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

text:
    No. 3005.
    J. Q. Packard v. Ober, Atwater & Co. J. Q. Packard v. Ober, Atwater & Co., Garrard & Craig, and John P. Moore. (Consolidated.)
    Compromises have no immunity from decrees of nullity, -where errors of fact hearing upon the principal cause of the compromise and coupled with fraud, are shown to exist, and in such cases, said compromises must be declared null and void. ,
    Appeal from the Sixth District Court, parish of Orleans. Gooley, J.

      A. IV. <& W. F. Ogden, for plaintiff and appellee. JR. & E. Ma/rr, Wm. H. Emit, Semmes & Mott, for defendants and appellants.
   Wyly, J.

In February, 1868, Ober, Atwater & Co., sued the firm of Packard & Co.,' composed of John Q. Packard and James B. Packard, in the Fifth District court, parish of Orleans, for $17,896 66, for balance of account due them as factors. In answer to this suit the plaintiff John Q. Packard, pleaded a general denial; alleged that he and J. B. Packard were ordinary partners engaged in cultivating plantations in the.parishes oi Concordia and Tensas; denied that they were in any sense commercial partners, and alleged “That on the eighteenth of May, 1867, this defendant and the said J. B. Packard as ordinary co-partners, were jointly indebted to the plaintiffs for advances of money and supplies to carry on the business of planting, amounting to the sum of $18,303 49, and no more; that, on or about the twenty-fifth of May, 1867, the said indebtedness was fully paid and extinguished in the following manner, to wit: The plaintiffs purchased of defendants the “Live Oak” plantation, situated in the parish of Concordia, and on the last named day, defendants duly conveyed said plantation to the plaintiffs by public act passed before the recorder of Concordia parish and duly accepted by plaintiffs for and in consideration of the sum of $10,000, which sum was to be applied in part payment of said balance $18,303 49, and the balance, to wit: the sum of $8303 49, was settled and paid by the individual note of said J. B. Packard, made and delivered to the said Ober, Atwater & Co., on or about the twenty-fifth of May, 1867, which note has since been fully paid to the plaintiffs by the said J. B. Packard.” * * * He further alleged that since said da'e the said Ober, Atwater & Co., have made other advances of supplies and money for planting purposes, the precise amount of which he is unable to state, but for a less amount than is claimed by plaintiffs, in their petition, and that all the advances so made have been fully paid by large sums received by them from California for him (the exact amount he is not able to state because they have not rendered him an account) and by the receipt of eighty-six bales of cotton from him, the product of the crop of 1367, the proceeds of the sale thereof still re-retaining in the hands oí said Ober, Atwater & Co., and unaccounted for, but this defendant is informed and believes they amount to the sum of $6500, and also by the receipt oí the proceeds of 3000 sacks of seed from the plantation in the parish of Tensas, and that when the defendants are duly and properly credited with the money received from Calfornia and the proceeds of said consignments, he alleges that the demands of the plaintiffs against him will be found to be fully canceled and paid.

These are the averments of the answer which was filed on the tenth of March, 1868. On the twenty-fourth of September, 1868, Ober, At-water & Co., filed a supplemental petition, showing that since filing the origiual petition, the indebtedness of the defendants, Packard & Co., to them had been reduced to $16,570 45, and they prayed for and obtained a writ of attachment on the ground that, John Q. Packard was about leaving the State permanently. Under this writ the sheriff seized all the products and movables of John Q. Packard ou the Yiamede plantation in the parish of Tensas.

On the twenty-seventh of November, 1868, John Q. Packard com-' promised this suit with Ober, Atwater & Co., fixing the amount of his indebtedness to them at $12,000 by mutual consent; “ and all demands of the one against the other are hereby merged and included in said sum of $ 12,000.”

It was further agreed that all the property attached should be delivered to Ober, Atwater & Co., at the appraised value thereof at thetime the attachment was levied, except 1000 bushels of corn reserved to pay the rent due by Packard for the Viamede plantation; the cotton gathered and to be gathered, was to be shipped to Ober, Atwater & Co., and sold, and the broom corn was likewise to be sent to market and sold. Out of the estimated value of the property and the proceeds of the crops to be shipped to market and sold, Ober, Atwater & Co., were to pay certain privilege claims and the wages and rations of the laborers and overseer on said plantation — the expense of saving the crop and the costs of suit. The costs of attachment and of keeping the property while in the custody of the sheriff and the fee ot Packard’s attorney were also to be paid by Ober, Atwater & Co.

The residue of the property and proceeds, after paying the specified claims, was tobe applied to the payment of the $12,000 due by Packard to Ober, Atwater & Co. If any surplus remained it was to be paid over to Packard ; and if there was a deficit, Packard authorized his attorney to confess judgment for the amount thereof, with eight percent, interest and with a stay of execution for twelve months.

In February, 1869, the plaintiff John Q. Packard, brought this suit to annul the compromise of the twenty-seventh of November, 1868, and to recover from the defendants Ober, Atwater & Co., the sum $25,000, the value of his property on the Viamede plantation, obtained by them in virtue of said compromise. He also sued Ober, Atwater & Co., and the sureties on the attachment bond for $25,000 damages for illegally attaching his said property.

These two suits are consolidated, and the judgments adverse to the defendants rendered therein by the court a qua, are now submitted for revision to this court. We will first examine the suit to annul the compromise and to recover the value of the property received by Ober, Atwater & Co., in virtue thereof.

Tlie plaintiff alleges that said settlement or compromise “ was made in error and under a mistake of facts on his part — and through fraudulent practices on the part of the defendants in this, that believing the defendants to be honest men, and not being familiar with matters of account, he believed the sum sued for by them to be the true sum for which he was liable, less such payments as had been made, but since said settlement he has learned that the defendants have overcharged him by way of usurious interest, illegal and exorbitant commissions, and by errors in footings and double entries, in the full amount of six thousand dollars.” He also alleges that he was entitled to certain credits besides those appearing in the account of Ober, Atwater & Co. *' And petitioner further says, that before said settlement he was led to believe, and believes, through statements made by defendants and testimony which petitioner then believed, that the said deed made by him of the Live Oak plantation to defendant, Albert Gr. Ober, for the benefit of said firm of Ober, Atwater & Co., had not been accepted by John Janney, the duly authorized agent of the defendants, a fact which the petitioner could not know, for the reason that the acceptance, if made at all, was made in his absence, and laboring under said belief he made said settlement without taking into account the payment of the ten thousand dollars to be credited for the conveyance of said Live Oak plantation; and since said settlement petitioner has learned that said deed was duly accepted by the said agent, John Janney, and the same is binding upon the defendant, and for the conveyance of said Live Oak plantation he should be credited on the account exhibited against him in said suit in the full sum of ten thousand dollars. That if all said errors are corrected in said account and all his payments therein ■are duly credited he believes, and therefore avers the fact to be, that at the time of said settlement he was not and is not now indebted to the defendants to any extent whatever.” That in consequence of said settlement, “ made in error and induced through the deception and the fraudulent practices of the defendants,” they have obtained his property, worth $25,000.

The prayer of the petition is that said settlement be, declared a nullity and set aside, and that petitioner have judgment against the defendants for said sum.

The allegation that the defendants charged usurious interest and commissions, is no ground to annul the compromise; because the accounts containing them had been rendered to him before the compromise, and he did not act in error on that account. The errors complained of in the footings and double entry, and also the allegation that the defendant is entitled to certain credits besides those appearing in the account of Ober, Atwater & Co., are not established by the proof in the record. Besides the plea of payment filed in the suit on the tenth March, 1868, admitted the correctness of the said account. The sole ground, then, for annulling the compromise is the alleged error as to the acceptance of the deed of the Live Oak plantation by Janney, the agent of the defendants.

The plaintiff contends that it was an actual giving in payment to Ober, Atwater & Co., though in the form of a sale, for ten thousand dollars cash to Albert G. Ober. The defendants, however, contend that it was intended merely as collateral security for the debt of $18,303 49, due by plaintiff to them.

The error which plaintiff insists vitiates the compromise, is that he was led by the statements of the defendants to believe that Janney, their agent, had noc accepted the deed at the time of the compromise. It appears that in May, 1867, the plaintiff made a written agreement with Albert G-. Ober to sell him the Live Oak plantation, in the parish of Concordia, for ten thousand dollars cash, the vendor retaining possession till first January following, and reserving the right to redeem it by returning the purchase price; the vendee was nor to bind himself to pay any of the existing mortgages on the property.

On the twenty-second May, 1867, John Q. Packard and J. B. Packard ai pi a red before the recorder of the parish of Concordia to pass the deed pur.-uimt, in n.ur cement. Albert G-. Ober wrote to John Janney, advising him of the p oposed contract and askii g him to accept the act in his behalf. When the notary came to draw the deed he inserted a clause binding Ober to pay a special mortgage of $7500 existing on the property, believing it was necessary to do so in order to make a valid act. The Packards being in a hurry signed the act and left. Janney was not present. When became to examine the instrument he refused to accept it, because it was not drawn according to the agreement of the parties. In July, 1867, Albert G. Ober wrote to Janney, telling him that he did right in not accepting the deed, because it was not drawn according to instructions, but advising him now to accept it, and to let the error stand, till corrected by the Packards hereafter.

