative, but a judicial function.
    Appeal from the Superior District Court, parish of Orleans. HawMns, J.

      Geo. 8. Lacey, City Attorney, for plaintiff and appellee. O. T. Bemdss, Finney & Miller, for defendant and appellant.
   Ludeling, C. J.

This case is identical with the case of the City of New Orleans v. The Salamander Insurance Co., decided by this court in 1873, and reported at page 650 of the 25 Annual.

We adhere to the views there expressed. Act No. 57 of 1874 can have no effect in this case, which is to collect taxes levied in 1872 for 1873,'as laws can not have a retroactive effect under the constitution of this State.

. If the act of 1874 was to interpret the acts of 1871 and 1872, as seems to be its purpose, it is unconstitutional, because trenching upon the jurisdiction of the judiciary. To interpret laws is not within the powers of the General Assembly; it is not a legislative, but a judicial function.

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

In this case there is an error in the decree in allowing interest from July 31, 1872. It should have been allowed only from July 31, 1873, and the appellee having consented, that the error might be corrected, it is accordingly ordered that the decree heretofore rendered be modified by allowing interest only from July 31, 1873.

Rehearing refused.


text:
    No. 4962.
    Julius Socha v. Mrs. Louisa Renaldo.
    In tlie order of seizure and sale appealed from, tlie court a qua, erred in granting five per cent, for attorney’s fees, as the amount of attorney’s fees was not fixed in the act of mortgage. Tlie right of plaintiff to sue for attorney’s fees hereafter is reserved to him.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, XL J.

      Prauglm & Bucle, for plaintiff and appellee. Bolton & Walker, for defendant and appellant.
   Wyly, J.

This is an appeal from an order of seizure and sale. The ■court erred in granting the order for five per cent, attorney’s fees, as the amount of attorney’s fees was not fixed in the act of mortgage. The right of plaintiff to sue for attorney’s fees hereafter is reserved to Mm.

It is therefore ordered that the judgment herein be amended by ¡striking out that part allowing attorney’s fees, and as thus amended it is affirmed, appellee paying costs of appeal.


text:
    No. 3330.
    Butchers’ Benevolent Association v. R. King Cutler.
    A party can not be injoined from prosecuting suits for claims, whether well founded or not. On the defense the parties can be heard and tlieir rights adjusted. The intimation that a party fears he may not obtain justice before a particular judicial officer, or that he should be sued in a court of higher jurisdiction, is no ground for an injunction.
    The judge a quo dismissed the rule, and on the trial of the merits dissolved the injunction, with $100 tor counsel fees. As no evidence was admitted on the trial of the motion, in reference to any damages, and the motion should have been sustained, no damages can be allowed. This is not the class of cases in which damages may be given without special proof. The plaintiffs and their securities are liable on their injunction bond.
    Appeal from the Second Judicial District Court, parish of Jefferson. Fan-dee, J'.

      A. N. & BE. A. Ogden, for plaintiffs and appellants. W. B. Hyman and A. T. Steele, for deiendant and appellee.
   Howell, J.

The plaintiffs injoined the defendant from further prosecuting seventy-two suits, instituted by him against as many butchers and dealers in live stock, before the eighth justiee of' the peace in said parish, for professional fees, on the ground that they, the ¡plaintiff association, had, in behalf of the said several defendants, made ¡a contract with defendant in this case for a fixed sum, to defend and ¡prosecute all suits of a certain character in which the said parties anight he interested, and that the plaintiffs are the warrantors of said parties. A motion was made to dissolve the injunction on the ground, among others, that the petition disclosed no cause for an injunction.

This motion should have prevailed. A party can not be injoined from prosecuting suits for claims whether well founded or not. On the defense the parties can be heard and their rights adjusted. The. intimation that a party fears he may not obtain justice before the particular judicial officer, or that he should be sued in a court of higher jurisdiction, is no ground for an injunction.

The judge a quo dismissed the rule and on the trial of the merit» dissolved the injunction with $100 for counsel fees. As no evidence-was admitted, on the trial of the motion, in reference to any damages,, and the motion should have been sustained, no damages can be allowed. This is not the class of cases in which damages may be given without special proof. The plaintiffs and their sureties are liable on the injunction bond.

It is therefore ordered that the judgment be annulled by striking therefrom the damages awarded, and as thus amended it be affirmed.

Appellee to pay costs of appeal.


author: Ludeling, C. J. Wyly, J.,

text:
    No. 3262.
    Fargason & Clay v. W. B. Johnson & Son. John Williams & Sons, Intervenors.
    As to third parties, privilege can have no effect unless duly recorded. This is the settled jurisprudence of this State sinoe the adoption of the constitution of 1868. There is, in this instance, no evidence of the registry of any privilege in favor of the intervenors. It is not necessary therefore to discuss the effect of the possession of the railroad receipt for the ootton on which a privilege is claimed.
    Appeal from the Fourth District Court, parish of Orleans. TMard, J.

