author: Rost, J.

text:
    Campbell v. Nicholson et al.
    An action for a balance due on a written contract between certain physicians, as proprietor* , of an infirmary, and a committee of an unincorporated association, by which the former undertook to “ receive in their infirmary and to furnish medical treatment and all necessary medicaments and nurses to all persons who may be sent to the infirmary by the association, for a certain sum each day, the arrangement to continue in force for three years,” is prescribed under arts. 3499,3503 of the Civil Code. Tile debt due under such a contract is not comprehended within the exception contained in the last clauses of arts. 3500, 3503 of the Code.
    APPEAL from the Fourth District Court'of New Orleans, Strawbridge, J. This is an action against Nicholson, Gardiner and Waters, on a written agreement signed by Gardiner, Nicholson, the plaintiff, and J. M. Mackie. By this contract Nicholson and Gardiner, describing themselves as “a committee appointed for that purpose by the New Orleans Samaritan Society,” engaged Campbell and Mackie, then proprietors of the Circus Street Infirmary, to receive such patients as might be sent to their infirmary by the society, and to treat them in that establishment,for a compensation fixed by the agreement. In a previous action on this contract it was determined, that the credit was not given by Campbell and Mackie to the persons who signed the contract individually, butto the members of the Samaritan Society, whoever they might be. See 12 Rob. p. 428. The present action was instituted, in consequence of thai decision, against Nicholson, Gardiner and Waters, as known members of the society. Their membership was admitted.. Waters pleaded his discharge ir bankruptcy. Nicholson,and Gardiner answered, denying all the allegations ii the petition. They averred that, if indebted at all to plaintiff, which thev deny, that they are only indebted to him $13 15 each, as members of the Sa maritan Society, which they allege to have been composed of a number o individuals, whose names are set forth. The sum of $13 15 is alleged to havi been deposited.in court; and they pray for dismissal of the suit with costs The plaintiff, in-a supplemental petition, prayed that the persons so named a members might be cited, and,.if it should be proved by the defendants that the were members of the Samaritan Society, that judgment might be rendere against them for their proportions of the debt sued for.

      Nicholson and Gardiner subsequently pleaded the prescriptions of one an three years. This exception was sustained, and the plaintiff appealed.

      Robinson, for the appellant.
    As to-the plea of prescription: It is contende that the claim is prescribed by arts. 3199, 3503 of the Civil Code. Art. 349 declares that “ the actions of innkeepers and such others, (in the' french trans lation '■celle des hoteliers, aubergistes et traiteurs’’), on account of lodging an board which they furnish, are prescribed by one year.”
    Art. 3503 is in these words: “ The action for arrearages of rent-charge, ai nuities and alimony, or for the hire of moveables or immovables; that fort! payment of money lent; for the salaries of overseers, clerks, secretaries at teachers of the sciences, for lessons by the year or quarter; that of pb; sicians, surgeons and apothecaries, for visits, operations and medicines; th of parish judges, sheriffs, clerks and attorneys, for their fees and emolumen are prescribed by three years, unless there be an account acknowledged, a note or bond given, or an action commenced before that tipie.” The french translation of this article is: “L’action en paiement des arrérages de rentes perpétuelles ou viagéres, etc.; celle des médecins, chirurgiens, apothécaires, pour leurs visites, opérations et médicaments, se prescrivent par trois ans, á moins qu’il n’y ait compte arrété, billet, obligation, ou demande intentée en justice avant ce terma.”
    The judge below erred in considering the plaintiff’s action prescribed, under these articles. It is only prescribed by ten years, under art. 3508. The claim of the proprietors of the Circus Street Infirmary, is certainly not that of innkeepers — hóteliers, aubergistes, ou t.raiteurs, in the sense of art. 3499: nor is it that of “ physicians, surgeons, or apothecaries, for visits, operations and medecines,” within the meaning of art. 3503, which relates to physicians and apothecaries bills, for services rendered or medicines furnished, in ordinary practice, attested by no written evidence. This article is limited, both by its spirit and letter, to accounts for visits and operations performed by physicians, or surgeons, or medicines furnished by apothecaries ; and relates evidently to such services as can only be legally rendered by licensed physicians or surgeons, or to such things as can only be sold by licensed apothecaries. But the contract sued on is one which might have .been entered into by any individual who happened to be the proprietor of an infirmary, employing at a salary the necessary physicians, &c. But assuming that articles 3499 and 3503, either or both, would apply tp the claim sued on under any circumstances, still the Code expressly declares that neither apply to an action on a written contract. Article 3500 provides that the prescription established by the preceding art. (3499) “ ceases from the time when there has been an account acknowledged, a note or bond, or a suit instituted” — in the french text, “lorsqu’il y a eu compte arrété, billet ou obligation, ou citation en justice..” Art. 3503 declares that the actions enumerated in it, “ are prescribed by three years, unless there be an account acknowledged, a note or bond given, or an action comme,nced before that time.” In the french text, “á moins qu’il n’y ait compte arrété, billet, obligation, ou demande intentée en justice avant ce terme.” The court of the first instance was of opinion that the “account acknowledged, note or bond”— “ compte arrété, billet ou obligation,” necessary to take the claim out of this prescription brevis termporis, must be “ a written acknowledgment after the debt becomes due — that a written contract before, can have no influence on it. This idea is unsupported either by the text of the Code, by reason, or authority. Pothier, Obligations, no. 711, in commenting on the prescriptions applicable to the claims of physicians, surgeons, &c., as established by the Ordinance of 1673, the language of which is identical with that of our Code, says: “Ces prescriptions de six mois etd’un an n'ont pas lieu, lorsque la créance est établie par quelque acte par écrit, soit par-devant notaire, soit sous signature privée; tels que sont une obligation du débiteur par acte par-devant notaire, ou une promesse sous signature privée, ou enfin un arrété de compte au bas d’un mémoire qui contient les fournitures, ou sur le journal d’un marchand, arrété et signé par le débiteur; c’est le sens de ces termes de l’article 9, du tit. 1, de l’Ordonnance de 1673: ‘ Voulons le contenu avoir lieu, si ce n’est qu’avant l’annéeetles six mois, il y eut un compte arrété, cédule, obligation ou contrat.’ En ce cas, la créance n’est sujette qu’a la prescription de trente ans.” Troplong, Prescription, vol. 2, no. 943, in commenting on arts. 2271, 2272 of the Code Napoléon, from which arts. 3499, 3503 of our Code have been taken, soys : “ Elies ont pour but d’éteindre des actions qui ne sont fondees sur aucum titre écrit. (Bourjon, t. 2, p. 577. Rubrique deia section 4.) On a pensé que lá oú les conventions étaient verbales, et oñ le paiement se faisait d’habitude do la mamá la main etsans retard, c’étaitse conformer á la marche ordinaire des choses que de supposer que l’obligation avait éte acquittée aprés un certain temps. On a done .admis une presomption de-paiement qui sort du droit com-mun.” Again, in commenting on the same article (no. 989), he says : “II suit de lá qu’aucune des prescriptions dont nous avons vu la nomenclature dans les articles 2271,2272, n’aurait lieu si les parties avaient traité par écrit. Car la présomption de paiement surlaquelle elles reposent n’est admissible qu’autant que l’action personnelle qu’elles tendent á combattre, n’est fondée sur au cun titre. (Bourjon, t. 2, 410).” The prescriptions established by arts. 2271, 2272 of the Code Napoléon, says Duranton, vol. 21, no. 402, “ sont spécialement fondée» •sur la presomption de paiement, presomption qui résulte dja besoin ordinairement pressant que les créanciers de cette classe ont d’etre promptement payés, de l’habitude dnnslaquelle on est d’acquitter ces dettes sans un long retard, et méme sans exiger de quittance, &c. ‘ Sunt introducto,’ dit Dumoulin dans son traité De Usuris,1 in favorem debitorum qui sine instrumento et testibus, ut lit, solverunt, et priecipue heredum eorum.’ ”

      H. D. Ogden, for the defendants.
    The principle established by Troplong, in no. 989, is based on article 2274 of the Code Napoléon, which is the same as article 3500 of our Code. Article 3500 does not apply to article 3503, for it expressly says, “ in the cases mentioned in the preceding articleand, therefore, cannot be made to embrace the subsequent articles.
    Admitting, for the sake of argument, that the authority cited is applicable to article 3499, how can it be ascertained what portion of the amount to be paid for each and every patient per diem, is due for board and lodging 1 But the words, “si les parties avaieut traité par écrit” mean, if the parties had made a written contract, full, explicit, and which could, of itself, have made proof of the debt, as if, for instance, the contract sued on was, to receive a given number of patients for a given time No. 989 cannot be made to extend to the present case, where the proof of the claim must unavoidably rest on parol evidence.
    The action of physicians, surgeons, and apothecaries, for visits, operations, and medicines, is prescribed by three years. C. C, 3503

      A. N. Ogden, on the same side.
   The judgment of the court was pronounced by

Rost, J.