Under this instruction the deed was accepted by Janney, although he seems to have entirely forgotten it and also the receipt of the letter of July, 1867. About the time of the compromise he told Ober he had not accepted it; Ober told Sheldon, the attorney of Packard ; and a few days afterwards Janney, Ober, Sheldon and Packard happen to meet on a steamboat, and Janney told them, he had not signed the act. Even at the trial Janney swears he could not recollect having signed the deed, or the receipt of the letter of July, 1867, but his genuine signature was affixed to the instrument and the letter was attached thereto showing his authority to accept. It is very certain that Janney was honestly mistaken, for he could have had no motive in misinforming the parties. Ober swears he believed the statement of Janney to be true at the time the compromise was made; he informed-Sheldon thereof, but had no communication whatever on the subject with Packard. The compromise was suggested by the attorneys while taking testimony in the case.

Sheldon, the attorney of Packard, swears: “That the settlement was made in the belief, on my part, that the facts as to the deed were very doubtful at least, if not decidedly against Mr. Packard; and I never had an inlimation that the amount sued for by Ober, Atwater & Co. was otherwise than correct, and I am confident that Mr. Packard believed that they rendered to him accurate accounts, until some time after the settlement, although he has never been convinced that Mr. Janney did not sign the deed, and upon this point I think he yielded to my judgment, and I was decidedly of the opinion that if he could get a deduction of half the amount expressed in the deed, or nearly so, it would be best for him; and I believe, from present recollection, that nearly that sum was deducted.”

So it appears from the testimony of his legal adviser that Packard has never been convinced that Mr. Janney did not sign the deed, but yielded on this point to the judgment of his attorney, who was of the opinion that if he could get a deduction of neailyhalf the amount expressed in the deed it would be best, and nearly that sum was deducted in the compromise. But why should Packard be in ignorance as to the acceptance of the deed, an authentic act which had been standing for a year and five months recorded in the parish of Concordia, an adjoining parish to his residence 1 Besides, as a defense to the suit, eight months before the compromise he specially pleaded that he had conveyed in part settlement of the demand the Live Oak plantation, and that the deed was “duly accepted.” Is it to be supposed that a party who is sued for $17,896 66, and who has discharged $10,000 thereof by the giving in payment of a plantation, will remain in ignorance of the consummation of the deed for eight months after he sets up this defense, when he knows that the desired information stands upon the public records of an adjoining parish and an authenticated copy of the deed can be had at a small expense and with a little delay? How could there be any difficulty or doubt about the acceptance of the deed. The act was authentic, and of course Janney had to sign it in the presence of the recorder and two witnesses.

We are of the opinion that if Packard made the compromise in error of fact in respect to the acceptance of the deed, he was in no manner misled by the defendants; and it was because he failed to use reasonable diligence to get the information where he knew it could undoubtedly be found with little delay and at trifling expense. This was the most important defense to the suit which he had eight months before pleaded, and no prudent man would abandon it in the compromise if he thought it a good defense without making some exertion to procure evidence of the fact, during the period of that eight months. Besides, if the plaintiff had seén fit he could have protected himself by inserting in the act of • compromise a clause that it was made upon the condition that the deed or act of giving in payment had not been consummated by acceptance.

It does not appear that Albert G-. Ober has ever obtained possession of the Live Oak plantation ; on the contrary, we find in the record a notarial act in which, in a few weeks after the compromise, he renounces and disclaims any title whatever to said plantation and abandons the same to John Q. Packard and James B. Packard.

The compromise which the plaintiff seeks to annul was made by mutual consent of himself and the defendants for the purpose of putting an end to the law suit between them, and he preferred it to the hope of gaining, balanced by the danger of losing; it has a force equal to the authority of the thing adjudged. Revised Code, articles 3070, 3078. It ought not to be annulled for the reasons set up by the plaintiff.

Entertaining this view of the subject, it becomes unnecessary to examine the other questions presented in the case.

As the compromise can not be annulled, the suit upon the attachment bond must be rejected because it is one of the issues settled in the compromise.

It is therefore ordered that each of the judgments in these consolidated cases be annulled and reversed, and that there be judgment in both suits for the defendants with costs. It is further ordered that the reconventional demand be rejected as of nonsuit, and the right be reserved to each of the litigants in a separate suit to demand the inforcement of the reciprocal obligations of the compromise.

On Rehearing.

Taliaferro, J.

The main question in this case is as to the legal and binding force of the compromise entered into between the parties on tlie twenty-seventh of November, 1868. The facts upon which Packard, the plaintiff, bases his right to claim an annulment of the compromise appear to be these: That in the spring of 1867 a settlement of accounts took place between the parties and the indebtedness of the plaintiff fixed at $18,313 49 ; that in payment and liquidation of this sum he sold to the defendants the Live-Oak plantation in the parish of Concordia for $10,000, and for the remainder, $8303 49, he executed his promissory note; that the deed of conveyance he signed in Yidalia before the recorder of the parish of Concordia on the twenty-seventh of May, 1867; that defendants authorized John Janney to accept the act and sign it for them, which he subsequently did but not at the time the plaintiff signed it; that on the twenty-ninth of February, 1868, he was sued by Ober, Atwater & Co. for the sum of $17,896 60.

In defense of this suit Packard set up payment by sale of the Live Oak plantation and the note for $8303 49, executed by him at the settlement in May, 1867. In September following, the defendants took out a writ of attachment and seized the crop of the plaintiff on the Yiamede plantation in the parish of Tensas, together with a number of mules, farming utensils, etc. This attachment was sued out upon an affidavit that the plaintiff was about to depart permanently from the State. A motion was made to set aside the attachment, and pending this motion the plaintiff’s counsel was informed by one of the defendants that Janney had not signed the deed for the Live Oak plantation, and in a few days afterward the plaintiff’s counsel saw Janney himself and he informed the counsel that he had never signed the act. During the progress of the trial suggestions took place between the counsel of the parties that a compromise had better be made. The plaintiff’s counsel informed him of the statements that had been made in relation to the signing of the deed by Janney, and he suggested under that state of affairs that Packard had better agree to a settlement. This at first he declined, but afterward he acceded to the proposition, and the compromise was entered into. Packard now asseverates that he was induced to enter into this compromise solely under the belief that the deed had not been accepted, and the contract of sale of the Live Oak plantation not consummated, and that his supposed payment of $10,000 of his indebtedness to Ober, Atwater & Co. was a failure. We imagine that compromises have no immunity from decrees of nullity where error of fact, bearing upon the principal cause of the compromise, and coupled with fraud, are shown to exist. Here the error of fact alleged is, that Packard believed when he entered into the compromise that Janney had not signed the act of sale when the truth was that he had signed it; that this belief had been brought about by the defendants ; and supposing he would be unable to maintain his payment of $10,000 of his debt to the defendants by the transfer to them oí the Live Oak plantation, he acceded to the compromise. To determine the plaintiff’s right to be relieved from the effect of this compromise we mast look closely to the facts as we ñnd them in the record.

On the part of the defendants it was sought to be shown that the deed to the Live Oak plantation was in reality only intended to operate as collateral security or as a mortgage to secure the payment of the debt owing to the defendants by plaintiff. But the instrument must speak for itself. It seems clearly to be a sale with right of redemption. In drawing up the act, the notary introduced of his own motion a clause by which the purchaser was held bound to pay an outstanding mortgage debt against the plantation of about $7000. Janney, it seems, who was the agent or attorney in fact of Ober, Atwater & Co. authorjzed to accept and sign the act for them refused to accept it, as it contained this stipulation not agreed to by his principals. We find in the record an.act called “a rescission,” purporting to be explanatory of the deed of sale of the plantation as to the stipulation we have mentioned as having been introduced by the notary and ignoring the same, and further declaring the intention oí the parties to rescind the entire act and binding Packard to execute a mortgage on the Live Oak plantation to secure his indebtedness to defendants. This explanatory act, it seems, was never consummated. As shown by the record, it was not signed by any of the parties. We understand that, after this time and with full knowledge on the part of Ober, Atwater & Co. of the contents of the deed of the Live Oak plantation, they authorized Janney to sign the act, trusting to some other arrangement by which to be held harmless against the stipulation to pay the outstanding mortgage note against the property. A singular state of doubt and uncertainty amounting almost to perplexity arose in regard to whether or not Janney, as the agent of the defendants, ever signed the deed in question. Janney had declared that he had no recollection whatever of having ever signed it, and, in broader terms perhaps, that he had not.

The counsel for the plaintiff states that pending the proceedings relating to the attachment, Ober came to his office and told him he had investigated the question, and had employed experts to examine the original deed and compare Mr. Janney’sreal signature with that to the deed, and they had pronounced the signature not genuine, and that Mr. Janney denied that he ever signed the deed at all. The counsel further stated in his testimony that, in a day or two after, he saw Janney and asked him about it, and that Janney told him that he had never signed the deed, and would so swear. These statements of Ober and Janney were communicated to Packard, and used by his counsel to induce him to enter into the compromise. From the drift of the evidence bearing upon the views and motives of the parties in regard to this act of compromise, we think it shows that it .was willingly and even with avidity sought for-on the part of the defendants, while on the part of the plaintiff it was at first rejected and afterwards agreed to with some degree of reluctance, and finally gone into solely on the advice of his counsel, who seems to have been satisfied that the deed of sale had not been consummated.