      Given Campbell and J. Ad. Rogier, for plaintiffs and appellants. A. Robert, curator ad hoe, for absent defendants. Clarice, Bayne & Renshaw, for intervenors and appellees.
   Ludeling, C. J.

The plaintiffs attached thirteen bales of cotton as the property of their debtors, while in the actual possession of the carrier, the New Orleans, Jackson and Great Northern Railroad' Company. The third opponents intervened and claimed a privilege on ihe cotton for advances made and for plantation supplies, and alleged that they had the railroad receipt ior said cotton, which is claimed to be equivalent to a bill of lading.

As to third parties privileges can have no effect unless duly recorded. This is the settled jurisprudence of this State since the adoption of the constitution of 1868. There is no evidence oí registry of any privilege in favor of the intervenors. D. J. Edwards v. Wilkinson, 25 An. It is not necessary therefore to discuss the effect of the possession of the railroad receipt for the cotton.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment rejecting the intervenors’ demands. It is further ordered that the property attached he sold to satisfy the judgment rendered, by the district judge, in favor of the plaintiffs and against the defendants, W. B. Johnson & Son, and the costs in the attachment proceedings; and that the costs of the intervention, in the district court, and of this appeal, be paid by the interven ors.

Wyly, J.,

dissenting. The evidence in this case satisfies me that by special agreement W. B. Johnson & Son pledged the cotton in question to secure John Williams & Sons for advances made to them. John Williams & Sons were in possession of the bills of lading, or the railroad receipts, about two weeks before the cotton was attached by the plaintiffs. Holding the bills of lading, they held the legal title of the property, and the possession of the railroad was for them, and in effect their possession. The moment the bills of lading fell into the hands of John Williams & Sons they acquired in law the possession of the property; and the antecedent agreement to pledge ripened into a complete contract of pledge. Holding the cotton in pledge when the attachment was levied, the right of John Williams & Sons was not lost for want of registry, because under the laws of this State no registry is necessary to preserve or give effect to the contract of pledge.

I think the court below did not err in giving the cotton to the intervenors, the pledgees; and therefore I dissent from the opinion of the majority of the court in this case.

Rehearing refused.


text:
    No. 3518.
    C. C. Thayer v. Rufus Waples.
    This is a suit in damages on the allegation of having been maliciously ejected from leased premises. "When a tenant denies the title of his landlord, the relation between them is severed, and the right of entry by the landlord is complete, but the entry must be effected under the law.
    In this case it is not necessary to decide whether the manner of getting possession was proper or not, as the facts show that plaintiff was not damaged thereby. ' He failed to pay his rent, and under our law and jurisprudence the defendant was justified in seizing for the rent and attaching the property subject to the lease. In doing this in a legal manner, the defendant did hot render himself liable in damages.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Sambola <& Ruaros and Charles A. Conrad, for plaintiff and appellee. R. C. Miller, for defendant and appellant.
   Howell, J.

The plaintiff leased from the defendant the store No. 47 Camp street for an auction mart, from first February to first September, 1870, at $100 per month, payable in advance. Failing to pay the rent for the month of April, the defendant instituted suit on the fourteenth of said month before a justice of the peace and caused the contents of the store to be provisionally seized, a keeper being put in charge of the premises. On the sixteenth, plaintiff (Thayer) answered, denying indebtedness to the defendant (Waples), and averring that if ■any rent be due, “the same is due to Mr. Conrad, the owner of the property,” and not to Waples, and reserved his right to sue for damages for a malicious suit on the part of Waples. On the fourth day after the seizure the constable closed the store, fthe goods seized, belonging to third parties, were delivered to the owners by consent of both parties to the suit. On twentieth April, judgment with privilege was rendered in favor of Waples, and signed on the twenty-third. On twelfth May a devolutive appeal was taken, and on twentieth June the judgment was affirmed. After the judgment was rendered by the justice of the peace, the keys were delivered by the constable to Waples, who on twenty-seventh April gave a written lease of the premises to the Hibernia Bank, which took possession about the first of May. On twenty-first of said month (May, 1870) this suit was in•siituted for damages, in the sum of $10,000, upon the allegation that the defendant maliciously instituted suit in the justice’s court in order to destroy his business, eject him from the premises and rent them more advantageously to the Hibernia Bank, averring that he (Thayer) failed to pay the rent for April because he was disappointed in some of his arrangements, and suit having been instituted in the United States Circuit Court against Waples for the said property, to which he (Thayer) was made a party, he had doubts as to the propriety of paying Waples.

Upon tliis last point it may be remarked that the Courad suit was •filed in February, and judgment was asked against Thayer, the occupant, in case he made no disclaimer. This he did, and paid Waples the rent for March, after which he filed his answer'(in April) denying the title of his lessor. The question is, is he entitled to damages under the circumstances? When seizure was made by the constable, he could have protected himself by payment into court or giving bond under article 1127 C. P., and continued his business. But it is claimed by the. defendant (Waples) that when the plaintiff denied the title of -the lessor, the relation of landlord and tenant was severed, and the tenant, if he continued in possession, would be a trespasser, ánd that ■as the premises were in the control of the officers of the law, he, the landlord, did not violate the law or the rights of the recanting tenant "by assuming possession of his property.