This is an action against the defendants as members of the New Orleans Samaritan Society, for a balance of account due the plaintiff by the society, before its dissolution. The defendants, Nicholson and Gardiner, acting as a committee appointed for that purpose by the society, entered into an agreement in writing with Drs. Mackie and Campbell, then proprietors of an infirmary, by which the latter were to receive such patients as might be sent to them by the society, to board them, furnish them with medicines, and also medical and other attendance, for a compensation fixed by the agreement. The society sent a large number of sick to the infirmary, and subsequently dissolved itself, without paying the debt thus incurred. In an action against the members of the committee personally, the late Supreme Court held that the credit was not given to the persons who signed the contract, but to the members of the society, whoever they might be. 12 Rob. p. 28. The present action was instituted in consequence of that decision. The defendants pleaded the prescription of one year for the board, and that of three years for the medical services and the medicines furnished, under arts. 3499 and 3508 of the Civil Code. This exception having been sustained, the plaintiff appealed. It is proper to state that the plaintiff is now subrogated to the right of Dr. Mackie, under the contract.

The counsel for the appellant contends that, as the advances were made and the services rendered by his client under a previous written contract, the prescriptions pleaded do not affect his claim, and that he is clearly within the .exception in the french text of arts. 3500 and 3503 of the Civil Code — “ á moins qu’il n’y ait compte arrété, billet, obligation, ou demande intentée en justice, avant ce terme.” He has referred us to a french ordinance passed in the year 1673, making analogous dispositions, to arts. 2271, 2272 of the Napoléon Code, taken from that ordinance, and also to several french commentators who are of ¡opinion that this class of prescriptions does not attach when the claim is based on a written title, either public or private. Pothier, Oblig. no. 711. Troplong, Prese, vol. 2, nos. 943, 989.

The argument assumes that the language of the french ordinance is identical with that of our Code, and in this lies the error. The words of the ordinance are; “ 7oulons le contenu ayoir lieu, si ce n’est qu’avant Humeo et les six mois, il y eut un compte arrété, ccdule, obligation ou contrat.” Cétlule, in the jurisprudence of France, is the technical name of an act under private signature. Obligation, when opposed to ccdule, means, in that jurisprudence, a notarial act. After these two words, the word contrat was surplusage, and was, on that account, omitted in the art. of the Nap. Code, which retained the words cédule and obligation without any change of meaning. There can be no difference of opinion as to the correctness of the views entertained by the french Gommentators on the text of their law. Rogron, Code Civil Expliqué, art. 2274 notes.

It may be that our law-givers imitated the french ordinance, but they surely did not copy it. The Code of 1808, page 488, art. 77, provided that those prescriptions should apply, “unless a settlement'has taken place, anote given, or an action be pending before a court of justice thus manifestly changing the meaning of the word obligation in the french ordinance, from a notarial contract to a promissory note. It has been the unanimous opinion of the bench and the bar that these prescriptions attached in ail cases, unless there had been an account acknowledged, a note given for the amount due, or a suit instituted to recover it. and the article cited will bear no other interpretation. In the case of Depas v. Riez, 2 Annual, p. 30, we had occasion to notice a similar change in the legal meaning of words, made by our Code, in the definition of donations mortis causa.

The only alteration made in the article of the Code of 1808 by that of 1825, consists in the insertion of the words “or bond" after the word “note," so as toread: “it only ceases from the time when there has been an account acknowledged, a note or bond, or a suit instituted.” The plaintiff can derive no benefit from this alteration: and the fact that these short prescriptions are extended by the new Code to loans of money and to all claims payable by the year, or at shorter regular periods, except interest, whether those claims rest or not on written contracts, is utterly inconsistent with the reasons given by the french commentators, in support of the distinction contended for. A note given for money lent, comes within the exception in the rule, and is subject only to the prescription provided for that class of instruments. But a written agreement for a loan of money, entered into before the loan was actually made, would not, as the plaintiff’s counsel supposes, arrest the prescription of three years.

On the other ground taken by the appellant, that arts. 3499 and 3503 are not applicable to him, the judgment is clearly right. Those articles embrace all persons within their categories, who make it a business to give their labor, their art, or their supplies, for an adequate compensation, and with a view to profit.

We have reluctantly come to the conclusion that the judgment should be affirmed. The defendants have availed themselves of the indulgence of the plaintiff to defeat his just rights, thus leaving him the only real, though unwilling, Samaritan.

We cannot refrain from saying that, although the defendants are legally released, there is, in our opinion, a strong moral obligation to seek out the solvent members of the association, and raise a contribution for the payment of the plaintiff’s claim. Judgment affirmed.


source: Caselaw Access Project

author: King, J. King,.J.

license: Public Domain

text:
    Lee et al. v. Bullard et al.
    One in the employment of a merchant, whose compensation depends on the profits of tha 'business, and who, if nothing is made, is to receive nothing, and who is shown on several occasions, to have held himself out as a partner, will be responsible as such to third persons, though, as between themselves, the parties neverintended to create a partnership.
    Partners have a community of interest in every part as well as in the whole of the partnership effects; and, therefore, a sheriff can only make an effectual seizure of the undivided interest of a partner, and preserve it to abide the result of the suit, by taking actual possession of the entire property attached.
    Merchandize sold on accredit, for the price of which the notes of the purchaser had been received, or contracted to he sold for .cash, where the price had not been actually paid, while still in the possession of the vendors, is liable to attachment for these debts. C. C. 1917.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Halsey and Hoffman, for the plaintiffs.

      Bonford, for the appellants.
   'The opinion of tbe court was pronounced by

King, J.

The plaintiffs instituted this suit on two promissory notes, of which C. IC. Bullard was the maker. They alleged that C. A. Bullard was a partner of the firm of C. IC Bullard, that the notes were given for the business of the partnership, and prayed for a judgment, in solido, against both of the defendants. In a supplemental petition the plaintiffs alleged that the defendants were about to leave tbe State permanently, and on that ground obtained an attachment, which was executed by the seizure of a stock of merchandize and other effects in the possession of C. A. Bullard Sf Co., which firm was composed.of C. A. Bullard and F. M. Granger. C. A. Bullard, in aseparate answer, denied that he was ever a partner of C. IC. Bullard, or indebted to the plaintiffs. The firm of C. A. Bullard 4' Co. intervened in this suit, and alleged that they were the owners of the greater part of the merchandize •attached, which they prayed should be restored to them. To this intervention the plaintiffs answered that, the intervenors held the property attached under a transfer from C. K. Bullard, which was fraudulent and simulated, and intended to protect the property of C. K. Bullard from the pursuit of his creditors. R. Williams and J. McFall also intervened, claiming each a part of th* merchandise attached, alleging that they had purchased the goods by them claimed prior to the sheriff’s levy. C. B. Bullard likewise intervened, and prayed for .a judgment, with a privilege, for a sum alleged to be due for his salary, as clerk of C. A. Bullard 4* Co. There were other interventions to which it is unnecessary to refer, as no questions in relation to them arise. The judge below held C. A• Bullard to be liable to the plaintiffs asa partner of C. IC. Bullard, and rendered a judgment against those parties, in solido, for the amount of the notes. He decreed the sale from C. IC. Bullard to C. A. Bullard S¡- Co. to be valid, and maintained the attachment as to C. A. Bullard, but dissolved it as far as it affected the interest of F. M. Granger in the merchandize seized. The interventions of Williams and McFall were dismissed, and a sum of $90 decreed to C. B. Bullard with a privilege. From this judgment C. A. Bullard 4- Co., Williams and McFall and C. B. Bullard have appealed.

We think that the district judge did not err in determining C. A. Bullard ¡to be liable as a partner of C. IC. Bullard. At the date of the notes he was in the employment of C. K. Bullard, with no fixed salary. His compensation depended on the profits; if none were made, he was to receive nothing. Besides this, participation in the nett profits on several occasions, he held himself out as a partner, and thus clearly rendered himself liable'.- Story on Partnership. The evidence, however, satisfies our minds",'that C. A. Bullard owned no part of the stock in trade of the firm of C. K. Bullard, and had no interest whatever therein, further than to receive a part of the profits realized, as a com. pensation for his services. As between themselves, we think that the parties intended to create no partnership. The transfer, therefore, from C. K. to C. A. Bullard Sf Co., must be considered as though- it had been made to entire strangers. The evidence, in our opinion, establishes the reality and good faith of the sale. That sale was made prior to the commencement of these proceedings. C. K. Bullard had, therefore, previous to the attachment, been divested of his ownership, and had no attachable interest in the merchandize. But the share of C. A. Bullard in this property, which belonged to a firm of which he was a partner, was subject to seizure in satisfaction of his separate' debt due to the plaintiffs. It is now urged that only the interest of C. A. Bullard in the firm of which he was a member was subject to- attachment, and not the property of the firm.