It would be well now to look at the situation of things and the attitude of the parties at the time they entered into this compromise act. In regard to the signing of the deed by Janney, the truth is that it was signed by him; for, several months after he signed it, he went to Vidalia and examined the deed, and he states in his evidence that the signature was his and that he had signed it. It is clear, we think, that when he agreed to the compromise, Packard was in ignorance ot the fact that Janney had signed the deed, but believed that l.e had not. It is in proof that during the year 1868, Packard was cultivating a fine plantation in the parish of Tensas, which he had leased that year at a moderate price; that he was to pay in corn to be raised on the place; that he had a large crop growing upon the place — about three hundred acres in cotton, and, besides, one hundred and twenty acres in broom corn and one hundred and eighty acres in corn; that the season was propitious and that his crop bade fair to yield abundantly; that it was considered the finest crop that year in the neighborhood. His prospects were fair and flattering. The prices that season were inviting, and he was justified in anticipating large profits from his labor and industry. With the means he had a right, under these circumstances, to expect from the proceeds of his crops, what he thought to be his indebtedness to Ober, Atwater & Co. might readily have been paid off. He rested satisfied with the state in which he believed his indebtedness to them existed, namely: that he had paid them $10,000 by the sale of the Live Oak plantation, leaving a balance of something less than that sum due them by note.- It would seem, then, that he had no interest in entering into the compromise.

On the other hand, Ober, Atwater &' Co., without sufficient prudence, if not unjustifiably, took out an attachment, and caused his entire crop, work animals, agricultural implements, and all his appliances for carrying on a prosperous and promising business to be seized and taken out of Ms possession and control, and subjected to the management of tbe sheriff and such keepers as he might appoint. The ruinous and disastrous consequences resulting to Packard from this act is abundantly shown by the evidence. A general demoralization at once took place among the laborers on the plantation. They became alarmed for fear of losing their wages, and refused to continue their labor. Two weeks intervened, during which, in the height of the cotton picking season, nothing was done towards gathering the crops. Laborers could only be induced to return upon assurances of higher wages promptly paid. It is shown that cotton in the seed stored in outhouses was stolen; that a system of pillaging took place, intruders from the adjoining plantations going on the place and picking and carrying off cotton; that a large quantity of the broom corn was damaged from lying on the ground after being cut and not attended to; that other portions of it were awkwardly handled and packed, and turned out to be of little or no value.

There is not within the large scope of the testimony in this record anything to sustain the opinion that there was any intention on the part of John Q. Packard to remove from the State. On the contrary, the evidence shows that he was an ardent cultivator of cotton and wedded to the business of planting, and that his declarations were frequent that he had identified himself with the State and meant to remain in it. And his acts sustained these declarations. It is shown that the defendants proceeded solely on the statements made to them by a brother and a nephew of the plaintiff, to the effect that John Q. Packard was about to leave the State. These statements, it is safe to believe, were utterly without foundation, and proceeded from revengeful and vindictive feelings entertained by the brother of J. Q. Packard towards him. A short time before the attachment was taken out, this brother was heard to express feelings of this kind toward J. Q. Packard, and to threaten revenge. The record abounds with testimony which gives to this brother a very unenviable reputation for truth, sobriety and brotherly affection. A man having the proper regard for the proprieties of life would remain silent with regard to a brother’s wrong-doing, rather than blazon it forth to the world gratuitously; and the man who, uncalled for, appears to accuse his brother in order to injure him in the estimation of others, should be entitled to but little credit. The defendants, without knowledge other than that derived from the source from whence it came, should have hesitated before resorting to the harsh remedy they adopted.

When the question of the legality of the attachment came up before the court the defendants, no doubt, had misgivings of the result of that investigation; a heavy liability was to fall upon thepi if it should be determined that their attachment had been wrongfully taken out. It was important to avoid the risk of such a responsibility. It was an object with them also to annul the contract in regard to the Live Oak plantation, for if it should be decided to be a sale and it merged a large part of Packard’s debt, they were to have on their hands a property burdened with a mortgage amounting to over seven thousand dollars, which they had assumed to pay; and from the depressed value of lands about that time the Live Oak plantation was not likely to be available as a means of readily raising money. This state of things, we think, did exist at the time the compromise was made, and from it we conclude the defendants felt a strong interest in entering into it. It was then a primary object with them to impress the plaintiff with the belief that the deed of the Live Oak plantation had never been signed and accepted, and therefore there was no payment of the ten thousand dollars of the plaintiff’s debt to them. Accordingly we find Ober going to the office of Packard’s counsel to inform him of the non-execution of the deed and of the employment by Ober, Atwater & Co. of experts to compare Janney’s real signature with that to the deed, and of the result of their examination; and also that Janney denied that he ever signed the deed at all. Added to this it may be stated, what we have before noticed, that a day or two afterwards, Janney himself said to the counsel of Packard that he had not signed the deed, and that he would so swear. The unexecuted act called a "rescission,” to which we have before referred, drawn up by the defendants’ attorney, shows the solicitude with which they desired to annul the deed of the Live Oak plantation, to get clear of it as owners and to stand merely as mortgagees of that property. It is clear that the defendants’ counsel was satisfied that it would be to the interests of his clients to compromise and that he advised it.

From the entire range of facts and circumstances that come into view in this litigation, we think it sufficiently clear that Ober, Atwater & Co. had strong inducements to effect a compromise, and in order to carry out that purpose they were mainly instrumental in impressing upon the mind of the plaintiff’s counsel, and also upon that of the plaintiff himself, the belief that the deed of sale of the Live Oak plantation had not been signed by the defendants’ agent. We conclude that Packard, in entering into the compromise, acted under an error of fact bearing upon the principal cause of the agreement, and therefore that the act of compromise is null and void. C. C. 1824; 4 La. 347; C. C. 1827, 3079 ; 10 Rob. 65 ; 15 An. 268.

As the effect of the annulment of the compromise made by the parties is to restore things to the condition they were in previous to that time, we think the defendants, Ober, Atwater & Co., are entitled to credit for the amount of the note for eight thousand three hundred and three dollars and forty-nine cents, which according to the plaintiff’s own showing was given by him to the defendants in the spring of 1867 on a settlement of their business, and which note, by his own allegations, together with the sale to them of the Live Oak plantation, settled his indebtedness to the defendants. We are not satisfied from the record how or when this note was paid. If it were unpaid at the time of the compromise it must remain unpaid yet. It is equally so if it entered into the compromise, that being declared void.

The defendants having assumed to discharge the unpaid balance of the price of the Live Oak plantation due by Packard to Johnson from whom he bought, viz., the sum of seven thousand five hundred dollars, they should be indemnified against their liability to pay that balance. In these respects the judgment of the lower court should be amended.

It is therefore ordered that our former decree be set aside, the defendants Ober, Atwater & Co. be and are hereby decreed to be entitled to a credit of eight thousand three hundred and three dollars and forty-nine cents upon the judgments rendered against them in these consolidated cases by the district court, to date and take effect from the twentieth of June, 1870, the day on which judgment was rendered against them in said court. It is further ordered that the said defendants be and they are hereby authorized to retain in their hands out of the amount of the judgment now finally decreed against them the sum of seven thousand five hundred dollars, for and during the space of ninety days as an indemnity to them against the aforesaid mortgage on the Live Oak plantation; and to the extent of that sum (seven thousand five hundred dollars), execution is suspended for the said space of ninety days. And, if within that time, the said defendants shall not have filed in the Sixth District Court of New Orleans in this suit, sufficient legal evidence of their having paid and satisfied said mortgage in full or been satisfied by the sale of the Live Oak plantation, then and in that case execution to issue in favor of plaintiff for the said sum of seven thousand five hundred dollars. It is finally ordered that as thus amended the judgment of the district court be affirmed, the plaintiff and appellee paying costs of this appeal.

Ludeling, C. J.

I adhere to the opinion and decree heretofore rendered. The error complained of is an error as to what evidence or proof could be adduced, and not an error of fact bearing upon the principal object of the compromise.

Mr. Justice Wyly adheres to the original decree delivered in this case.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 3374.
    Mrs. Azema Leigh, Widow, v. Knickerbocker Life Insurance Company, of New York.
    The following note was given to defendants for a part of the premium due on renewal for a policy of insurance : “ New York, May 7,1870. Three months after date, without grace, I promise to pay to the order of the Knickerbocker Life Insurance Company one hundred and twenty-nine dollars and interest, value received in premium on policy No. 2051 (37,593), which policy is to be void in case this note is not paid at maturity according to contract m said policy”

    The question is whether this note was payable at noon, on the eighth of August, 1870, (the seventh being Sunday), or during business hours.
    The portions of the policy relied on by the defendants as fixing the maturity of said note are the following: “ And the omission to pay the said annual premium on or before twelve o’clock noon, on the day or days above mentioned for the payment thereof, or failure to pay at maturity any note (other than the annual premium note) given for premium interest or other obligation on this policy, shall then and thereafter cause said policy to he void, without notice to any party or parties interested herein.”
    The insured paid a portion of the premiums in cash and for the balance gave three notes, one of which is above transcribed. The receipt of the company runs thus: ‘‘ Renewal No. 69,003. New York, May 7, 1870, received of Azema Leigh seven hundred and ninety-eight dollars and eighty cents in cash, and notes (exclusive of interest as stated in the margin hereof), which amount, if said notes cure duly paid on .or before the maturity thereof will complete the payment of the premium necessary to continue policy No. 2051 in force until the seventh of May, 1871, at noon, and'in case said notes, or either of them, shall not he paid on or before the maturity thereof, said policy shall at once become void without notice,” etc.
    In the opinion of the court the notes referred to in the policy as being payable at noon, are the annual premium notes, which are due on the seventh of May of each year, and not the notes given for a part of the premium and falling due at such dates as may he agreed upon at the time. Whenever the words “ at noon ” are used in the policy, it is in immediate connection with the words “seventh of May.” The note itself and the receipt contain the stipulation in general terms, that, “if not paid at maturity,” the policy will be void. The expression or words at the end of the note, “ according to contract in said policy,” must be construed as referring to the effect of non-payment at maturity— the contract in that respect — rather than the hour at which the note must be paid.
    The words “ at maturity ” refer to and include the whole day unless specially and distinctly limited to a certain hour of the day. The expression, “ three months after date without grace,” means that the note is to be paid on the last day of the three months, without the usual three days of grace. No reference is made to hours. The annual payments were to he made by noon oi the day, because probably the policy was fixed to expire at noon; hut the notes for the stipulated instalments of the extended premium were taken as an accommodation to the party, and were to he paid at maturity in the ordinary signification of the term.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      Cooley á Phillips, for plaintiff and appellee. Hays & New, for defendant and appellant.
   Howell, J.