The authorities cited hold the doctrine that when a tenant denies -the title of his landlord, the relation between them is severed and the right of entry by the landlord is complete, but the entry must be effected under the law. In this case it is unnecessary to decide whether the manner of getting possession was proper or not, as the facts show that plaintiff was not damaged thereby. He failed to pay his rent, and under our law and jurisprudence the defendant was justified in suing for the rent and attaching the property subject to the lease. In doing this in a legal manner, the defendant did not render himself liable in damages. It does not appear that the subsequent failure of the plaintiff to reopen the place for his business caused him any damage. He does not show that he made the necessary effort to get his premises released from the law and regain the occupancy thereof.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both courts.


author: Ltjdeling, C. J.

text:
    No. 3481.
    James J. O’Hara v. John Krantz.
    The plaintiff’s contract with the city of 2>Tew Orleans did not embrace the work for which payment is sought in this suit, and the defendant was making the improvement himself with the assent of the city authorities, when he was interfered with by the plaintiff officiously completing the work defendant had begun, in despite of his opposition.
    There may be hardship involved in the result which enriches the proprietor at the plaintiffs expense, but, however it mayor should recommend itself to the conscience of the proprietor, it is a hardship of the plaintiffs own seeking, which can not be judicially remedied.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.
    Jury trial. Mornor & Benedict, for plaintiff and appellee. J. A. & V. J, Hosier, for defendant and appellant.
   Ltjdeling, C. J.

This is an action for $637 49, the alleged price claimed for the construction of a brick banquette in front of defendant’s property. The plaintiff’s contract with the city did not embrace this work, and the defendant was making the improvement himself, with the assent of the city authorities, when he was interfered with by the plaintiff officiously completing the work defendant had begun, in-despite of his opposition.

There may be hardship involved in the result which enriches the proprietor at the plaintiff’s expense, but it is a hardship, which, however it may or should recommend itself to the conscience of the proprietor, can not judicially countervail the higher consideration of public policy. The hardship is of the plaintiff’s own making. 10 An. 11.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the lower court be annulled, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demands, with costs.


text:
    No. 3418.
    W. S. Pike, Assignee v. Merchants’ Mutual Insurance Company.
    On the twenty-first of April, 1868, tlie plaintiff wrote to Pemberton, president of the Merchants’ Mutual Insurance Company, a letter to effect a policy on the steamer Texas. In that letter he said: “ By agreement with Darden, he (Darden) was to insure the steamer and to transfer policy to me to the extent of $5000. Darden effected insurance, failed to pay for the policy, say, $957 75, which I paid myself. Darden has since fraudulently sold his interest in the steamer as acquired from me, and she is nowin the hands of the United States Marshal for debts contracted since sale and will be sold to morrow. AsX have paid ior the policy and have now identically the same interest in the steamer that X had when the policy was taken, I desire to have the policy continued to the time of its expiration for the interest transferred to me, say, $5000.” The policy referred to was to run to the twenty-fifth of November, 1868. On the twenty-tbird of September of the 6ame year the vessel was totally lost by a peril insured against.
    It appears that on the twenty-third of April, Pemberton had acknowledged receipt of plaintiff’s letter of the twenty-first of the same month and said in a postcript: u The risk on steamer Texas, to continue in force under the clauses and conditions of policy Ho. 2500. But in the meantime, on the twenty-second of April, during the interval elapsing between the date of plaintiff’s letter and that of Pemberton’s answer, the vessel, in accordance with admiralty proceedings, had been sold, and the proceeds were distributed in a concurso of claimants. Under such circumstances, the answer of Pemberton had not the effect of continuing the insurable interest of the plaintiff, whose privilege and interest had been divested by the marshal’s sale.
    Such a defense is not precluded by the doctrine of estoppel. The letter of Pemberton did not change plaintiff’s rights, or cause him to act so as to alter his previous position. It did not create a right or confer one which did not previously exist. It simply proposed to continue such rights as the plaintiff had under the policy. But. after the marshal’s sale, the plaintiff could have no right under that policy. His interest was transferred from the vessel to the proceeds. Ho new contract of insurance was made; no new or additional premium paid. The parties were simply mistaken as to the continued existence of plaintiff’s insurable interest.
    Appeal from the Fifth District Court, parish of Orleans. Beam/moni, J.

      Bays & New, ior plaintiff and appellant. A. Voorhies, for defendant and appellee.
   Howell, J.

The first important question in this case is, whether or not the plaintiff has an insurable interest in the property lost. He asserts it to be shown by the following correspondence:

“ New Orleans, April 21, 1868.

“John Pemberton, Esq., President:

“ Dear Sir — As assignee of the creditors of Hawes & Bowen, I sold their interest in the steamer Texas to J. C. Darden, a member of the firm of C. Turner & Co., for thesumof $10,000, payable asfollows: cash $5000, and Darden’s three drafts on and accepted by Messrs. J. C. Turner & Co., eacli for $1666 66, payable in one, two and three months from date, with vendor’s privilege on the steamer until final payment. The acceptances of J. C. Turner & Co., as they matured, were protested and were unpaid. By agreement with Darden, he was to insure the steamer and was to transfer policy to me, to the extent of $5000. Darden efleeted insurance, failed to pay for the policy, say $957 75, which I paid myself.