We understand the judgment of the CoUrf below only fo maintain the attachment for the share of C. A. Bullard. No more could have been legally attached or sold. But the parties have a community of interest in every part, as well as in the whole, of the partnership effects. The sheriff, therefore, can only make an effectual seizure of the undivided interest of a partner; and preserve it to abide the result of the suit, by taking actual possession, as was done in the present instance, of the entire property attached, which he holds jointly with the other partners. C. C. aft. 2394. 4' Mart. N. S. 185. Story on Partnership, no. 261, et seq.

The interventions of Williams and of McFall were correctly dismissed. The evidence shows that the articles claimed by them had not been delivered, at the date of the seizure, and while they continued in the possession of the vendors they were subjectto attachment for the debts of the latter. C. C. art. 1917.

The evidence fully sustains the judgment of the district judge in relation So-the' claims of C, A. Bullard.

Same Case — ON a Re-hearing.

THE judgment of the court was pronounced by

King,.J.

The principal question at issue in this cause is the' reality of and good faith of a sale of a quantity of merchandize, which sale the plaintiffs allege to be fraudulent. ,Our first examination brought us to the conclusion that the judgment of the inferior court was supported by the law and the evidence. Involving, as the cause does, a question of fraud in a commercial transaction, the proof of which, if it exists, depends upon numerous facts disclosed by witnesses, we have, upon further consideration, thought that the most appropriate forum for the trial of the issues presented would be a jury of merchants ; arid that the ends of justice would be best promoted by remanding the cause for the purpose of enabling the parties, if so disposed, to submit it to a jury thus composed.

It is, therefore, ordered that, the judgment of the District Court be reversed; and that the cause be remanded for a new trial, the appellees paying the costs of this appeal.

       The goods sold to Williams were on a credit, and his note received for the price; those to McFall were to have been paid for in cash, but no payment had been made at the date of the attachment, 3L


author: Slidell, J.

text:
    Stewart v. Sowles et al.
    Though a written contract may be necessary to establish a partnership in the ownership o£ slaves as between the partners themselves (C. C. 2807), parol evidence will be admissible in favor of a third person charging a partnership interest, and a fraud committed by one of the partners for the benefit of his associates.
    A purchaser who sues to rescind the sale of a slave on the ground of fraud, will not be estop, ped by the written act of sale made in the name of one party alone, from showing the in. terest of other parties.
    The Code having provided (arts. 3523, 3524) that, where the seller knows of the vice of the thing sold and omits to declare it, an action of redhibition may be commenced at any time, provided a year have not elapsed since the discovery of the vice, and that the discovery is not to be presumed but must be proved by the seller, an allegation by a plaintiff in a redhibitory action instituted on the 30th of March, that the slave ran away from him on the 10th of March of the preceding year, will not relieve the defendant from the ncessity of proving the time of the discovery of the vice. The fact that the slave runaway on the day mentioned in the petition, does not necessarily involve the knowledge of the pre-existence of the vice, which forms the basis of the action. C. C. 2505.
    In an action against a vendor to rescind the sale of a slave on account of the vice of running away, and for damages, though it be proved that defendant knew of the redhibitory vice and omitted to declare it, plaintiff can only recover such damages as would, at the time of defendants’ refusal to restore the price, have indemnified him, that is, the price with interest, the expense of advertizing the elopement and the costs of the act of sale; he cannot recover fees paid to counsel for instituting the redhibitory action. The expenditure for fees of counsel was the .result of the refusal to restore the price. It was not such an immediate and direct consequence of the breach of the contract, as is contemplated by arts. 2525, 1928 of the Code.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Bradford, for the plaintiff.

      Preston, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

This suit was instituted to recover from the defendants the price of a slave, purchased under full warranties, by the plaintiff from Glasgow, in January, 1845, and who ran away on the 16th March, 1845. The petition charges that the defendants combined with Glasgow, for the purpose of deceiving and defrauding the purahaser; that they knew the slave was an habitual runaway, and deceived 'the plaintiff by false representations as to his place of birth and former ownership; that the sale, though made in the name of Glasgow, was made by the procurement, and for the account of the defendants ; that they are bound by the representations and warranties contained in the act, and responsible for the price and damages. The district judge was of opinion that the allegations of the plaintiff were sustained by the evidence, and in that opinion we concur. Our attention will, therefore, only be addressed to the questions of law presented in the argument of the defendants’ counsel,

The defendants objected to parol evidence to prove the existence of a partnership interest in Soioles and Hite with Glasgow, upon the ground that a partnership in slaves must be constituted in writing, under the 2807th article of the Code, However necessary a written contract might be_to establish such a partnership as to the partners inter se, we are of opinion that parol evidence was admissible in favor of a third person, charging a partnership interest and a fraud committed by one o'f the partners, by the procurement, and for the benefit, of his associates; an'd for the same reason we are of opinion that, the plaintiff was not estopped from showing the interest of Sowles and Hite, by the deed of sale in which she contracted with Glasgow alone, the party put forward by the defendants for the accomplishment of the fraudulent purpose.

It is contended that the action is barred by prescription. The slave ran-away on the 10th March, 1845. On the 23d April, 1845, an action was brought against Glasgow, upon which judgment was rendered. During the prosecucution of that action the plaintiff discovered the connection of the present defendants with the matter, and brought the present suit, on the 30 March, 1846. Citation was served on the 1st April, 1846. In ordinary casos the redhibitory action must be brought within a year from the date of sale. C. C. 2512. The same article, however, declares that, this limitation does not apply where the seller had knowledge of the vice, and neglected to declare it to the purchaser. Article 2Í523 defines the extent of the liability of the seller, who knows the vice of the thing he sells, and omits to declare it; and the succeeding article declares that: “ In this case the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. This discovery is not to be presumed ; it must be proved by the seller.” The burden being thus thrown upon the seller to prove the discovery, the defendants contend that the proof was furnished by the plaintiff himself, by the allegation of her petition. The allegation was that, the slave ranaway “on or about the 16th March, 1845.” But the knowledge on the 16th March, 1845, of the fact that the slave ranaway on that day, does not necessarily involve the knowledge of the preexistence of the vice which is the'basis of this action. To maintain the action of redhibition, the vice of which the purchaser complains must have existed before the sale. One of the vices which authorize tho action in the case of slaves is, “the habit of running away,” That a slave runs away to-day is not proof that he was formerly in the habit of running away. Reason would reject such a conclusion as inconsequent. The language of the Code is also opposed to it. Article 2505, indicates what shall be deemed sufficient evidence that a slave has the habit of running away: “ The slave shall be considered as being in the habit of running away, when he shall have absented himself from his masters’ house twice for several days, or once for more than a month.” If the plaintiff in a redhibitory action should prove merely that, the slave he purchased ranaway once from his former master and was absent less than a month, he would not recover. A fortiori then, it would be improper to hold that the elopement of the slave in question from his mistress for the first time, at least until his absence had- Continued for a month, should affect her with the presumed knowledge of the pre-existence of the habit of running away. But, as we have already seen, the terms'of the law are stringent; the injured vendee is carefully protected. The discovery is not to be presumed ; it must be proved by the seller. He has failed to establish the discovery of the vice a year before suit was brought, and tho plea of proscription was, therefoe, properly disregarded.

. The judgment of the court below included as damages a sum of $100, fees paid by the plaintiff to her counsel in the present case and in the suit against Glasgow. It is said in support of the judgment that, article 2523 declares that the seller who knows the vice of the thing sold and omits to declare it, is answerable to the buyer in damages, besides the restitution of the price and re- j payment of the expenses. And the french text of this article is referred to as enunciating in very strong terms the extent of responsibibity, “ est tenu, outre la restitution du prix et le rembursement des frais, de tons dammages et interests euvers l’acheteur.”

It cannot be supposed that the mere omission of the seller to declare a vice known to him, was intended by the Code to impose a more onerous responsibility than a fraudulent declaration made by the seller that the thing sold possesses some quality which he knows it does not possess. But in the latter case ar.icle 2525, refers us to the rules laid down under the title of “ conventional obligations.” Recurring to that portion of the Code we find it declared that: 11 when the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but, even where there is fraud, the damages cannot exceed this. C. C. 1928'.

Although the law' intends to punish the fraudulent vendor, it has nevertheless fixed limits to the punishment, and has been unwilling to confide to courts or juries an uncontrolled discretion, which might be exercised in a spirit of vengeance, and run into oppression and injustice. Remote damages are, therefore, excluded, and the indemnity must- be restricted to such as are by reasonable intendment the immediate and direct consequence of the fraud.

It is true the counsel fees would' not have been expended by the plaintiff, if this purchase had not been made; but the proximate cause of their expenditure was the refusal of the defendants to restore the price. Until the refusal, no counsel-fees had been expended,, nor were necessary. The plaintiff, upon his own showing, would have been indemnified up to the institution by suit against Glasgow, by the restoration of the price without interest, the expenses incurred in advertizing the elopement, and the costs of the notarial act of sale.