The principal question in this case is -whether the note given for a part of the premium was payable at noon on the eighth' of August, 1870, or during business hours. It is in the following words:

“ $129. New York, May 7,1870.

“ Three months after date, without grace, I promise to pay to the order of the Knickerbocker Life Insurance Company one hundred and twenty-nine dollars and interest, value received in premium on policy No. 2051 (37,593), which policy is to be void in case this note .is not paid at maturity, according to contract in said policy.”

The seventh of-August being Sunday the note was not due until Monday, the eighth. The insured died at one o’clock on said date— eighth August, 1870. The portions of the policy relied on by the defendants as fixing the maturity of said note are the following : “And the omission to pay the said annual premium on or before twelve o’clock noon, on the day or days above mentioned for the payment thereof, or failure to pay at maturity any note (other than the annual premium note) given lor premium, interest or other obligation on this policy, shall then aud thereafter cause said policy to be void, without notice to any party or parties interested herein.”

“Conditions op Insurance.

First — The premium must always be paid on or before twelve o’clock noon of the day upon which it falls due, and the party paying should be careful to obtain a receipt therefor, signed by the president and secretary, according to thp terms of the charter.”

In the first part of the policy it is stated that in consideration of the premium of $798 80 “paid by Azema* Leigh, and of nine further annual payments of a like sum to be made on or before the seventh day of May, in each year, until the last payment is completed on May 7, 1878, and of the interest annually on all premium notes on this policy, on or before the seventh day of May, at noon in each year, until the said notes are paid,” etc.

The policy was dated seventh May, 1869, and was to continue for the time of the natural life of the insured on the stipulated conditions. In May, 1870, the premium for the ensuing year was settled by the payment of one-fourth of one-half thereof in cash and the balance in three notes of $129 each at three, six and nine months. The other half of the premium was constituted a loan on which the interest was included in the settlement. The receipt contemplated by the policy was taken and is in the following words:

“ Renewal No. 69,003. New York, May 7, 1870.

Received of Azema Leigh seven hundred and ninety-eight dollars and eighty cents in cash and notes (exclusive of interest), as stated in the margin hereof, which amount, if said notes are duly paid on or before the maturity thereof, will complete the payment of the premium necessary to continue policy No. 2051 in force until the seventh day of May, 1871, at noon; and in,,case said notes, or either of them shall not be paid, on or before the maturity thereof, said policy shall at once become void, without notice,” etc.

It is tlie first of those three notes that is involved in this controversy.

In our opinion the notes, referred to in the policy as being payable at noon, are those which are due on seventh May, of each year, and not the notes given for a part of the premium and falling due at such dates as may be agreed on at the time. Wherever the words “at noon ” are used in the policy, it is in immediate connection with the words “ seventh of May.” The note itself and the receipt contain the stipulation, in general terms, that if “not paid at maturity” the policy will be void. The expression or words at the end of the note, “according to contract in said policy,” must be construed as referring to the effect of nonpayment at maturity — the contract in that respect— rather than to the hour at which the note must be paid. The words “at maturity” refer to and include the whole day, unless specially and distinctly limited to a certain hour of the day. We find no words in the note itself, or the policy, declaring that such a note shall mature at noon on a particular day. It says expressly, “ three months after date, without grace.” This means that the note is to be paid on the last day of the three months, without the usual three days of grace. No reference is made to hours. The annual payments were to be made by noon of the day, because, probably, the policy was fixed to expire at noon; but the notes for the stipulated instalments of the extended premium were taken as an accommodation to the party, and were to be paid at maturity, in the ordinary signification of the term.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 5209.
    Mary Malady v. William Malady, et al.
    The judge a quo erred in making absolute the rule for the appointment of a receiver in this case. The petition onrule does notaver a necessity for it, nor any loss, injury or damage likely to arise to plaintiff, if it should not be done. There is no reason why the entire revenues of all the property belonging to the litigants should be taken possession of by a receiver, on the ground that the plaintiff owns one-fourth of it, when said plaintiff fails to allege even a cause for such appointment.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.

      Walter H. Sogers, for plaintiff and appellee. F. T. Merrick, Face & Foster, for defendants and appellants.
   Taliaferro, J.

The defendants appeal from the following interlocutory orders rendered by the lower court during the trial of this case, viz:

First — -The order of thirtieth January, for a sale of the property.

Second — Dismissing the defendants rule to rescind the order of sale.

Third — Dismissing the opposition to the report of experts.

Fourth — The appointment of the sheriff to receive the rents and revenues of the property.

In May, 1873, a decree of this court was rendered decreeing the plaintiff entitled to one-fourth of certain real estate standing in the name of Mary B. Caldwell, one of the defendants. Predicated upon that final decree, establishing the rights of the parties to the property that had been the subject of litigation, the plaintiff instituted proceedings in the Fourth District Court to cause a partition to be made. An order was rendered appointing experts to examine and report whether the property was susceptible of division in kind without injury to the owners. On the part of the plaintiff there appears to have been a disposition to push forward proceedings at a speed scarcely sanctioned by legal rules, and on the part of the defendants a willingness to submit to the inevitable law’s delay. No notice, it seems, was served upon the defendants of the filing of the report of the experts, according to article 456 of the Code of Practice. The defendants, after the notice required by that article, which they are entitled to but which was not given, had ten days within which to file their opposition. C. P. 457. They filed an opposition, however, on the ninth day after the filing of the report; but before this opposition was filed the court rendered an ex parte order approving and homologating the report of the experts. The opposition was filed on the twenty-sixth of January. On the same day the plaintiff filed a petition for a sale of the property for cash, alleging that the report of the experts had been homologated. On the thirtieth of January an ex parte order was rendered on this petition for a sale of the property ior cash, in conformity with the report of the experts. The defendants then took a rule on the plaintiff to have this order of sale rescinded, on the ground that it had been improvidently rendered. Pending this rule before the court the defendants, on the fourteenth February, introduced two witnesses to testify in regard to the practicability of a division of the property in kind. These witnesses testified that the property is susceptible of a division in kind, and gave their reasons for this opinion and presented their programme upon which, in their view of the case, a division in kind can be made. The rule to rescind was dismissed on the second of March, as was also the opposition of defendants to the homologation of the report of experts.

The plaintiff proceeded by rule on the tenth of January to have the civil sheriff appointed receiver, to collect rents and revenues of all property she claimed to have an interest in. Issue was joined on this rule denying the right of the plaintiff to have a receiver appointed. The court made the rule absolute on the twenty-ninth of January, and appointed the sheriff keeper as prayed for by the plaintiff. The petition or rule for this appointment does not allege any reason for the appointment of a receiver. It does not aver a necessity for it; nor loss, injury or damage likely to arise to the plaintiff, if it should not be done. We can see no good reason why the entire revenues of all the property shall be taken possession of by the sheriff on the ground that the plaintiff owns one-fourth of it, when she fails to allege even a cause for such appointment. We think the court erred in making the rule absolute. 11R. 433 and 4 An. 456.

We think all the foregoing orders appealed from and numbered from one to four inclusive, were irregularly and improperly rendered, and it is now ordered that they be annulled and set aside. It is further ordered that the report of the experts appointed to examine and report whether the property owned in common by the parties to this suit is susceptible of division in kind or not, be approved and homologated, and it is further ordered that the said property be sold and the proceeds partitioned between the parties upon the basis of their respective shares and interests in the property, the sale to be made in conformity with law and this order.

It is lastly ordered that this case be remanded to the court of the first instance for the purpose of rendering all such ulterior orders and taking all such further proceedings herein as may be necessary to effect and complete the said partition, the plaintiff and appellee paying costs of this appeal.

Rehearing refused.


author: Taliaferro,- J.

text:
    No. 5093.
    Mrs. Elise Labauve v. Mrs. Emily Woolfolk et al.
    Nothing prevents the owners of property in common from exercising their rights of partition, and it is not seen how the proceedings complained of in this case by plaintiff can injure her right of mortgage on the property which the owners have taken measures to partition, as her judicial mortgage will follow the property or its proceeds.
    Appeal from the Fifth Judicial District Court, parish of Iberville. Oole, J.