"Darden lias since fraudulently sold bis interest in the steamer as acquired from me and she is now in the hands of the United States Marshal for debts contracted since sale and will be sold to-morrow. As I have paid for the policy and have now identically the same interest in the steamer that I had when the policy was taken, I desire to have the policy continued to the term of its expiration for the interest transferred to me, say $5000.

Eespeetfully your obedient servant,

“ WM. S. PIKE, Assignee.”

To which Pemberton replied :

“ Office of the Merchants’ Mutual Ins. Co.

" No. 104 Canal street.

" New Orleans, April 23, 1868.

“ Wm. S. Pike, Esq., New Orleans :

" I a.min receipt of your letter twenty-first instaDt, referring to insurance on steamer Texas. The contents of your letter are duly noted.

" Eespeetfully your obedient servant,

“ JOHN PEMBEETON, President.”

" P. S.' — The risk on steamer Texas to continue in force under the clauses and conditions of policy.No. 2500.

" JOHN PEMBEETON, President.”

The premium was paid before the institution of the proceedings in admiralty and none has since been paid or tendered. The vessel was sold in said proceedings on the twenty-second of April, and the proceeds distributed in a concurso of claimants. The vessel was totally lost on twenty-third September, 1868, by a peril insured against. The policy referred to in the correspondence, was to run to the twenty-fifth November, 1868.

Did the letter of Pemberton have the effect of continuing the insurable interest of the plaintiff? We think not.

The marshal’s sale divested the privilege and interest of plaintiff. R. C. C. 3239, 3240. But he contends that the doctrine of estoppel in pais precludes the defendant from making such a defense. This is an error. " The rule of law is clear, that when one, by his own words or conduct, willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averriug against the latter a different state of things as existing at the time.” 6 A. and E. 469.

“ The estoppel is allowed to prevent fraud and injustice, and exists whenever a party can not in good conscience gainsay his own acts or assertions.” 3 Hill, 225.

The letter of Pemberton had no such effect. It did not change plaintiff’s rights or cause him to act so as to alter his previous position. It did not create a right or confer one which did not before exist. It ■ simply proposed to continue such rights as the plaintiff had under the policy. ,But after the sale by the marshal, plaintiff could have no rights under that policy, as the sale divested all interest which he had in or to the vessel- and transferred it to the proceeds. No new contract of insurance was made between plaintiff and defendants — no new or additional premium paid. The parties were simply mistaken as to the continued existence of plaintiff’s insurable interest after the marshal’s sale. The letter of defendants having been written and received after the said sale, it can not be justly considered that plaintiff’s acts or rights in reference to the protection of his interests, were affected or influenced by said letter.

Judgment affirmed.


author: Wyly, J. Ludeling, C. J.

text:
    No. 2973.
    Mrs. J. Lavergne, Tutrix et al., v. Mrs. Numa Lacoste.
    This suit is for the payment of a wall designated as A, for the value of a wall designated as B, and damages for closing windows or apertures in wall A. 'When wall A was built with windows by Blasco, the owner of the contiguous lot refused to pay for the wall. The owner of that lot, however, oould always have made the wall a wall in common by paying for the half of its costs.
    lot, tlie windows continuing open in tlie wall and the deed remaining silent concerning them. This sale did not relieve the owner of the Burgundy lot from paying for the wall in common, whenever he might desire to use it. Subsequently Blasco sold the lot to the plaintiff, with the windows still in existence, and plaintiff purchased from Burgunder said adjoining lot upon which the wall rested for half of its thickness. Some years after, the plaintiff sold to defendant the Burgunder
    The right which the original owner had to make the wall a wall in common by paying for it, passed with the lot to the vendee, but nothing more. The vendor of the defendant did not sell this wall, but only the lot which he had bought from Burgunder.
    There can be no question of servitude in this case. The wall belonged to plaintiff in full ownership, until the owner of the contiguous lot should pay for the half of it, and this right would exist so long as that wall stood. "When paid for, the owner of the contiguous lot became the joint owner of the common wall and could use it as owner. He could therefore close the windows in order to use the wall as a wall in common.
    It is evidently in derogation of common right to permit a man to appropriate the land of another without paying for it. But the law provides a quid pro quo to the proprietor whose rights of property are thus invaded, by giving him the right always to make it a common wall by refunding one-half of the cost thereof.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      JS. Dermudeg, for plaintiff .and appellant. Johnson & Denis, for defendant and appellee.
   Wyly, J.