It is, therefore, decreed that the judgment-of the court below be reduced from the sum of $762 85, to the sum of $664 85, and that so reduced it be affirmed ; the plaintiff paying the costs of. this appeah


author: King, I.

text:
    Judson v. Connolly et al.
    An affidavit for an injunction, in these words: “ M. J. (the petitioner), being dnly sWorn deposes, that facts stated in the foregoing petition are true to the best of his knowledg a and belief,” is insufficient for uncertainty. C. P-. 304. The party will not be permitted to , amend by inserting the article the before facts, the sense being complete without it, ¶ where nothing shows the omission to have been one oí inadvertence, nor that the party in. 1 tended to swear to all the facts stated in his petition, nor to any specific fact; J
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. ?

      Hoffman and Halsey, for the appellant.

      Moselius and Schmidt, for the ¡ defendants.
   The judgment of the court was pronounced-by

King, I.

The plaintiff alleges that he is a creditor of the succession of Felix Connolly, for a large sum, as the assignee'of certain judgments; that the deceased left property of which the defendants, Bridget and Sarah Connolly, claim to be the owners; that Bridget-Connolly, has caused a part of the property to be seized under a judgment against Sarah Connolly, and is about to cause it to be sold; and that.he apprehends that the defendants will dispose of the remaining property belonging to the succession, which they claim to own. He prays that the property be decreed to belong to the succession of the deceased, and subjected to the payment of its debts; and that the defendants be enjoiued from selling any part of it, during the pendency of his suit.

A motion was made to dissolve the injunction, on the ground that the oath of the plaintiff was insufficient. The motion prevailed, and the plaintiff has appealed.

The oath of the plaintiff is as follows: “ Mills Judson, being duly sworn, deposes, that facts stated in the foregoing petition -are true to the best of hi* knowledge and belief.”

The judge, in our opinion, correctly concluded, that this oath, by reason of its uncertainty, Was insufficient to authorize the injunction, and that he was not permitted to supply the'definite article “the” before the word facts, the sense of the sentence being complete without the addition. Nothing shows the omission to have been one of inadvertence, nor that the plaintiff intended to swear to all the facts stated in his petition, which are very numerous, or to any specific facts upon which he relied to maintain an .injunction. C.P. art. 304.

Judgment affirmed.


author: King, J.

text:
    Ex parte Louis.
    A )tatii-liber may sue for his liberty, unaided by a curator or other person. The appointment of a curator to a statu-liber is only necessary to preserve or administer property, givon or B devised to him after 'he has acquired the right to freedom at a future-time. C. C. Í93.
    APPEAL from the First District Court-of New Orleans, McHenry, J. J.

      M. Wolfe, for the appellant.

      Biron, contrá.
   The judgment of the court Was pronounced by

King, J.

Antoine Gin'eral, by his last will, directed his slave Louis tobo liberated at the age of twenty-one years. Until that age he was left under the care of his executor, David Cousin, with an injunction upon the latter to cause the slave to be taught a trade. Louis lately presented a petition to the District Court representing, that the period for his emancipation had arrived ; that he was entitled to wages for the time that he remained in the service of Cousin, and to damages for ill treatment; and prayed for .the appointment of a curator to take charge of his person and administer his property. An order was granted for the appointment-of a curator, in conformity with this prayer. Cousin subsequently took a rule to show cause why tlje order should not be set aside. The rule was made absolute, and the plaintiff has appealed.

No appointment of a curator was necessary to enable the plaintiff to maintain an action for his liberty. The statu-liher is authorized to appear in court tmaided, for that purpose. The law only contemplates the appointment of a curator to the stalu-liber, for the purpose of preserving and administering property given, or devised, *to him, after he has acquired the future right to his ' freedom. C. C. art. 193. It is neither alleged nor shewn that the petitioner has received a donation or bequest, and, we think, that the judge did not ppr in rescinding the order. The question in relatipn to the petitioner’s right either to ^ the damages or wages claimed, although discussed at bar, does not properly .1 arise in the present litigation. It is understood to be at issue in another action i now pending between the parties, and an expression of opinion in relation t.o it, j at this time, would be premature, as we deem i.t unnecessary to the decision of 1 the isolated question presented. Judgment qffinn,ed. jg


text:
    Ward et al. v. Warfield et al.
    The obligation of an agent, whose authority is-limited by instructions, is, to adlicrp faithfully to those instructions. If he unnecessarily exceed his .commission, or risk the effects of his principal without authority, he renders himself responsible to the latter for the consequences of his act. If loss ensue it is no defence that he intended the benefit oí his prin. cipal. But subsequent assent, as between principal and agent, is equivalent to a previous authority; hence where an agent has committed a breach of orders, and the principal» with iujll knowledge of all the circumstances, adopts his acts, even for a moment, he will he bound by them, ai?d the agent discharged. .&uch assent need not be express; it may be inferred from the conduct of the principal.
    Where a principal has employed afactor either to buy or to sell, and the factor, acting in good faith, has departed from his instructions, and has so informed his principal, the latter will bo hound to notify the agent of his repudiation of the act, witlnn a reasonable time after being informed of it, or he will be presumed to have adopted the transaction, and the loss, if any, will falj.him.
    Where a factor, to whom cotton had been consigned for sale in the city in which he resided, in consequence of low prices, ships it to a foreign market, and notifies his principal of the fact and of his motive for dojng so/offering to him the alternative of taking the cotton at a valuation placed on j.t before shipping, or the chances of the foreign market; and the latter, instead of replying at once, postponed his answer for several days, until, after the receipt of foreign news, he had ascertained that the shipment would prove unprofitable, when he notified the factor of his intention to take the price of the home valuation, the principal will be held to have assented to the shipment, and the loss will fall upon him.
    APPEAL from the Fourth District Court of New Orleans, Sirawbridge, J* The facts of this case are stated at length in the opinion delivered by Slidell, J. infra. The judge of the District Court rendered a judgment in favor of the plaintiffs against T. B. Warfield for the sum of $2643 33, with Interest at five per .cent a year, from 12 March, 1844, till paid* and costs ; and in favor of Curneal for $159 21, with interests five per cent, from 30 April, . 1844, with costs. The reasons for this judgment are stated by him, .as follows;
    “This case involves the application of a well settled principle .of agency, which is simply this; That the acts of one or the other party, when disclosed to his correlatiye, should by promptly avowed or disowned. For authorities, in .addition to those quoted from Story’s treatise on Agency, I refer to 3 Pit. Hep. 69. 1 Brock. Kep. 86. It has often been recognized in our State decisions. .See 4 La. 542. 11 La. 288. 16 La. 51, 471. 18 La. 18. And it is rocog- , niz&d in íh.e textual provisions of on?: C.ode. Arts. 1811, 2958,

      “ That the act of shipping the cotton was unauthorized, there is no doubt; and there is as little, that defendants were not bound to accept either alternative proposed to them; but their defence is not placed on this ground, as they insist that they did elect to take the valuation made. The cotton was shipped on the 7th March, the.account made up on tho 12th, advice of the whole forwarded on the 27th, and it is admitted to have been received at Bachelor’s Bend, Mis* sissippi, on or before the 5th of April by T. B. Warfield, the acting partner. The answer, electing the valuation, was not made until the 9th of May, and is dated at Cincinnati. Was this done within a reasonable time 1 I am of opinion that it was not. No explanation of their silence is offered, and, in the meantime, the price of cotton had materially declined. In the meantime a correspondence had taken place between plaintiffs and Carneal, one of the partners. He received information of what had been done, before the 23d of April, but did not make his election until the -30th, and then under very suspicious circumstances, it being in proof that news from England, by the Acadia, showing a still greater decline, was received in Cincinnati on the 291 h. But the account-current furniáhed by plaintiff shows that, at a date not precisely fixed,” but evidently made in a different writing, and after the account had been closed on June 1st, his balance of §1640 46 was carried to'his private account, apparently in pursuance of his letter of May 30th. This is, I think, a severance of the joint interest, and an acquiescence in his choice to take the valuation.”
    On a rule to show cause why a new trial should not be granted, the district judge assigned the following reasons for refusing it:
    “ The motion for a new trial is urged on the ground that plaintiffs themselves ' committed the first wrong, in omitting to inform defendants of their proceedings, from 7 March until the 27th, and, therefore, cannot complain of the defendants for taking a like liberty. This matter was urged on the trial, and I gave it full attention, but I did not notice it in the reasons for judgment as it appeared to bo accounted for by the testimony of the plaintiffs’ clerk, who deposed that during this time the regular packets had ceased running. The statement struck me as extraordinary, but when the evidence was closed and no proof offered by the adverse party, I did not feel at liberty, on my own knowledge that boats are departing for the .cotton-shipping ports almost daily during a great portion of the year, to assume the fact, during those particular twenty days, in contradiction of the statement under oath of a credible witness. It was a matter .of fact, and it was open to defendants to have shown the contrary. Had such neglect been clearly made out, I should not have deduced the consequences from it which the defendants do. ' ,

    “ No doubt tb.e plaintiffs were in duty bound to give prompt information oí their doing's, and the consequence would be, if they did not do so, a liability for all damage their principals might sustain, but not an exemption of the defendants from all their duties or responsibilities, still less a compensation of the damage one sustained by that sustained by the opposite party, without regard to amount. Ward Sf Co. were, in this instance, the party exposed to loss by delay. Had the cotton market fallen fifty per cent, or risen as much, defendants had the right to profit by the change, to throw the loss on plaintiffs, or take the profits to themselves. But did it give to defendants the right, on their part, to hold a proposition in suspense until the full event was developed ? I think it did not. When defendants received the letter of the 27th they might have replied : we disavow your act, and have nothing to do with your alternative; or as I have said, have availed themselyes of the change in the market. But had they returned for answer: we shall await the state of the market until the 9th of May* an(3 then decide. Yet this, in effect, is the course I am urged to sanction.”
    The plaintiffs, as well as T. B. Warfield, one of the defendants, appealed from this judgment.