      Barrow & Pope, Herron and dallaugher, for plaintiff and appellant. Samuel Mathews, B. T. Merriclc, Race <& Roster, for defendants and appellees.
   Taliaferro,- J.

The plaintiff alleges that her late husband, Zenon Labauve, was a judgment creditor of Mrs. Emily Woolfolk in large sums, as shown by three several judgments duly recorded and being judicial mortgage upon her property. As survivor in community and as usufructuary the plaintiff sets up her right to bring this action, the object of which is to defeat what she alleges to be a scheme concocted by and between Mrs. Woolfolk and her children, who are named in the petition, to injure and destroy the j udgm ent claims and mortgage rights of the plaintiff, hy using the machinery of the courts to effect a partition and sale of all the property upon which her mortgage rights bear and are secure, by a fraudulent and fictitious assignment on the part of Mrs. Woolfolk to her children of the right of usufruct of one-half of said property, and by eollusively and fradulently permitting judgments to be rendered against her, and under them to allow her usufructuary rights on the property to be sold, and directly and indirectly to be purchased by her son, Austin Woolfolk. The plaintiff prays judgment recognizing her claims under and by virtue of the judgments and judicial mortgages resulting from the same, as set forth in her petition; that the judicial mortgages she claims as bearing on all the real property of Emily Woolfolk be decreed to have priority over any right, claim or mortgage set up in favor of the parties to the said act of partition ; that the judgment rendered by the parish court on the sixteenth September, 1869, decreeing the said partition, be decreed null and without effect; that the notarial act, of date of the tenth February, 1869, before Austin Hunt, be declared null so far as it may affect the rights of the petitioner; that the judgments referred to, to wit: The judgment in favor of Austin Woolfolk, No. 420, and that in favor of Thomas Patrick, No. 421, and the sales made under these judgments be declared simulated and fraudulent, and null and void, as being injurious to the plaintiff’s rights and designed to defraud her of her just claims against the said property. She finally prays that an injunction he granted in her favor restraining and prohibiting all the aforesaid parties from taking further proceedings in regard to a sale of the property as advertised, until the whole can be inquired into' legally after due citation, and on the trial of the injunction that it be made perpetual, and for costs, etc.

The defendants filed a peremptory exception to the plaintiff’s action, taking the ground:

First — That plaintiff is not party to any of the judgments which she prays to have annulled, and has no legal right to institute this action of nullity.

Second — 'That this court (the district court in which the action was brought), is without jurisdiction to annul a judgment of the parish court, or to rank or class the claim of the plaintiff in the distribution of the proceeds of the partition sale which may be made in that case.

Third — In bar of the plaintiff’s action the prescription of one year is pleaded, whether the action is to be regarded as revocatory or one to annul.

The defendants pray for a dissolution of the injunction and for damages. The exception was sustained. The plea of prescription was held good and the suit dismissed. The injunction was dissolved with five hundred • and fifty dollars damages, for attorney’s fees and for costs of readvertising the sale of the property injoined, and an order rendered that the auctioneer proceed with the sale of it.

From this judgment the plaintiff appeals. We think the judgment properly rendered. Nothing prevents, owners of property in common from exercising their right of partition, and we do not see how the proceedings complained of by the plaintiff can impair her right of mort“ gage on the property which the owners have taken measures to partition, as her judicial mortgage will follow the property or its proceeds.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Kehearing refused.


text:
    No. 3267.
    Emma J. Thacker v. Thomas Dunn.
    It is clearly shown in this caso that there has been a great discrepancy between the amounts of revenues and expenditures in the administration of the minor’s estate. The excess of the expenditures should fall upon the defendant. As he assumed the functions and discharged the duties belonging of right only to a tutor, and had exclusive control of the person of the minor, of his property and its revenues, so he must he held to the responsibilities of a tutor.
    The court below erred in not overruling the exception to its jurisdiction in regard to annuling the mortgage granted by plaintiff to defendant. The defendant filed an account as administrator. That instrument has also the character of a tutorship account. The account shows a considerable balance against the minor, the present plaintiff, who, at the instance of the defendant, executed a mortgage on her property to secure the payment of that balance.
    The administrator’s account was homologated by order of the judge a quo. The mortgage has for its basis the account so homologated. That the judge a quo has jurisdiction of the suit to annul the amount and the order homologating it, there can he no doubt. The annulment of the account and judgment of homologation carries with it necessarily the annulment of the mortgage, because it expunges the amount of the assumed indebtedness for’which the mortgage was given, thereby sweeping away the basis npon which it rested.
    Appeal from the Second District Court, parish of Orleans. Dwvigneaud, J.

      Fellows & Mills, for plaintiff and appellee. T. .G-ilmore & Sons, for defendant and appellant.
   Taliaferro, J.

This action is brought to annul a mortgage executed by the plaintiff, as she alleges, through error on her part and fraud on the part of the defendant, to secure an amount of indebtedness pretended by him to have arisen from his administration of the succession of the plaintiff’s mother, and presented by the defendant’s account of that administration, homologated by judgment of the Second District Court of New Orleans. The plaintiff prays also the annulment of said account of administration, and the judgment homologating the same. The answer is a general denial. The defendant specially denies that he was ever the tutor to the plaintiff during her minority, or that he is liable to her in that capacity. There was an exception taken to the jurisdiction of the court, which was sustained as to the act of mortgage. The court rendered judgment annuling the administrator’s account and the order homologating it, and ordered the administrator to file within twenty days a full and complete account of his administration of the said estate. From this judgment the defendant appeals.

The plaintiff was left at an early age, by the death of her father and mother, without any known relatives. At the instance of a priest who had been the spiritual adviser of her mother, and by a promise made to her father by the defendant, he took upon himself the administration of the estate of Mary Thacker. It seems that a man named Finch had been appointed tutor to the minor, and that she lived a year or two in his house; but beyond signing his name a few times to instruments presented to him, we do not find that he ever did any act in the capacity of tutor.

The entire control and management of all the property of the succession of Mary Thacker, the residuum of which belonged to the minor, was in the hands of the defendant as administrator; that the minor went to live with him; it appears that he had the personal care of her and superintended her education; that he settled the debts of the succession, paying some of them out of his own means, and preserving for the minor a house and lot in the oity of New Orleans, worth some five or six thousand dollars, the rent of which he collected. In the year 1865, the minor, at the age of about fourteen years, was upon advice of her friends sent by the defendant to a convent school in Kentucky, where she remained until she graduated in 1869, and returned to New Orleans in July of that year. In 1870 she was emancipated, and in February following the defendant filed his final account of administration, which was presented to the plaintiff, and after citation to her was homologated. It showed a balance against the plaintiff of $3107 81. For this sum she executed the mortgage which she now seeks to annul in this action.

It is announced on the part of the defendant that he has no other account to render than the one at first presented, and on the part of the plaintiff it is suggested that a final judgment may properly be rendered by this court upon the evidence and data before it.

We incline to think the litigation may be terminated here, and proceed to examine the evidence with that view. The account of the administrator gives with precision the various items of expenses incurred for the minor’s education and a detailed statement of her revenues arising from rents. It is chiefly to the charges of the administrator of expenses incurred for the maintenance, clothing and education of the minor that his account is sought to be annulled, and the ground taken is that the expenses greatly exceed the revenues, and the administrator is held liable as the tutor of the minor, and so held to account, and therefore is not entitled to credit for any expenditures on the minor’s account above the amount of her revenues, which were amply sufficient for all the purposes of the expenditure necessary on her account. The plaintiff’s counsel have with much industry presented a tabulated statement formed from the accounts, showing the amounts of revenues and expenditures, by which it would appear that the latter have considerably exceeded the former. The deductions of the excess of expenditures over the revenues being made from the amount of balance against the administrator, as stated in his account, to wit: $3107 84, there appears a balance in favor of the defendant of only $918 30, to which amount the plaintiff asks that his demand against her be reduced. Vie see no objection to this reduction. It is clearly shown that there has been a great discrepancy between the amounts of revenues and expenditures, and we think the excess of the expenditures should fall upon the defendant. As he assumed the functions and discharged the duties belonging of right only to a tutor, and had exclusive control of the person of the minor and of her property and its revenues, so he must be held to the responsibilities of a tutor.

The court below, we think, should have overruled the exception to its jurisdiction in regard to the annulment of the mortgage. The defendant filed an account as administrator. That instrument has also the character of a tutorship account. The account shows a considerable balance against the minor, the present plaintiff, who, at the instance of defendant, executed a mortgage on her property to secure the payment of that balance. The administrator’s account was homologated by order of the judge a quo. The mortgage has for its basis the account so homologated. That the judge a quo has jurisdiction of the suit to annul the account and the order homologating it, there can be no doubt. The annulment of the account and judgment of homologation carries with it necessarily the annulment of the mortgage, because it expunges the amount of the assumed indebtedness for which the mortgage was given, thereby sweeping away the basis upon which it rested. Subíalo fundamento cadit opus.

It is therefore ordered that the judgment of the district court be annulled and avoided. It is further ordered that the account rendered by the administrator be amended, so as to reduce the indebtedness thereupon shown in favor of the defendant from $3107 84 to $918, the amount now fixed as due by the plaintiff to the defendant; that the note and mortgage executed by the plaintiff to secure the payment of the said sum of $3107 84 be annulled, and the same are declared void and without effect. It is now ordered that the said, account, as amended, be homologated and confirmed. It is further ordered that the plaintiff pay costs in the court below, the defendant and appellee paying costs of this appeal.