This case is correctly stated by the learned judge a quo, and is as follows:

In 1841 one Blasco, being the owner of the lot now possessed by the plaintiffs, built a certain wall, half on his own lot and half on that of his neighbor. This was built at the exclusive cost oí Blasco, his neighbor Leroy refusing to contribute towards its erection. In this wall Blasco left three openings for purposes of ventilation. The plaintiffs derived title to the lot now owned by them from Blasco in 1859. In the same year, and subsequent to the purchase from Blasco, the plaintiffs acquired title to the contiguous lot owned by Leroy at the time the wall was built; and in 1866 they sold the Leroy lot to the defendant, Mrs. Emma Lacoste.

To understand plaintiffs’ claim, it is proper to say that the wall which constitutes the boundary between themselves and the defendant is to a certain extent, to wit: forty-eight feet in length, one-half on their ground and the other half on the lot of the defendant; the remainder of the wall, measuring seventy-eight feet and six inches, rests exclusively on the lot of the plaintiffs. At one point this last mentioned part of /the wall does not reach the dividing line.' It is described thus in the petition : A “triangular strip of ground, measuring at its base one inch and four lines, and narrowing as its altitude extends to its apex on the rear line of said lot, a distance of seventy-eight feet six inches.” This space outside of the wall is almost imperceptible, and it grows less until it reaches the line at the other end, seventy-eight feet six inches distant.

Por convenience we will designate that part of the wall resting equally on the contiguous lots, a distance of forty-eight feet, as wall A, and that part resting entirely on plaintiffs’ lot, seventy-eight feet, as wall B.

The defendant sought to make these walls walls in common, and the plaintiffs brought this suit to compel him to pay half the value thereof, and to restrain him irom closing the three openings in the wall A, as aforesaid.

The defendant tendered the value of wall B and of the small fraction of ground extending outside of said wall, as aforesaid. And concerning the sufficiency of this sum there is no controversy. We think the defendant liad the right to make this wall a wall in common, and that he should pay the plaintiffs the amount he tendered, which is, at least, the value thereof.

As to wall A, we will remark that Leroy, the owner, who refused to contribute to the building thereof, had the right, under article 672 C. C., to make it a wall in common by paying half of what was laid out for its construction; and he had the right to close the three openiugs therein. The moment he paid the half of the cost of the wall, his right to it became as complete as if he had helped to construct it; and, of course, if he had helped to construct it, the plaintiffs would have had no right to the openings. Plaintiffs and their vendor had the right to the openings as long as the wall belonged entirely to them; it was a right resulting from the ownership of the wall. But this ownership, to the extent of one-half of the wall, was liable to be divested by the owner oi the contiguous lot making it a wall in commou, pursuant to article 672 C. C. The moment the provisions of this article were complied with, the builder ot the wall or his vendees ceased to be the sole owners, and with it they ceased to have a right to the openings therein.

The defendant has all the rights of the original owner, who refused to contribute to the building of the wall. Besides, she is not liable to the plaintiffs for the cost of this wall. Plaintiffs, the owners of both lots, sold the defendant the one she occupies, and with the lot passed all the improvements thereon, including half of the wall in question, because half thereof rested on the lot, and it was a part of the immovable. If plaintiffs had desired to preserve their right to the openings, they should have made the reservation thereof when they made the sale to the defendant. If they wished to prevent the defendant from using half of the wall, which she bought with the lot, they should have made a limitation to that effect, in respect to these openings, in the act oi sale. In the absence of an express limitation, we are bound to recognize the right of the owner to the use and employment of his property. ^

It is therefore ordered that the judgment appealed from be reduced to $450, the value of wall B, which was tendered to the plaintiffs by the defendant, and as thus amended it is ordered that said judgment be affirmed, plaintiffs paying costs of both courts.

On Rehearing.

Ludeling, C. J.

In 1841 Blasco.bought a lot of ground on Chartres street, upon the lower side line of which he erected a building, the wall whereof was made to rest half on his own lot and half on the adjoining neighbor’s, making in that wall three openings or windows, one in the second story, another in the third story, and a smaller one in the attics.

In 1859 this lot, with the buildings and improvements thereon, was acquired by the plaintiffs, the windows being still in existence.

In 1859 the plaintiff bought Irom Burgunder the lot adjoining Blaseo’s property, upon which the wall rested for half of its thickness and upon which these windows opened..

Subsequently, in 1866, the plaintiffs, then and now minors, sold to the defendant the Burgunder lot, the windows continuing to remain open in the wall and the deed remaining silent concerning them.

Immediately after the purchase the defendant caused buildings to be erected on the whole side of the Blasco lot, resting them on the main wall A, and also on another wall B, which is built exclusively on the Blasco lot. Her construction resting upon wall A completely closed the window of the second story of the said division wall A.

This suit is for the payment of wall A, for the value of wall B, and for damages for closing the windows in wall A.

The judgment of the district court decreed the defendant to pay the cost of wall A and the value of wall B, and refused damages for closing the windows.