      Prentiss and Finney, for the plaintiffs,
    cited 3 Cowen, 281. 4 Mason, 296-10 Pick. 326. 6 Wend. 103. 3 Peters, 69.

      Josephs and W. Christy, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs are cotton factors in New Orleans, and the defendants are owners of a plantation in Mississippi, which appears to have been under the superintendence of T. B. Warfield. Carneal, one of the owners, resided at Cincinnati. The style of the planting partnership was, Warfield &¡• Co.

The object of this action is to hold the defendants for a loss upon a shipment of cotton to Liverpool. The cotton was shipped by the defendants to the plaintiffs, with whom they were in account, for sale. Instead .of selling at New Orleans they shipped it to Caslellain Co. of Liverpool, obtaining an advance from the New Orleans agents of that house for the full market value at New Orleans, the nett proceeds of which advance, after deducting shipping charges, commission for advances, &e., were passed to the credit of the defendants.

The shipment to Liverpool was made on the 7th March, 1844; and on the 27th March, the plaintiffs addressed to Warfield Sp Co., at the plantation, the following letter-:

“New Orleans, 27th March, 1844.

“ Messrs. Warfield & Co. — Dear Sirs; We held your cotton until the 7th instant, when we concluded it would be better to ship it to Liverpool, than to sell it here. The market was continually going down, and the heavy and increasing stocks her.e and in New York, and at all the other ports in the United States, forbid the hope of any advance, at least for months to come. Moreover, the speculation having ceased, the value of cotton here must be regulated by the Liverpool prices. We have no doubt your interest will be promoted by the shipment. We had the cotton valued by one of our best brokers, and, if you prefer not risking the shipment, we will pay you the valuation prices. We do not wish, however, to do so, as we have bought no cotton, and are averse to doing so. That we were right in making the shipment is proven by the fact that, all the lower qualities of cotton can be bought fully half a cent lower thau the valuation put on yours. The shipment will reach Liverpool at a favorable moment, and when the stocks will be extremely low in that market, and we hope for a good return from the consignment.

“We obtained an advance to the full valuation of the cotton, with which you are credited; the advance amounted to $15,635 35. 364 bales Highlands mark, weighing 166,003 lbs. ; 71 bales Oak Place, 31,981 lbs.

“ Weacted for you in this matter as we would have done for ourselves. The only regret we have on the subject is, that we did not sell in December, when prices were higher, or that we did not ship earlier.

“ No one, however, believed in the rapid decline of cotton, nor could any reflecting person have supposed, considering the weather we had in November, December, and January, the crops would turn out so large. Independent of the heavy bales, the crop.,will be beyond all expectation ; already over 1,500,000 bales have been received, and there is yet to come to this port alone over 1.00,000 more.

-“ Ah have been deceived in regard to pri.ces, and none more than you. We trust, however, the measure' adopted by us may bring the'proceeds of your crop up to expectation. We send you a price current ofthe day, referring to which,

We are, very truly, yours,

Ward, Jonas & Co.”

On the 12th April, 1844, a letter of similar import was addressed to Corneal, at Cincinnati. It is admitted that the letter to Warfield Sf Co. was received by T. B. Warfield before the 5 April, 1844, and that to Carnead was received by him before the 23 April, 1844. The replies made by them were as follows ;

“ Cincinnati, April 30th, 1844.

Gentlemen: In your favor of the 12th instant, you say ‘ our market continued to go down so rapidly with no great hope of improvement, that we concluded to ship your crop to Liverpool, on the 7th of March. We had it valued by one of our best brokers. Although "we are averse to owning any cotton, yet as we had not time to consult you, we give you the option of taking the valuation, or letting the shipment go on your own account.’ So far as I have interest in the crop, which you know is one-third, I take the valuation of the broker. The Warfields, owning, the other. two-thirds, must decide for themselves. . - Very truly, yours.

T. D. Carneal.

(Addressed) Messrs. Ward, Jonas & Co., New Orleans.”

“ Cincinnati, May 9th, 1844.

Messrs. Ward, Jonas & Co., New Orleans.. — Gentlemen : We have determined to take for our crop the broker’s valuation, as furnished T. D. Carneal, and yield to you the advantages of the shipment to Liverpool.

Thos. B. & W. J. Warfield, by Thos-. B. Warfield.

It appears that, on the 28th April, the news per European steamer was received at Cincinnati, announcing a serious decline of cotton in Liverpool, and was published at large in the Cincinnati newspapers on the 29th.

It is assumed in argnment by the defendants, and, we think, properly, that the original agency of the plaintiffs was limited to the sale of the consigned property in New Orleans.

The principle is well settled that the obligation of an agent, whose authority is limited by instructions, is, to adhere faithfully to those instructions. If he unnecessarily exceed his commission, or risk his principal's effects without authority, he renders himself responsible to the principal for the consequences of his act. If loss ensue, it furnishes no defence to him that he intended the benefit of his-principal. But while this general doctrine may be considered as unquestionable, there are other principles which are equally well settled in the law of agency. Subsequent assent, as between principal and agent, is equivalent to a previous authority; and hence where an agent has committed a breach of orders, and the principal, with full knowledge of all the consequences, adopts his acts, even fora moment, he will be bound by them, and the agent will be discharged. Ñor it is necessary that such assent should be express, it may be inferred from the conduct of the principal. Hence the rule, so frequently acted upon by courts of justice, that is to be found embodied in all modern treatises, that, when the principal has employed his factor, either to buy or to sell, and the factor, acting.in good faith, has departed from the instructions, and has so informed his principal, the principal is bound to notify his rejection within a reasonable time after intelligence received, otherwise, he will be presumed to have adopted the transaction, and the loss, if any, will fall on him.

Avery pertinent illustration of this rule is found in the case of Prince v. Clark, 1 Barnwall and Cresswell, 186. Prince shipped goods on board of an Indiaman, at London, bound to Calcutta, of whieh Clark was the captain, and Coffin the purser. He consigned the goods to them, and directed them to invest the proceeds in certain specified articles, or in bills at the exchange of the day. They sold the goods at Calcutta and invested the proceeds in sugar, which was not one of the articles specified in the instructions, and informed their principal of the purchase by a letter, which he received on the 29th May. They alleged the rate of exchange, as the reason of deviating from Ms instructions. They had no commercial establishment in England; but, by a memorandum on a promissory note given by them to Prince, before they sailed for India, it appeared that one Leigh, of London, had acted as their agent in some insurance transactions, and was the brother-in-law of Clark, a fact which the plaintiff knew. On the 7th August, Prince notified Leigh that he would not accept the sugars, and advised him to insure them. Leigh declined to interfere, alleging that he had no knowledge of any transactions between the parties. The vessel in which the sugar was shipped was lost off the Cape of Good Hope, in June, but the intelligence was not received in London, until the 26th August. Upon these facts it was held, in an action by Prince against Clark to recover the proceeds of the goods shipped to him, that the jury were warranted in finding that Prince had assented to the purchase of the sugar. There was a general verdict for the defendant, and Abbott, C. J., upon a motion by the plaintiff fora new trial, said, the plaintiff was not bound to accept the sugar. It was his duty, however, to notify his rejection of it within a reasonable time after he received the intelligence of the purchase, if there was any person here to whom the notice could be given. The jury here found, upon the evidence submitted to them, that Leigh was a person to whom notice ought have been given, and that it was not given within a reasonable time. Bayley, J. said, the principal has no right to pause, and to wail the fluctuation of the market in order to ascertain whether the purchase is likely to be beneficial or prejudicial; he is bound, if he dissents, to notify his determination within a reasonable time, provided he has an opportunity of doing so. He thought it was the plaintiff’s business to make inquiry whether Clark and Coffin had an agent in London, and that his neglect to do so, for two months, was evidence to go to the jury to show that he acquiesced in the purchase of the sugar. Holroyd, J. thought that, the jury might fairly infer, from the facts of the case, that the plaintiff did once assent to take the cargo on his own account, or that he meant at least to take the chance of the market. That they might presume that something had happened between the 29th May and the 7th August, to alter the intentions which he had once formed.