Rehearing refused.


author: Wyly, J.

text:
    No. 3357.
    Mrs. Elizabeth George, Widow and Tutrix, v. Charles Campbell— Magee & Kneass, Intervenors.
    The plaintiff, not having tendered to the defendant the sum of money conceded to have been paid by the latter for taxes on certain property -which she claims to be reconveyed to her, ought not to recover judgment against him tor damages arising from his refusal to make the reconveyance to which plaintiif is entitled.
    The claim of the intervenors predicated on the allegation that George, the husband of the plaintiff, bought the property which is sought to be made the object of the reconveyance, with money belonging to them, and which he employed for their benefit as their agent, can not be maintained. George was not the agent of the intervenors before the war of the rebellion, and was not acting as such at the time it occurred. They could not have appointed him afterwards, during the war, because they were citizens of Pennsylvania, a loyal State.
    But whether the property in question was bought or not with the money of the intervenors is immaterial. If George had stolen the money from the intervenors, they could not have become the owners of the property acquired therewith by him. Besides, they can not establish title to immovable property by parol, and they have no written evidence in support of their pretensions.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      E. T. Merrick, Eace & Foster, for plaintiff and appellee. Gibson & Austin, for defendants and appellants. Labatt & Aroni, for intervenors and appellants.
   Wyly, J.

In May, 1862, John R. George, whose succession the plaintiff represents, conveyed the lot of ground on Prytania street, which he acquired from John Holmes, to the defendant, Charles Campbell.

The plaintiff, alleging that this sale was a mere simúlation, intended to protect the property of George during his absence in the Confederacy, which occurred immediately thereafter, sues for the property, and also for $1000 damages, resulting from the refusal of the defendant to reconvey the same pursuant to the agreement at the time of said transfer.

In answer to the petition, the defendant admitted having possession of the property, and averred his willingness to turn over the same to the legal representatives of the succession of John R. George, upon their reimbuising him the amount he had advanced for taxes and necessary expenses, amounting to $667. He also answered the interrogatories or facts and articles propounded by the plaintiff, admitting that the $4500 paid for the property had been returned to him by George two days after the sale, and that the understanding was that the property was to be reconveyed by him to George. There was much irrelevant matter in the answers which was improperly inserted therein.

After the issue was made up and the defendant had answered the interrogatories or facts and articles, Magee & Kneass intervened, setting up title to the property in controversy on the ground that John R. George was their agent, and the funds with which he acquired said property belonged to them.

The court gave judgment in favor of plaintiff for the property, and also condemned the defendant to pay $1000 damages. A remittance-of $270 37, the amount of taxes conceded to have been paid by the defendant, was entered in reduction of the judgment for $1000.

The defendant and intervenors have appealed.

The plaintiff not having tendered, to the defendant the sum of money conceded to have been paid by him for taxes, ought not to recover judgment against him for damages arising from his refusal to make the reconveyance. In other respects we regard the judgment as correct.

John R. George was not the agent of the intervenors appointed before the war of the rebellion, and acting as such at the time it occurred. They could not have appointed him afterwards because they were citizens of Pennsylvania, a loyal State.

We are not satisfied that the funds actually employed by George in purchasing the property in question, in February, 1862, belonged to the intervenors. But whether they did or not is immaterial. If George had stolen the money from the intervenors, they would not have become the owners of the property acquired therewith by him. Besides, in this controversy the intervenors can not establish title to immovable property by parol, and they have no written evidence in support of their pretensions.

It is therefore ordered that the judgment herein be amended by striking out that part thereof decreeing plaintiff $1000 damages, and by providing that the defendant be not required to execute the conveyance to the plaintiff until the latter pays over to him $270 37, the amount of taxes paid by him; and as thus amended, it is ordered that the judgment be affirmed, appellee and the intervenors paying costs of appeal.

Rehearing refused.


author: Morgan, J. Taliaeerro, J.,

text:
    Nos. 3281, 3282.
    D. R. Carroll & Co. v. New Orleans, Jackson and Great Northern Railroad Company, and Alcus, Scherck & Co. v. The Same. Consolidated.
    The growers of certain cotton shipped the same to the respective plaintiffs, by the New Orleans, Jackson and Great Northern Railroad. The cotton was destroyed by fire while in one of the railroad company’s cars. The insurance company in which it was insured paid the loss, and the question is, whether the insurance company can recover its loss from the railroad company ? It must be answered negatively.
    There was no oontract between the two companies; consequently there was no obligation from the one to the other. There was no conventional subrogation from the assured to the assurers, and there was certainly no legal subrogation by which payment by the one entitled them to payment from the other.
    The insurance company paid the loss for which they received a premium for insuring against, to the persons who suffered the same. As there was no obligation between them and the railroad company, and as no obligation existed towards them from the railroad company, they have no claim against it.
    Appeal from the Fourth District Court, parish of Orleans. TMard, J.

      Albert VoorMes, for plaintiffs and appellees. L. H. Simonds, Hays & New, for defendant and appellant.
   Morgan, J.

The party in interest in both these suits is the Merchants’ Insurance Company. The growers of certain cotton shipped the same to the respective plaintiffs by the New Orleans, Jackson and Great Northern Railroad. Its loss by fire during transit was assured against in the Merchants’ Insurance Company. It was destroyed by fire while in one of the railroad company’s cars. The insurance compaay paid the loss. The question here is, whether the insurance company can recover its loss from the railroad company Í We think not. There was no contract between the two companies; consequently there was no obligation from the one to the other. There was no conventional subrogation from the assured to the assurers, and there was certainly no legal subrogation by which payment by the one entitled them to payment from the other.' The insurance company paid the loss for which they received a premium for insuring against to the persons who suffered the same. As there was no contract between it and the railroad company, and as no obligation existed towards them from the railroad company, they have no claim against it.

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

Taliaeerro, J.,

dissenting. These suits were brought against the railroad company to make them liable, as common carriers, for certain cottons consigned to the plaintiffs as factors of the owners of the cotton, which was taken upon their cars at station No. 12, under contract of affreightmeni, to be delivered in New Orleans, but which the company failed to deliver. The cotton was insured at the office of the Merchants’ Insurance Company. The loss of the cotton being ascertained, the consignees applied to the company under the contract of insurance and were paid the value of the cotton, and the money was paid over to the owners. It seems that the names of the parties appearing in these suits as plain tiffs,‘are used by their consent by the Merchants’ Insurance Company, the real plaintiff in both cases. The defense is:

First — That the cotton was burned by unavoidable accident in spite of due care and diligence on the part of defendant.

Second — And even if unavoidable accident be not established by defendant’s evidence, the burden of proof is on the insurance company to show negligence, inasmuch as its claim is not for non-delivery under a contract of affreightment, but is the claim of a third party claiming damages resulting from the fault of the defendant.

Third — The real owners of the cotton, the planters, have received from the insurance company, under its contract with them, the value of the cotton, and have no interest in the suit.

There was judgment in favor of the plaintiffs, and the defendants have appealed.

The cotton, it appears, was properly stored at Brookhaven in a close box car, having no other openings than the doors which v ere locked, and remained so until the fire burst forth while the train was on'the side track at Magnolia. The defendants contend that however the fire may have originated it seems to have been an unavoidable accident. It is clear that the destruction of the cotton by fire under the circumstances shown, does not relieve the railroad company from liability to pay for it.

The defendant contends that no conventional subrogation to the rights of the owner of the cotton is alleged or shown on behalf of the insurance company ; that the insurance company was not bound with or for the defendant, in the sense of the Civil Code, nor had an interest in discharging the debt.

The cotton was insured against fire. It was destroyed by fire. The railroad company was principally bound. Its liability was prima fade fixed and could only be avoided by showing affirmatively on its part that the accident and loss resulted from vis major. In every other contingency the law would attribute the loss to negligence on the part of the carriers, or to events which it was in their power, or that of their agents to prevent. The insurance company was bound to make good a loss arising from a casualty against which it had expressly insured the owners. It chose to pay the indemnity and look to the common carriers for reimbursement. If the latter were bound to make good the loss, what difference to them whether they paid the owners or the insurers? In a suit by the insurers against the carriers, the latter could set up all the defenses against the insurers which they might have made in a suit against them by the owners. Being bound to the owners to indemnify them for the loss that occurred, and having discharged that obligation I am clearly of the opinion the insurance company stands subrogated by law to all the rights of the owners against the carriers, as they certainly are upon general principles of equity. Civil Code, articles 2160, 2161.

Wrtr, J. I concur in this dissenting opinion.

Rehearing refused.


author: Wyly, J..

text:
    No. 3375.
    Henry F. Wade v. David W. Eames.
    Plaintiff, revoking tlie donation wliicli [he made to his wife of a certain pieoe of property, seeks to recover possession of said property from defendant, wliose title is derived from plaintiff’s wife under tlie donation aforesaid.
    It appears that Mrs. Wade desired to donate the property in question, thus donated to her, to her daughter, Mrs. Eames, “as an extra portion over and above her legitimate share in the succession of said donor,” estimating it at $7000, and to secure the title, it was specially stipulated in the act, “that the said donor hinds herself and her heirs to war* ant and forever defend the said property against all legal claims and demands whatsoever.” To tMs act the plaintiff was a party, approving of it and authorizing Ms wife. He is therefore, estopped from disputing the title of defendant.
    [Besides, the prescription of ten years invoked by defendant, is a complete bar to the action.
    Appeal from the Fourth District Court, parish of Orleans. IMard, J.