In our former- opinion and decree wfe refused to allow the plaintiff anything for the half of the cost of wall A. This was an error. When wall A was built, the owner of the contiguous lot refused to pay for the wall. The owner of that lot, however, could always make the wall a wall in common by paying the half of its costs. He sold the lot to the plaintiff, who subsequently sold it to the defendant. Did said sales relieve the owner of the Burgunder lot from paying for the wall in common when he desired to use it? We think not. The right which the original owner had to make the wall a wall in common by paying for it, passed with the lot to the vendee, but nothing more. The vendor of the defendant did not sell his wall, but only the lot which he had bought from Burgunder. V

The plaintiff claims that the windows in wall A had existed at the time of the sale of the property to defendant for more than ten years, and were apparent signs of a continuous servitude; and as the title from them to defendant is silent as to this servitude, it must, under article 765 C. C., continue to exist. This is an error. There can be no question of servitude in the case. The wall belonged to the plaintiff in full ownership, until the owner of the contiguous lot should pay for the half of it, and this right would exist so long as that wall stood. When he paid his share of the cost of construction, the owner of the contiguous lot became the joint owner of the wall in common, and could use it as owner. C. C. 675,676; 11 An. 465.

“Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work be not an injury to the rights of the other, to be ascertained by persons skilled in building.” C. C. 685. He could, therefore, close the windows in order to use the walls as a wall in common. 7 An. 685; Eish v. Haber.

The rule in regard to walls in common is one of public policy, and was intended to encourage the improvement of urban property. Larche v. Jackson, 9 M. 726. It is evidently in derogation of common right, inasmuch as it permits one man to appropriate the land'of another without paying for it. But the law provides a qiiidpro quo to the proprietor, whose rights of property are thus invaded, by giving him the right always (conserve tovjozors le droit) to make it a common wall by refunding one-half of the cost thereof.

It is therefore ordered and adjudged that our former decree be set aside, and that the judgment of the lower court be affirmed, appellant paying costs of appeal.

Mr. Justice Wyly adheres to the original decree.


author: Morgan, J.

text:
    No. 3302.
    George Wood v. Charles Harispe.
    The exception to the petition on various grounds having been pleaded after default bad been entered, was correctly dismissed by tbe judge a quo.

    If the defendant Harispe is responsible to the plaintiff, it is because bis agent took possession of plaintiff’s property and shipped part of it to Cuba on Harispe’s account, and part of it to Harispe at Hew Orleans. If this possession was a wrongful one, as it is alleged tobe, tbe property came into his hands by reason of an offense which he, throughhis agent, had committed. His obligation towards tbe plaintiff would rest upon a claim for damages caused by tortious conduct and is the result oí an offense which is prescribed by one year. The prescription invoked in this court by the defendant must therefore, prevail.
    APPEAL from the Fifth District Court, parish of Orleans. Deammont, J.

      Randolph, Singleton & Browne, T. Gilmore & Son, for plaintiff and appellee. O. D. Schmidt, Denegre, & Wm. Sunt, for defendant and appellant.
   Morgan, J.

Plaintiff alleges that in the month of July or August, 1862, he owned one hundred and forty bales of cotton; that this cotton was at a placo called Little Bayou Tensas, on Grand river in the parish of St. Mary, and that it was in the keeping of one N. J. Pharr. He avers that the defendant demanded and received this cotton from Pharr, and that he disposed of the same. He alleges that Harispe owes him an account of this cotton which, although demanded of him, he has refused and neglected to render. He says that the cotton in question averaged four hundred pounds per bale, and that it was worth eighty cents per pound at the time it was received by Harispe. He prays that he he ordered to account, and that he he compelled to pay him $44,800, the value thereof.

The suit which was instituted on the nineteenth of January, 1867, commenced by attachment. The property attached was subsequently released on bond. Defendant excepted to the petition on various grounds. But as the exception was filed after default had been entered, the district judge correctly dismissed it.

The defendant then filed a general denial. The judge below, after bearing the evidence, gave judgment against him for $5,600. Whereupon, the plaintiff moved for a new trial. The rule was fixed for the thirtieth January, 1871. On that day the court “ ex officio, in order to correct an error in stating the amount of the judgment,” ordered that a change be made so as to decree in favor of the plaintiff the sum of $30,600, with interest from judicial demand, with privilege upon the property attached.

From this judgment the defendant has'appealed.

If Harispe is responsible to the plaintiff it is because his agent took possession of his property, and shipped part of it to Cuba on Harispe’s account, and part of it to Harispe at New Orleans. If this possession was a wrongful one, as it is alleged to be, the property came into his bands by reason of an offense which he, through his agent, had committed. His obligation towards the plaintiff would rest upon a claim for damages caused by tortious conduct, and is the result ot an offense which is prescribed by one year.

The cotton is alleged to have been taken in July or August, 1862. This suit was instituted on the nineteenth of Tanuary, 1867. The prescription invoked in this court by the defendant must prevail.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendant with costs in both courts.