Now, in the present case, the plaintiffs appear to have acted in good faith, and with a desire to promote the interest of tbeir -principals; and they informed Warfield, one of the partners, of what they had done, and of their motive for doing so. He gets this letter at least as early as the 5th April, and makes no answer until the 9th May. Under the well settled rule it was his duly to answer in a reasonable time, and the question is, was this acting within a reasonable time. We do notfeel disposed to say that we would be obliged to hold a planter to the same promptitude as a merchant. His situation, habits, and means of deliberation, are not the samé. But we cannot but think with the judge below, that, the length of this delay, on the part of Warfield, was very suspicious. It looks very much like waiting the fluctuation of the market, to get the certainty whether the shipment to Europe would be beneficial or prejudicial. In moráis this ddes not seem fair towards a party who had acted in good faith for what he supposed the interest of his employer; arid, for that reason, the láw does not permit it.

The case is less free from difficulty as to Carneal. The plaintiffs say that notice to Warfield was notice to him. This is questionable ; but it is not necessary to decide that point. We think, tinder the circumstances, that, even if wo ought not to hold the notice binding upon Carneal as-of the 5th April, it is fair to conclude, under the evidence, that if was communicated to him by his partner before the 22d April; at which date, if not sooner, the plaintiffs’ direct communication reached him. At all events he waited seven days, and the coincidence of the date of his letter and of the publication, at Cincinnati, of the European news of the decline of dotton, is an unfavorable one. It is very difficult to resist the impression that, both the defendants phrpdsely postponed their replies until they could'get such advice from Europe as would enable them to make their choice, with a certainty of having the best of the bargain. Suppose, on receipt of the plaintiffs’ communication of wha'thehad done, the defendants had at once replied: “ You have disobeyed our orders, and now we shall wait intelligence from Europe, and either take the shipment or repudiate it, as we shall then deem most advisable.” Certainly they would have been held to the shipment. Yet their procrastination and silence have,-we think, virtually placed them in that position. Rhe relation of principal and agent is one of mutual confidence, candor, and good faith. See Paley on Agency, 4, 31. Russell on Factors and Brokers, 26, and the cases there cited. Troplong, Mandat, § 611 et seq. Civil Code 18d5, 1811, 2979.

It was objected by the defendants that their factors had been guilty of negligence, in not advising them immediately of the shipment. If any injury had occurred to the’ defendants by the delay, the plaintiffs would have been responsible for its consequences. But no injury has been shown, and we cannot perceive how a negligence of the factor, which did the principals no harm, should work an exemption of the defendants from the responsibility subsequently arising from their own conduct.

The district judge gave judgment against Warfield. but released Carneal, upon the ground that, although his delay to answer, gnd then replying only after the arrival of the steamer’s news, were very suspicious circumstances, yet that it was to be inferred from an account subsequently rendered by the plaintiffs, on the 1 June, 1844. in which a sum was carried to his private account, that they had assent d to the choice made by him in his letter of May 30th, We are not prepared to assent to this inference. The accnunt.in question appears to us to be made, upon the basis of the Shipment to Liverpool being for account of the defendants. The plaintiffs credited the amount of the nett proceeds of the cash advance made by the New Orleans agent of the Liverpool consignees, various deductions having been made for shipping charges and commissions on advance, &c. The credit was stated in these words; “March 12. By nett proceeds of cash advance received of Messrs. Charles 8f Klingenderf shipment of four hundred and thirty five bales cotton, to Messrs. H. Castellain Co. Liverpool, per ship Maranham, for your acccount and risk, per statement rendered you, viz : &c.” The credit of $1640 given to Carneal individually, was the result of a balance thus produced. If, instead of crediting a sum arising, from the credit of the nett proceeds of cash advances received from the english agent, the plaintiffs had credited Carneal upon the basis of the broker’s valúation, the alternative proposed in the plaintiffs’ letter, then the inference of acquiescence made by the district judge would have been tenable.

We are of opinion that, under the evidence, the plaintiffs may' be considered as not contemplating the solidary liability of Carneal, but as regarding him as interested for one third in the cotton.

It is, therefore, decreed that, the judgment against'Warfield be affirmed ; and it is further decreed that, the judgment as to Carneal be reversed, and that the plaintiffs recover of said Carneal the sum of $1321 63, with interest from the 29 September, 1846, until paid, and costs in the court below, and it is further decreed that the defendants pay the costs of this appeal.


text:
    Snethen v. The Memphis Insurance Company.
    Where in an action on a policy of insurance on merchandize on board of a barge, which was sunk while in tow of a steamer, the evidence shows that the barge was strong and in good condition, and that it was possible that her sinking may have been owing to some unseen and undiscovered peril ot the river, it would be to extend the doctrine of seaworthiness too far, to avoid the policy because the cause of the accident is not specifically ascertained by the evidence.
    The general rule is, thafseaworthiness is presumed; but where a vessel springs a leak soon after the risk commences, without any apparent cause from perils within the policy, a new presumption arises of unseaworthincss; but this latter presumption is not conclusive; it may rebutted by evidence.
    APPEAL from the'Fourth District Court of New Orleans, Straxobridge, J.

      Hunter, for the plaintifl,
    cited Patrick v. Hallet, 1 Johns, 241. 2 Phillips, 758. 1 Marshall, 165.

      Watts and Spring, for the appellants,
    relied on Marshall on Ins., (1 am. ed ) pp. 156, 363. Phillips onEv., (2 am. ed.) vol. I, p. 324. 3 Johns. Cases.
   The judgment of the court was pronounced by

Slidell, J.

This action is upon a policy on merchandize loaded on a barge, in tow of a steamer. The barge was suddenly discovered to be leaking badly and sinking, on the second day after the departure from St. Louis, on the way to New Orleans. Upon discovering her condition the steamer was-turned towards the shore, and in doing so the barge careened, broke her fastenings, turned over, and sunk. The defence is that the barge was unseaworthy. None of the witnesses undertake to point out a specific cause for the accident, as that the barge struck a 'snag or sand bar, or incurred any other evident casuality. The court below rejected the defence; and gave judgment for the plaintiff. The defendants have appealed.

The evidence to the point of seaworthines at the inception of the voyage, is-extremely full and cogent. It comes not merely from the officers and erew of the steamer, but from other reliable sources, such as the inspectors employed by the St. Louis Insurance Company, one of whom was inspector of hulls un-der the act of Congress. A case could rarely be presented, where the testimony of witnesses to the fact of seaworthiness would be, more complete. On the other hand, the failure to fix the accident upon some specific cause, is a circumstance which has been zealously urged by the defendants’ counsel, as creating a presumption of unseaworthiness, and certainly deserves consideration in determining the question of fact upon which the cause turns.

The witnesses offered by the plaintiff, who were eye-witnesses of the disaster, concur in saying that she could not have sunk 'so rapidly after the discovery of the leak, if some external violence had not occurred. On the. other hand, two witnesses examined by the defendants, and who professed to be experienced in such matters, say, that if a barge in tow of a steamer, conies violently in contact with any obstacle, such as a snag or sand bar, the shock would be felt on board the steamer, and express their surprise that a barge should sink when in tow of a steamboat, from any external cause or shock, without its being felt. One of these witnesses concedes, however, that an external peril might, under some circumstances occur, and sufficient to cause the sinking of a boat, without being observed at. the moment, such as sliding upon a stump in bringing the boat to land, the working out of a water plug, &c., and that he has heard of disasters occurring to boats without any satisfactory reason being assigned; that it is very difficult, in some cases, to ascertain the cause of a barge or steamer’s sinking.

The snags, shoals, logs, and sand bars, give a peculiar danger to the navigation of the Mississippi generally; and the part of the river where the present loss occurred, was not exempt from those sources of danger. After commenting on those peculiar features of the navigation of the Mississippi, the district judge expresses his opinion that the barge was probably injured at a landing where some cargo was taken, on the night before the accident, which occurred at an early hour in the morning, the steamer and barge having laid to all night.

With proof so cogent as was offered to show the youth, strength and good condition of the barge, and wilh a reasonable possibility that some unseen peril of the river, whose effect was not at the moment discovered, may have caused this loss, it would be pushing’the doctrine of seaworthiness too far, to avoid this policy because the cause of the accident is not specifically ascertained by the evidence.