      Boselms & PMlips, for plaintiff and appellant. Fellows <& Mills, for defendant and appellee. T. Gilmore, Ootton & Levy, for defendants, called in warranty.
   Wyly, J..

On the seventeenth of May, 1860, the plaintiff donated a certain piece of property to his wife, and on the same day she donated it to the wife of the defendant, who was her daughter by a previous marriage. Subsequently, defendant’s wife died, leaving a child who inherited this property. The child dying, the defendant inherited it. Subsequently, the wife of the plaintiff died ; and then the plaintiff made a notarial act revoking the donation of the property to his wife and sued the defendant to recover possession thereof. The court gave judgment for the defendant and the plaintiff appeals.

It appears that Mrs. Wade desired to donate the property in question to her daughter, Mrs. Eames, as an extra portion over and above her legitimate share in the succession of said donor,” estimating it at $7000. And to secure the ticle it was specially stipulated in the act, that the said donor binds herself and her heirs to warrant and forever defend the said property against all legal claims and demands whatsoever.”

To this act the plaintiff was a party authorizing and assisting his wife.

We think the plaintiff is estopped from disputing the title of the defendant. Valuable improvements have been erected and taxes paid on the faith of the title which Mrs. Wade passed with full warranty, and the plaintiff was a party to the act authorizing and approving of it. It would be a fraud to allow him now to recover the property. Besides, the prescription of ten years invoked by the defendant, is a complete bar to the action.

Judgment affirmed.


author: Morgan, J.

text:
    No. 4823.
    Succession of Thomas F. Ostrander.
    The prescription of one year was pleaded in bar to the opposition made to the administrator’s tableau, on the ground of usurious interest being charged on certain notes placed on said tableau. The plea should have been entertained.
    Appeal from the Second District Court, parish of Orleans, lissot, J.

      Kenna/rd, Howe & Prentiss, for the administrator, appellant. J. 8. Whitalcer, for Mrs. Ostrander, opponent and appellee.
   Morgan, J.

The administrator has appealed from the judgment rendered in opposition to his account by Mrs. Ostrander.

His counsel were allowed on his tableau $250. The Judge reduced them to $150. Of this he complains.

The succession consisted of real estate, estimated on the inventory, at $3500, and subsequently at $4250. It sold, however, for $2925. So far as the record discloses, the services rendered were :

First — Opening the succession.

Second — Causing an inventory to be taken and having the same homologated.

Third — Getting an order of sale.

Fourth — Taking a rule on the purchaser to comply with his bid. Fifth — Filing an account and defending the same.

Considering the value of the succession it seems to us that $150 is a reasonable fee.

It seems that the administrator is the owner of two promissory notes for $750 each, bearing mortgage and vendor’s privilege upon the property left by the deceased. He places himself on the tableau for the amount of these notes with the interest due thereon, $2273 64. Opponent avers that usurious interest has been charged on these notes, which would reduce them to $1100. The district judge found that usurious interest had been charged and therefore, rejected the entire interest. The interest was paid during Ostrander’s life. He pleads the prescription of one year against the opposition. The plea should have been sustained. See Johnson v. Phillips, 24 An. 156. McCracken v. Wells, 25 An.

In his brief, counsel for opponent objects to the privilege granted by judgment for taxes due. But he has not appealed from the judgment or any part thereof, nor has he asked, in answer to the administrator’s appeal, that the judgment be amended. We can, therefore, only pass upon the complaint of the appellant.

It is, therefore, ordered, adjudged and decreed that that portion of the judgment of the district court which fixes the fee of the counsel of the administrator be affirmed. And it is further decreed that that portion of the judgment which disallows the interest on the notes held by the administrator, be avoided, annulled and reversed, and that the amount placed on the tableau by him be approved and homologated. The costs to be paid by the succession.

Rehearing refused.


text:
    No. 3381.
    John Coleman & Co. v. The City of New Orleans.
    The cession to the United States of a certain lot of ground in the city of New Orleans, for the express and only purpose of erecting thereon a branch of tho Mint of the United States, together with the necessary appendages, is not a vente a remera. It laclrs one of the essentials of a sale — a price. Neither is the government of the United States, technically spealdng at least, the usufructuary of the property. It has only the use of it— the tonure thereto being preoarious, and the right to occupy the same restricted to suoh time as the government may see fit to occupy it for the purposes of a mint — the Government having the right to remove the same, whenever it may see fit, upon the happening of either of which events, the use of the property would immediately revert to the city.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Honor <& Benedict, for plaintiff and appellee. Geo. S. Lacey, city attorney, for defendant and appellant.
   Morgan, J.

The city contracted with the plaintiff to do certain paving on Esplanade street.

A portion of the paving was done in front of what is known as the Mint. For this work plaintiffs seek payment from the city. For answer, the city denies indebtedness, and says that the government of the United States has never legally disclaimed her ownership or title to the property, as is alleged in the petition.

There is no doubt that the contract was entered into as is alleged in the petition; that the work was done; that the amount charged therefor is the sum agreed to be paid, and that payment was demanded of the officers of the United States government and refused.

The bill has to be paid by the owner of the property. The question then is, who owns it?

“ In the month of May, 1835, the City Council of the city of New Orleans, adopted the following resolution :

“ Resolved, That the use of the square of ground, now inclosed, and known as Jackson square, situated in the city of New Orleans, and bounded as follows, to wit: by Esplanade street, Garrison street, Levee street, and the public Road, be ceded to the Upited States, for' the express and only purpose of erecting thereon, a branch of the Mint of the United States, together with the necessary appendages; and that the Mayor be and he is hereby authorized to convey by notarial act, to Martin Gordon, Esq., the commissioner appointed by authority of the said United States, to superintend the erection and building of the said Mint, the use and occupation of said square, for the purposes aforesaid.

“Be it further resolved, That should it hereafter be deemed necessary by the government of the United States to remove the Mint contemplated to be established as aforesaid, or to cease to occupy it for such purposes, then the said act to be null and void.

“ On the nineteenth day of June, in the year aforesaid, the United States government, through Martin Gordon, commissioner as aforesaid, accepted the transfer embraced in the foregoing resolution, and from that date, down to the present time, the Federal authorities have been in possession of the property, using the same for the purposes of a Mint.”

The foregoing statement is taken from the brief of the City Attorney.

He urges upon us that this is a vente a rémbré. We do not think it is. It lacks one of the essentials of a sale, viz : a price.

Neither is the government, technically speaking at least, the usufructuary of the property. It has simply the use of it; the tenure thereto being precarious, and the right to occupy the same restricted to such time as the government of the United States may see fit to occupy it for the purposes of a Mint — the government having the right to remove the same whenever it sees fit, upon the happening of either of which events, the use of the property would immediately revert to the city.

Judgment affirmed.


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

text:
    No. 3127.
    McStea & Value v. Warren & Crawford.
    The defendants, successors of "Warren, Gilmore & Co., and agents of J". & 3T. Roberts, wbo are the drawers of a certain draft, accepted for accommodation by Warren, Gilmore & Co., offered to plaintiffs, indorsees thereof, to pay them within the time agreed upon, a certain stipulated amount for the extinguishment of the draft, which plaintiffs refused to take. RTo real tender or deposit was made.
    The defendants, as the agents of J". & 3?. Roberts, had a right to tender performance of the contract for said Roberts, and plaintiffs were bound to receive the money in discharge of the contract. The plaintiffs’ peremptory refusal dispensed with the actual production of th i money or the presence of witnesses as required by art. 407 of the Code of Practice, as no one is required to do a vain thing.
    Interest, therefore, could be allowed only from judicial demand.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Rlmore & King, for plaintiffs and appellees. T. 8. McOay and John M. Oooney, for defendants and appellants. Race, Roster & Merrick, for succession of Crawford.
   Ludeling, C. J.

The plaintiffs are indorsees of a draft for $939 68 drawn on the twentieth of March, 1362, by J. & E. Roberts of Mississippi, on their factors, Warren, Gil ni ore & Co., who accepted the draft. It was an accommodation acceptance. In May, 1866, the drawer paid $400 on the draft. On or about the day this partial payment was made, the plaintiffs agreed to take six hundred dollars for the balance of the note, provided that sum were paid on or before the first of January, 1870. The defendants, successors of Warren, Gilmore & Co., and agents of J. & E. Roberts, offered to pay the plaintiffs the amount stated within the time agreed upon — which they refused to take — -no real tender or deposit was made.

Warren & Crawford, as agents of J. & F. Roberts, had a right to tender performance of the contract for the Roberts, and McStea & Yalue were bound to receive the money in discharge of the contract of J. & F. Roberts. 14 La. 214; 3 La. 385.

This offer to discharge the obligation of the Messrs. Roberts, by the payment of $600, was peremptorily refused by the plaintiffs, and this refusal dispensed with the actual production of the money, in the presence of witnesses, as required by art. 407 of the Code of Practice, as no one is required to do a vain thing. 2 Pars, notes and bills, p. 623.

Interest, therefore, should have been allowed only from judicial demand. C. P. 415.

The evidence shows that the amount agreed to be taken in satisfaction of the note was six hundred dollars ; there is an error of fifty dollars therefore in the judgment.