Rehearing refused.


author: Lude ling, C, J.-

text:
    No. 3463.
    Margaret A. Silliman v. Short & Martin and J. A. Hall.
    Short & Martin, a commercial firm, executed their notes for the rent of a store. Shortly after, Short withdrew from the partnership, and John A. Hall became a member of the former firm of Short & Martin. Tbo new firm carried on'tlioir business in the same store leased by Short & Martin. It is cloar that Hall is not bound for the notes of Short & Martin, jmless he assumed to pay their debt. This assumpsit can only be established by writfcon^Ovidence, and that evidence has not been furnished.
    The sequestration of the personal property of Hall after it had been removed from tho leased premises, for thepayment of the debts of Short & Martin, was unauthorized. "Whatherthe property seized had been removed from the leased premises, within fifteen days or not, is unimportant, inasmuch as tho property did not belong to Short & Martin, the lessees.
    Appeal from the Fourth District Court, parish of Orleans. Them’d, J.

      Hace, Foster & Merrielc, for plaintiff and appellee. Bentinelc Fgan, A. Voorldes, for John A. Hall, defendant and appellant.
   Lude ling, C, J.-

Short & Martin, a commercial firm, executed their notes for the rent of a store. These notes were acquired in due course of business by the plaintiff. Shortly after the lease of the premises, Short withdrew from the partnership, and John A. Hall became a member of the firm of Hall & Martin, who carried on their business in the same store leased by Short & Martin. This suit is against Short & Martin, and John A. Hall on said rent notes. There was judgment against all the defendants and J. A. Hall has appealed. It is clear that Hall is not bound for the notes of Short & Martin unless he assumed to pay their debt. This assumption can only be established by written evidence. Act of 1858, sec. 3, p. 148.

There is no written evidence of the assumption of the debt by Hall. The sequestration of the personal property of Hall, after it had been removed from the leased premises, for the payment of the debt of Short & Martin, was unauthorized. Whether the property seized had been removed from the leased premises within fifteen days or not, is unimportant, inasmuch as the property did not belong to Short & Martin, the lessees.

The right of pledge, which is given to the lessor, and which may be enforced by him by seizing the objects subject to it within fifteen days after they are taken away, can only be exercised, when they “continúe to be the property of the lessee.” C. C. 2709.

It is therefore ordered and adjudged, that the judgment of the lower court against John A. Hall, be reversed and that there be judgment in his favor and against the plaintiff, rejecting her demand against him with costs in both courts.


author: Lude ling-, C. J.

text:
    No. 5098.
    State of Louisiana v. Theophile Monie and Joseph Fontaine.
    The ruling of the judge admitting the voluntary confessions of Fontaine made to the witnesses, who -happened to be a constable and a justice of the peace, as against himself, was correct. But the declarations of FoDtaine were inadmissible against Monie, and the judge should have instructed the jury to limit the application of said admissions to Fontaine alone.
    Appeal from the Fourth Judicial District Court, parish of St. John the Baptist. Flagg, J.
    Criminal case. Morris Marks, H. 0. Dibble, Assistant Attorney General, for the State, appellee. James D. Augustin, for defendants and appellants.
   Lude ling-, C. J.

The defendants, having been convicted of striking and cutting with a dangerous weapon, have appealed.

Two bills of exceptions to the rulings of the judge were taken. They embody substantially the same objections, to wit: That the confessions of Fontaine could not be proved by an officer, to whom it was made voluntarily; and that his confession is not evidence against Monie.

The ruling of the judge, admitting the admissions of Fontaine, made to the witnesses, who happened to be a constable and a justice of the peace, as against himself, was correct. But the declarations of Fontaine were inadmissible against Monie; and the judge should have instructed the jury to limit the application of said admissions to Fontaine alone.

It is therefore ordej ed and adjudged, that the judgment ot the lower court against the defendant Fontaine be affirmed with costs, and that the judgment and verdict against the defendant Monie be set aside and annulled, and that the case as to said Monie be remanded to be proceeded in according to law.


author: Lude ling, C. J.

text:
    No. 4900.
    Thomas Fawcett v. W. D. Peterson et als.
    In this suit on an open account, the plea of prescription is set up by the defense. On its face the account is prescribed, but it is alleged that before prescription accrued it was acknowledged. The evidence of this interruption is the testimony of the plaintiff, in which he refers to a letter of the agent of one of the defendants, J. M. Peterson, now deceased. This evidence was inadmissible to prove an interruption of prescription against the succession of J. M. Peterson. Resides, as to the letter above referred to, it is rather a negation than an acknowledgment of indebtedness.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      H. J. Grover, for plaintiff and appellee. BmtmoJc Egan, for-defendants and appellants.
   Lude ling, C. J.

This is a suit on an open account. It will be necessary only to examine the plea of prescription. On its face the account is prescribed, but it is alleged that before prescription accrued it was acknowledged. The evidence of this interruption is the testimony of the plaintiff, in which he refers to the letter of defendant,, which we will notice hereafter. This evidence was inadmissible to prove an interruption of prescription against the succession of Peterson. Acts of 1858, p. 158, art. 2278 C. C.

The language of the letter written by the agent of J. M. Peterson,, which is relied upon to prove a payment and therefore an acknowledgment of the debt, is as follows: I succeeded in collecting ten per cent, of amount due you on your old claim of Jacob Barker, which you will find inclosed.” It would be very difficult to distort this language into-an acknowledgment of a debt due by Peterson, or to prove a payment by him of a debt acknowledged to be due by him.