The general rule is, that seaworthinessis presumed. But when avesselspringg a leak soon after the risk commences, without any apparent cause from perils within the policy, then a new presumption arises, and the unseaworthiness wil* be intended. But this latter presumption, however, is not conclusive ; it may be countervailed. Chancellor Kent seems to recognize this, although he dissented from the majority of the court in Patrick v. Hallett and Bowne, 1 Johns. 246, for he cites, with apparent approbation, the opinion of Marshall to the ef" feet, “that where a ship is lost, or incapable of proceeding on her voyage, and this cannot be ascribed to stress of weather or any accident on the voyage, the fair and natural presumption is, that she was not seaworthy, and it is incumbenj. on the insured to show that, at the time of her departure, she was in fact seaworthy.”

In Talbot v. The Commercial Insurance Company, 2 Johnson, 129, the court seems to have narrowed the liberality towards the assured of the doctrine in Patrick v. Hallett; but still the doctrine is distinctly enunciated that, the presumption of unseaworthiness, arising fronfthe springing of a leak soon after the commencement of a voyage, without any apparent cause or extraordinary accident, may be repelled.

In reviewing the easeMf the'Peggy, where_the"liability of the underwriter was maintained by the same court, although the vessel, without stress of weather or apparent cause, became water-logged, and sunk on the second day of her voyage, the court enumerates the prominent facts which were then considered as countervailing the presumption of unseaworthiness; the fact that she was two years old, the durable character of her materials, the testimony .of her being tight, staunch, and strong when she sailed, coupled with the admission of the underwriter that, she was seaworthy three months before. This evidence the court then compared with the facts of the case before it, where the vessel was between eight and nine years old.

After a careful consideration of the testimony, which satisfied the mind of the district judge that the barge Wiis seaworthy at the commencement of the voyage, that accidents proceeding from perils of the river, might occur to produce a leak and eventually a loss, without being at the moment perceived, and that some such peril must have been the operating cause in the present case, we have deemed it to be our duty to affirm the judgment.

Judgment affirmed.

      For the reasons assigned in this opinion, judgment was at the same time affirmed, in a .case between the samo plaintiff and the Tennessee Marine and Fire Insurance Company; the parties having agreed that the judgment in the case against the Memphis Insu.'¿aw Qompany, should lie conclusive of this,


author: Kino. J.

text:
    Jacobs v. Augustin, Sheriff, et al.—On a Re-hearing.
    iSec. 3 of the stat. of 35 March, 1831, authorizing the court, in case of the dissolution of an injunction, to condemn, in the same judgment, the plaintiff" and his surety, jointly and sev. erally, to pay to the defendant interest on the the amount of the judgment and damages, applies only where judgments have been enjoined. In other cases, the defendant mast be left to his remedy on the bond.
    APPEAL by the plaintiff from ajudgment of the Fifth District Court of New
    Orleans, Buchanait,, J.
    In this case, on the first hearing, the judgment of ■the lower court was affirmed, for the reasons assigned by the judge a quo. The case involved no question of law,

      Greiner, for the appellant.

      Augustin, for the defendants.
   The judgment of the court on the re-hearing was pronounced by

Kino. J.

The plaintiff instituted this action to set aside an adjudication made by the sheriff of certain property, which she alleges belongs to her, and was illegally seized to satisfy a judgment rendered against Mrs. Bernard Hart. She also claimed damages for the alleged wrongful acts of the sheriff, and obtained an injunction restraining Romer, the purchaser, and the sheriff, from dispossessing her. Various defences were pleaded by the defendants, and Romer prayed for the dissolution of the injunction, with damages. The district judge sustained the sheriff’s sale, dissolved the injunction, and condemned the plaintiff and her surety, in solido, to pay Romer $100, special damages. That judgment we affirmed. Upon a reconsideration of the testimony, we still think that the validity of the sheriff’s sale was properly maintained. The judge, however, erred in awarding special damages to Romer. It has been repeatedly held that, the act of 1831, providing for assessing damages on the dissolution of injunctions, applies only to cases of judgments enjoined. In other cases the party aggrieved is left to his remedy upon the bond. 17 La, 183. 19 La. 402. 2 Rob. 180. This error escaped our attention, when the case was originally presented.

It is, therefore, ordered that, so much of the judgment appealed from as awards $100 special damages to Romer, be reversed, without prejudice to Homer’s right of action on the injunction bond. In other respects the judgment is affirmed, the appellee paying the costs of this appeal.


author: Kme. J. Kino, J.

text:
    Succession of Argote y Villalobos.
    An act of pledge, sous seing privf., to have effect against third persons, mast be recorded in the office cf a notary. C. C. 3125. A registry in the office of conveyances is insufficient to give it any effect against third persons.
    Where an actof transfer of the rights of an heir in a succession recites a previous pledge Of the hereditary rights to a third person, the transferee cannot oppose her act of transfer to the claim of the pledgee, though the act of pledge had not been recorded in the office of a notary, hut a subsequent acquisition by her of the rights of the heir, by a title superior to that of the first transfer, or to any claim that could be set up by the pledgee, will he valid.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      T. H. Leiois and Bermudez, for the appellant.

      Gedge, contri!.
   The judgment of the court was pronounced by ,

Kme. J.

Evariste Marin filed an account of his administration as curator of Argote y Villalobos, on which he placed himself as the assignee of Joseph Vargas, one of the heirs, for $800, to be first paid out of the funds falling to the share of that heir. Gaston Brusle and Madame Wiotte, opposed the account, claiming to be themselves the owners of the entire share of Vargas, and praying that the amount of the inheritance devolving upon him should be paid over to them. Several other oppositions were filed in the lower court, but the controversy, as presented to us, is confined to the respective rights of Marin and of these opponents, to the share of Vargas. The oppositions to the claim of Marin were sustained, and he has appealed.

It appears from the evidence that Vargas passed an act under private signature, in which he declared that, desiring to secure Marin against the consequences of two endorsements, he transferred to the latter all his rights in the succession of Argote y Villalobos, intending that Marin should retain in his hands the funds to be derived from that source, and pay himself, by preference over all other creditors of Vargas, for any disbursements made as the endorser of two notes, for $400 each. The act was recorded in the office of the register of conveyances. Marin took up the notes, some time after the I3th of May, 1847. Subsequently to the execution of this act, Vargas transferred to Brusle and. Madame Wiotte his rights in the succession of Villalobos, to the extent of $1,471 72. And still later, on the 2d November, 1846, he executed a third act, by which he transferred to Madame Wiotte his remaining rights in the succes. sionof Argote y Villalobos, reserving the right of repurchase within a specified time. In this last act he recites the previous partial transfers of his hereditary rights, and, among them, that to Marin, and declares that they are not to be affected by this sale; and that, in the event of his inheritance being insufficient to satisfy the previous claims upon it, the vendee is not to be responsible for their payment.

On the 28th of September, 1846, Murrell issued an'execution, under a judgment which he obtained against Vargas prior to the date of any of those transfers, in virtue of which he caused all the rights of Vargas in the succession to be seized, without regard to the previous transfers. At the sheriff’s sale they were adjudicated to Parra, who ceded them to Madame Wiotle.

Secs. 3, 5 of the stat. of 20 March, 1827, establishing an office for the registry of conveyances in New Orleans, relate to the registry of such acts of transfer as convey the title to property, and not to acts intended to secure an endorser against the consequences of his en-doz’sement.

The recording of an act of mortgage or pledge in the office of the register of conveyances in the city of New Orleans, is not notice to third persons. C. C. 3318, 3319,3125.

ON an application for a re-hearing, Lewis and Bermudez, for the appellant, urged that the stat. of 20 March, 1827, ss. 3, 5, has modified the Civij ■Code, so as to make the registry of acts such as that executed by Vargas in the office of the register of conveyances in New Orleans, equivalent to their registry in the office of a notary public.

It is clear that the contract between Marian and Vargas was not a sale but a pledge, by which the former gave his rights in the succession to secure the latter against the liability he had incurred as endorser. The act was under private signature, and could only produce effect against third persons by being registered in the office of a notary public. C. C. 3125. That formality was not observed. The only registry of the act was in the office of conveyances, which is not such a compliance with the law as to give it effect against third persons. Murrell’s seizure covered all the interest of Vargas which had not been previously alienated ; that interest passed by the sheriff’s adjudication, and is now owned by Madame Wiotle. It is true that the latter acknowledged the precedence of Marin’s claim over her own in the second act from Vargas to herself, and could not successfully oppose that act to Marin’s claim ; but she has since acquired the rights of Vargas by a title superior to the second transfer made to her, and superior to any claim that can be asserted by Marin. She holds under Parra, who was not affected by the pledge, nor by the second transfer to Madame Wiotle, which was made while the rights of Vargas were under actual seizure at the suit of Murrell. .

Judgment (firmed.

Same Case — On an Application por. a Re-hearing.

The opinion of the court, on this application, was pronounced by

Kino, J.