It is therefore ordered and adjudged, that the judgment of the lower court be amended by reducing the amount thereof to six hundred dollars and by allowing interest only from judicial demand.

It is further ordered that the appellees pay costs of appeal.

Wyly, J.,

dissenting. This is a suit on a draft for $939 68, the defendants being the acceptors thereof. The plaintiffs can only recover $600, because it is proved that in May, 1866, when they received $400 on this claim from the drawers, they agreed to accept $600 more on first of January, 1867, in full discharge of the debt, and in due time the defendants, the acceptors, offered to pay the amount. The main controversy is, as to the time interest should be allowed, the plaintiffs claiming it from first of January, 1867, the defendants contending they should pay it only from judicial demand, to wit: second of July 1870.

This depends upon the question whether when the defendants offered to comply with the contract, they made a real tender of the six hundred dollars actually due to the plaintiffs.

Article 2167 of the Revised Code provides that when the creditor refuses to receive his payment, the debtor may make him a real tender.” * * * And article 2169 says the mode in which a tender must be made is pointed out in the Code of Practice.

Looking to the Code of Practice under the head of real tender, we find article 407, which provides that “ when the tender is for money due, it must be made to the creditor himself or at his usual or chosen domicile, by the debtor or by his agent, in the presense of two witnesses residing in the place, by tendering to such creditor the sum which is due to him, with the interest and such costs as he may have incurred, and exhibiting such sum to him in the presence of such witnesses, in the. current money of the United States.” And by article 415 it is provided that when such tender is proved at the trial, the plaintiff must pay the costs and can only recover the sum tendered, without interest.

In order to deprive the plaintiff of the interest under article 415, C. P., it devolved upon the defendants to comply strictly with the requirements of article 407, in regard to the mode of making a real tender.

The defendants, who made no tender conformably to article 407, C. P., can not be heard to claim of the plaintiffs the penalty prescribed by article 415 for refusing to accept the real tender.

It is not pretended that the defendants tendered to the plaintiffs the sum due to them and exhibited currency of the United States for the amount thereof in the presence of two witnesses.

They simply offered their check for the amount. The defendants, however, contend that as the plaintiffs said they would not accept payment of the debt from them, a tender was not necessary, and therefore, the penalty prescribed by article 415 must be imposed. I do not so understand the law. Article 415 requires proof that “the defendant has made a real tender, in the form above prescribed of the sum due,” ■*' * * and if such is proved, ‘ the plaintiff can only recover the amount tendered without interest. This article is penal in its character and the party seeking its benefit must comply strictly with the requirements of article 407. The articles referred to modify the general doctrine on the subject of tender, and therefore the authorities cited from the commercial law are not applicable.

In Bacon et al. vs. Smith et al., 2 An. 442, it was held that the mere announcement of the maker of a note of his readiness to pay, is not a legal tender and can not stop interest. In Mudd vs. Stille’s heirs, 6 La. 17, it is held that a real tender can not be made so as to stop interest, unless the legal formalities are strictly pursued. In the case at bar the formalities required by article 407 C. P., were not complied with— there was no real tender, and the penalty announced in article 415 C. P., ought not to be imposed. I therefore feel constrained to dissent in this case.


author: Wyly, J. Morgan, J.,

text:
    No. 3332.
    John P. Stagg v. F. Belden.
    The managers of defendant’s business, during bis absence, bad employed tbe plaintiff as clerk in bis store, at tbe rate of two thousand dollars per annum, to begin on tbe first day of March, 1870, with a proviso that, if bis services were not found satisfactory by defendant, tbe engagement would be .canceled on tbe first day of April, on paying to plaintiff one hundred and fifty dollars for bis services in March. This contract was to be ratified by defendant, then absent. He returned on tbe thirteenth of April, andón tbe twenty-fifth of tbe same month, be discharged tbe plaintiff, whose claim under tbe contract is tbe object of tbe present suit.

      IS tbe managers of defendant’s business bad no authority to employ plaintiff, their act should have been repudiated immediately. It was unfortunate for defendant, if his agents failed to give him correct information of the contract, but it was not plaintiff’s fault. Besides, when defendant returned to bis store on the thirteenth of April, and found tbe plaintiff employed as clerk, it was bis duty to inquire concerning the terms s upon which his agents had engaged bis services. Nothing of the kind, however, was done by him, until be coneludod to discharge plaintiff on the twenty-fifth of April. His silence from early in March till the twenty-fifth of April, must be regarded as a tacit acceptance of the employment of plaintiff.
    Appeal from the Sixth District Court, parish of Orleans. Gooley, J.

      Hays & Seto, James ’Singan, for plaintiff and appellee. G. A. JBrecmx, curator ad hoe, for defendant and appellant.
   Wyly, J.

The defendant discharged the plaintiff from his employment as clerk on the twenty-fifth April, 1870, and was sued by the latter for the year’s salary.

It appears that the'defendant is absent the greater part of the time from the State and that his store is managed by his clerk Eames, and his son W. Q. Belden, the bookkeeper. In February, 1870, Eames applied to plaintiff to employ him as clerk in the store of the defendant, proposing to hire him by the month at $150 per month; the proposition was declined, thé plaintiff desiring to be employed by the year at a salary of two thousand dollars. Eames then proposed to take the plaintiff on probation for sixty days. This was declined. It was finally agreed that the plaintiff should be employed on probation of thirty days at the salary demanded by him, services to begin on the first day of March. Before entering upon the services the plaintiff required the following written contract to be signed :

“New Orleans, March 1, 1870.

“ E. Belden, New Orleans :

“ Dear Sir — Your proposition, made to me by your son, Mr. W. C. Belden, to the effect that, from the first day of April, 1870, you would pay me, as a salesman and solicitor of trade for your business, the sum of two thousand dollars per annum, with a bonus of twelve hundred dollars, provided my individual sales amounted to sixty thousand dollars in twelve months, is hereby accepted.

“If, on the first day of April, you are not satisfied with the manner in which my services are rendered, this engagement will be annulled on your paying me one hundred and fifty dollars for services in March, 1870.

“ Yours respectfully,

(Signed) “JOHN P. STAGG.”

Across the face of this document is written :

“ This is accepted, subject to thé approval of E. Belden.

(Signed) “ W. C. BELDEN.”

This occurred during the absence of the defendant. He returned, however, on the thirteenth of April, 1870, and on the twenty-fifth of the same month he discharged the plaintiff. The defense is that, neither Eames nor W. ,0. Belden had authority to employ the plaintiff, and as soon as the defendant was informed that the plaintiff was employed under the written contract by the year, he repudiated the contract and discharged the plaintiff. If Eames and W. C. Belden had no authority to employ the plaintiff their act should have been repudiated immediately. This was not done. The defendant, however, contends that it was the duty of the plaintiff to have communicated to him the contract, and, if it was not repudiated earlier, it was the fault of the latter. The contract was known to Eames and W. C. Belden who were the managers of defendant’s store and his agents. It was their duty to advise him that they had employed the plaintiff. And the proof is that, soon after the contract was made, the defendant was so advised by Eames; but, in that correspondence, Eames stated that the plaintiff was employed at $150 per month and was liable to be discharged at any time at the option of the defendant. That the defendant’s agent failed to give him correct information in regard to the contract with plaintiff was unfortunate; it was not, however, the fault of the plaintiff.

But when the defendant returned to his store on the thirteenth of April, 1870, and found the plaintiff employed as a clerk, it was his duty to inquire the terms upon which he was employed. Nothing was said, however, upon the subject, until finding business growing dull and there being too many clerks, he concluded to discharge the plaintiff on the twenty-fifth of April, twelve days after his return. The defendant contends that as the contract was accepted subject to his approval, he is not bound thereby. ’ His silence from early in March till twenty-fifth April, must be regarded as a tacit acceptance of the employment of. the plaintiff, because the proof is, he acquiesced during this period, although advised early in. March of said, employment.

There is no doubt that the plaintiff accepted the situation subject to the approval of F. Belden, under the belief that his agents Eames and W. C. Belden would communicate to their principal the terms of the contract and that he would either ratify or reject it within the thirty days fixed as the period of probation. Any other construction of the contract would allow the defendant, through his agents, to perpetrate a fraud on the plaintiff; it would allow him to get the servicés of the plaintiff at a period when they were doubtless really needed, on terms more favorable to him than those consented to by the plaintiff. If the ■ view taken by the defendant be correct, he has been greatly benefited by the course pursued by Eames his agent, in giving incorrect information in regard to the contract by which the plaintiff was employed. By thus withholding from their principal the exact terms of the contract, Eames and W. C. Belden have succeeded in gaining for him the services of the plaintiff on a probation of nearly sixty days, notwithstanding his positive refusal to serve on a longer probation than thirty days.

If defendant’s theory be good he could have held the plaintiff as well, if his interest demanded it, on a probation of six or nine months. He could have stood by and gained the advantages of the plaintiff’s labor as long as his interest required it, knowing that his agents would withhold from him the terms of the contract so that he would not be compelled to ratify or reject it.

WeThink both the equity and the law of the case is with the plaintiff and the conclusion of the court below was correct.

Judgment affirmed.

Morgan, J.,

dissenting. In this case the contract, which was in writing, was made by the party holding defendant’s power of attorney, and was subiect to his (the defendant’s) ratification. This ratification was- never given. I therefore, think that the plaintiff has no case, and I dissent from the opinion of the majority.

Rehearing refused.