It seems that J. M. Peterson was the agent of Fawcett at New Orleans, and also a member of the firm of W. D & J. M. Peterson at Baton Rouge, which owed the account sued upon, and that he claimed to have acted as the. agent of Fawcett in transmitting to him, by a bill of exchange, funds remitted by the firm in payment of said account,. and that the loss, if any, in consequence of the dishonor ot the bill, must fall upon his principal. In this letter he iniormed Fawcett that lie had collected for Fawcett ten per cent. — a dividend declared — on Fawcett’s claim on account of said dishonored bill, and which he transmitted to Fawcett. Certainly this letter negatives the idea that Peterson considered himself bound to Fawcett, and can not be construed into an acknowledgment of the debt, or of a payment by him of a debt due by himself.

It is therefore ordered and adjudged that the judgment of the lower court bo annulled, and that there be judgment in favor of the defendant and against the plaintiff, rejecting his demands with costs.


text:
    No. 4388.
    Cooley & Phillips v. P. Esteban et als.
    The defense in this suit based upon a promissory note is : That the defendants are not personally bound, as they acted as a committee in behalf of the Butchers’ Benevolent Association.
    The note roads thus ’. “ The Butchers’ Benevolent Association v. The Crescent City Live Stock and Slaughterhouse Company, 17b. —, Sixth District Court, parish of Orleans. "We, the undersigned, hereby bind ourselves to pay vn solido, to Cooley & Phillips, attorneys at law, the sum of one thousand dollars, as soon as the above styled suit shall have been finally decided, being for professional services to be rendered by said Cooley & Phillips to the plaintiffs in the above suit.” Signed, Paul Esteban, J*. T. Aycock, Dugue Verges, special committee.
    This court thinks the signers of tho obligation sued upon, bound themselves to pay the sum promised. There is nothing ambiguous in the written obligation; but if, by any perversion of language, the phrase “ we, tho undersigned, hereby obligate ourselves to pay,” could be made to moan the Butchers’ Benevolent Association obligated themselves to pay, this court would then be at a loss to know the sense of putting the words in solido in the obligation.
    Besides.it appears from the evidence that the plaintiffs required that their fees should be secured. Of course, the Association’s obligation was not secured unless the defendants were personally bound.
    The plea that the suit is premature should have been filed in limine litis. It was too late after answer filed.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Cooley & Phillips, personally, appellants. H. Fugué, Fellows <& Mills, for defendants and appellees.
   Ludeling, C. J.

This suit is based upon the following promissory note:

“ The Butchers’ Benevolent Association v. The Crescent City Live Stock and Slaughterhouse Company, No. —, Sixth District Court, parish of Orleans. We, the undersigned, hereby bind ourselves to pay, in solido, to Cooley & Phillips, attorneys at law, the sum of one thousand dollars as soon as the above styled suit shall have been finally d( cided; being for professional services to be rendered by said Cooley & Phillips to the plaintiffs in the above suit.

“ PAUL ESTEBAN,

“ J. T. AYCOCK,

“ DUGUE VERGES,

“ Special Committee.”

The defense is that the defendants are not personally bound, as they acted as a committee in behalf of the Butchers’ Benevolent Association. They further allege that $500 have been paid on said contract. They called the said Association in warranty to defend this suit and for judgment against the Association, if any judgment should be rendered against them. There was judgment rejecting the plaintiffs’ demand, and they have appealed.

We think the signers of the obligation sued, upon bound themselves to pay the sum promised. There is nothing ambiguous in the written obligation ; but if, by any perversion of language, the phrase, “we, the undersigned, hereby obligate ourselves to pay,” could be made to mean the Butchers’ Benevolent Association obligated themselves to pay, we would then be at a loss to know the sense of putting the words, in solido, in the obligation. Besides, it appears from the evidence that the plaintiffs required that their fee should be secured. Of course, the Association’s obligation was not secured unless the defendants were personally bound.

The language of the receipt given for the five hundred dollars paid, as well as the fact that it was paid about the time the plaintiffs were employed, and long before the maturity of the obligation, satisfy us that it was not intended to be a payment on the obligation sued upon, but a retainer, in addition to said obligation. The receipt is in the following words and figures : “ Received, New Orleans, May 28, 1869, of Mr. Aycock, through the hands of J. B. Cotton, Esq., the sum of five hundred dollars, being the cash payment for our services as attorneys for plaintiffs,” etc.

The plea that the suit is premature should have been filed in limine Ktis. It was too late after answer filed, and it is certainly due now.

It is therefore ordered and adjudged that the judgment oí the lower court be reversed, and that there be judgment in favor of the plaintiffs against Paul Esteban, J., T. Aycock, the succession of Dugué Verges, in solido, for one thousand dollars, with five per cent, per annum interest from judicial demand and costs.

It is further ordered and adjudged that the said Paul Esteban, J. T. Aycock, and the legal representatives of the succession of Dugué Verges, have and recover judgment in their favor against the Butchers’ Beuevolent Association for the amount above stated, with interest and costs.