The 3d and 5th sections of the act of 1827 (B. & C. Dig. p. 603), relate to the registry of such acts of transfer as convey the title to property, and not to acts like that under consideration, which was intended to secure an endorser against the consequences of his endorsements. If the act between Vargas and Marin relate to real property, as is contended, it must be considered to be a mortgage ; and if it relate to moveables, it is a pledge. In neither event was the registry in the office of conveyances, notice to third persons. C. C. 3318, 3319, 3125. Parra, whose rights Madame Wiotle acquired, had no notice of the act, either constructive or actual, as far as appears from the record. Re-hearing refused.


author: Rost, T.

text:
    Michoud et al. v. Dejoux et al.
    Where a purchaser at a judicial sale of property sold under a mortgage retained by tho plaintiff on a sale of the property to the defendant, takes a rale on the plaintiff to show canse why the sale should not be rescinded, on the ground of the existence of alease made by the defendant and not made known at the time of the sale, the defendant, not having been a party to the jndioial sale, need not be made a party to the rule.
    APPEAL from the District Court of the First District, Buchanan, J.

      Duvigneaud, Roselius and Soulé, for the plaintiffs-.

      Schmidl and Castera, for the appellants.
   The judgment of the eonrt was pronounced by

Rost, T.

Dejoux purchased, on three years’ creditra house and lot from the succession of Girod. He failed to pay the first instalment at maturity, and the executors of Girod instituted proceedings against him and his endorsers, to recover the amount. During the pendency of this suit, Dejoux made a seven years’ lease of the property to Adilaide Brown, his brother’s'concubine, for an annual rent, proved to be less than one-foUrth of the real value of the tenement. The executors having obtained a judgment, Caused- the property to be sold under their mortgage, and the purchaser afterwards refused to take it on account of the lease, which was not made known at tfxe time of the sale. The executors then sued to avoid the lease, on the ground that it was made for the purpose of defrauding the succession of Girod, who holds a privilege on the property for the whole price. Subsequently, the purchaser at the sheriff’s sale took a rule upon the executors, to show cause why the adjudication made to him should not be set aside, on the ground that the sheriff was unable to give him a title and the absolute possession of the property, by reason of the existence of the lease. Thisx-ule was made absolute, and the adjudication set aside.

The answer of the defendant, Dejoux, contains the two following exceptions to the plaintiffs’ right of action: First, That they have sold the property, and nothing shows that the purchaser is not bound to take it, subject to the lease. Second, That the plaintiffs have not alleged, and it does not anywhere appear in their petition, that, even with the lease,the property would not sell for a sum sufficient to pay the succession of Girod all that is due to it. In case these exceptions be overruled, he filed a general denial, and farther answered that the lease had been made by him in the legitimate exercise of his right of ownership, that he had made large improvements on the property, wlxich, as it stood, was more than sufficient to pay all that is due to Girod’s estate. The other defendant, Adelaide Brown, answered that, she was the bond fide lessee of the property, and denied the fraud charged against her. The case was tried-before a jury, who returned a verdict for the plaintiffs; and the defendants have appealed fi-om the judgment rendered thereon.

The suit, as it was presented to the jury, is an action by the executors to avoid the lease on the ground of fraud, in order that the property may be made available for the price and the interest due thereon. We are satisfied that the vex-dict has done justice between the parties. But the defendants’ counsel p.sks chat the case be remanded, on certain-bills of exception found in the record»

After six of the jurors had been sworn, he insisted that the exception presented by his answer should be determined by the court before the cause was submitted to a jury, which application the court refused, considering the proper course to be, at that stage of the procee'dings, to submit the exception's to the jury under its instructions. We are not prepared to say that the court erred ; but, without- going into that inquiry,- the exceptions were clearly untenable, and the jury did no more than consider them in that light. The adjudication of the property had been set aside, and the purchaser was not bound to take the property. The executors alone had an interest in the proceeding. The allegation in the petition that the lease was made to defraud the succession of Girod, who has the vendor’s privilege on the property for the price, was amply sufficient. Unless the plaintiffs were injured by the lease, there could be no fraud’.

The exceptions of the defendants to the refusal of the judge to instruct the jury on some of the p'oints submitted by their counsel, are equally untenable. No part of -the price is shown to have been paid to the succession of Girod. It is true that the property, without the lease, originally sold fora sum sufficient to pay it; but this adjudication has been set aside, and can have no effect on the rights of parties.

The rule to set aside' the adjudication was properly litigated between the purchaser and the plaintiffs. The defendant, Dejoux, was’ not a party to the judicial sale. Judgment affirmed.


author: Eustis, C. .1.

text:
    Menard v. Davidson.
    Where the directors of a bank, in consequence of a private loss sustained By their cashier/ make him a payment of his salary for six months in advance, and he afterwards pays himself a second time, by monthly insfalmeafs for the same period, the surety on bis official bond, who had bound himself for the faithful performance of his duties by the cashier, and to save the bank harmless from any negligence or misconduct of his, and that the lattes should render a faithful account of all moneys and effects committed to his charge, will be bound for the deficiency. Such an advance of salary cannot release the surety.
    from the Fifth District Court of New Orleans, Buchanan, J.
    2b G. Morgan, for the appellant.

      Benjamin and Micou, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. .1.

Davidson was the cashier of the branch of the Carrollton Bank at Baton Rouge, and McNeill was his surety. The breach in the condition of the bank assigned is, the appropriation of a sum of money by Davidson to his own use, for which McNeill is sought to be made liable in this suit. There was an assignment made of the right of the bank in this claim to the plaintiff, the validity of which has not been contested. Judgment was-rendered in favor of McNeill, and the plaintiff has appealed.

Under a resolution of the directors of the branch, of the 23d of November, 1841, the cashier was authorized to draw his salary for four months in advance, on paying interest; and by a resolution of the 13th of April, 1842, he was authorized to draw his salary in advance for six months, by paying the usuaj interest; and, in case of approval by the mother-bank, should it be required; and it is added in the latter resolution, of which the cashier was the recording scz-ibe, that Mr. Davidson offered to give aznple security for said loan.

The deficit in this czise arises fronz Davidson’s having z-eceived his salary twice, once under the above resolutions in advance, and afterwards in the re. guiar monthly installments. The defence is that, the surety is not liable for the amount, it having been loaned; and that the advance of the salary to the cashier was a violation bf the conditions of the suretyship, and that he was thereby discharged.

The salary, its amount, and mode of payment, do not appear by the bond to have formed a constituent part of the contract-. - It is not mentioned. The condition is, for the faithful performance of his duties by Davidson, and that he should render a faithful account of all moneys and effects committed to his chaz-ge. and should save the bank harmless from, or on account of, any negligence or misconduct. To this point no authority has been adduced, and We cannot say that the increase or diminution of the salary of an officer, oran advance or delay in the payment of it, releases his sureties. Nozie of these cases can be distinguished in pz-inciple ; and if in one the surety is released by the act, he would be equally so in the others.

It is clear that a surety is not bound for loans, or ordinazy debts, contracted by the cashier with the bank, and for which he becomes its debtor in the coui-se of business. But We can find no gz-ounds whatever for treating the defalcation under considez-atiou, as a debt of that character. The term loan used, as it stands in the resolution, does not control the Whole impoz-t cz-eated by the other terms employed. The cashier was authorized to draw his salary for six months in advance, in consequence of his having sustained loss by a fire, he to pay the usual interest. The advance was evidently to be extinguished by his salary as it was earned, and it was in that sense that the pretentions afterwads set up by the cashier, to consider the advance as an ordinary loan, received the rebuke of the directors of fhe znother-bank. Your lettez-,” says file cashier of the institution, “ of the 14th instant, has been submitted to our direction, o.nd more than surprize has been created, with the construction you would place on the resolutions of the board of your branch relative to the advance of salary-allowed. Neither the letter nor spirit of those resolutions justify your position; the very fact of your not having credited the interest is further evidence, &c.” And what explanation is given of this omission to cz-edit the interest? And if the transaction was a loan merely, which made the cashier an ordinary debtor to the bank, with the privilege of renewing under the usual curtailment of ten per cent, as contended for by him in his letter, which produced the reply just given, how does it happen, that he who was bound faithfully to enter all transactions of the bank uuder their appropriate head and in their proper place, never entered this in the loan or discount line? It was charged to suspense account, indicating thereby that it was in suspense, and the very reverse of what he pretended it was. No entry is made of either curtailment or interest, according to the conditions of the pretended loan; but he regularly took the whole amount of his salary at the expiration of each month, and charged it to contingent expenses without any deduction. JRes ipsa loquitur. We think there is nothing in this defence, and that the judgment appealed from ought to be set aside, notwithstanding the verdict of the jury in the court below.

It is, therefore, ordered, that the judgment appealed from be reversed, and that the plaintiff recover from the defendant, S. D• McNeill, the sum of §1,559 52, with interst from judicial demand, aud costs in both courts.