text:
    No. 9822.
    Washington Davie vs. M. Levy & Sons.
    If tlie interference of tlie employer in tlie work, or any of its details, results in tlie doing of anything, as a part of the work, from which damage ensues to another, the employer is liable.
    If one permits the establishment of a public nuisance upon property under Ids control, though incidental to a work otherwise lawful, he will he liable.
    When an obstruction or defect, caused or created in a public street, is purely collateral to _ the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the employer is not liable.

    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, d.

      W. 8. Benedict and Brunch K. Miller for Plaintiff and Appellee.

      Brauyhn, Buck, Binkelspiel t& Hart for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

This is an action for the recovery of $15,000 damages from defendants, on the grounds stated in the petition of plaintiff, viz:

Plaintiff was a member of a fire company composing, along with the members of other companies, the Firemen’s Charitable Association, which, at tlie time of the occurrence of the facts stated in this petition, was tinder a contract with the city of New Orleans to extinguish fires. That tlie duty of extinguishing fires antler said contract was actually performed by the members of plaintiff’s fire company, who were also members of the Firemen’s Charitable Association.

That plaintiff, while on his way to a fire, riding upon the truck of his company, along a public street, in accordance with his duty, to aid as a member of said two organizations, in the extinguishment of the said fire, on a dark night, about 11 o’clock, was knocked off of the truck by a “ coal run;” which was a sort of bridge built across the said street at about an average height of eight feet from the level of the street, leading from the coal yard, owned and operated by defendants, across said street and to the water’s edge of the Mississippi river, on a street fronting which said coal yard was situated. Plaintiff charges that said “ coal run ” was erected by defendants without authority, and was a public nuisance established by defendants. An ordinance of the city is pleaded, permitting fire engines to proceed to fires, at such rate of speed as the drivers thereof may deem necessary.

This suit is for damages caused by his being knocked off of the track by said “ coal run,” under the circumstances detailed in the petition.

The defence is : 1st. Contributory negligence, consisting of plain - tiff’s riding upon the said track on his way to the fire; 2d. That said track could have passed under said ran without damage to plaintiff, if carefully driven ; 3d. That the driver of the truck was warned not to pass under said “ coal run;” 4th. That defendants had employed a competent contractor to put into said coal yard, from a flatboat lying opposite in the river, a quantity of coal; that for this purpose said contractor erected said “coal run;” that defendants reserved no control over said contractor; that said contractor alone was responsible to plaintiff.

I.

As the court below sustained defendants’ last ground of defense, and rejected the plaintiff’s demands, we will examine it first.

We find in the record the lucid and elaborate opinion of one of our learned brother of the district bench, who seems to have attended most carefully to all the facts of the case, and we have made the following extracts therefrom, viz:

There was on North Peters street “ a coal-run, or bridge, which had been put, and was used (temporarily) as a x>assage for coal wheelers, who were engaged (not at the moment, but during the day) in discharging a boat-load of coal from a barge in the river, to the yard of the defendants, which faced the street at that point.

“ The coal barge in question, as well as I can gather from the testimony, was distant from defendant’s yard between seventy-five and one hundred feet, of which about thirty was made up of the street proper or roadway, and tlie balance, of the banquette next the coal yard on-one side, and the levee on the other.

“ Upon each side of the roadway was a trestle — the one nearest the river being about seven and a half, or eight feet high ; and the other nearest the yard, on the edge of the banquette, being about ten feet., or more, high.

“ Prom the coal barge, across the levee, and ascending over these trestles was a continuous line of staging, or planking, across which the coal was wheeled, over defendcmts1 fence and into their yard.

“ This run,’ as it is called, had been put up the day before the accident, and had been used the whole of that day. A baker’s wagon had, however, come in contact with it, as at first constructed, with some damage to the top * * and it had been raised, where it spanned the street, some five or six inches; after which vehicles of various kinds passed under it without difficulty.

* * * * ij? * -# * *

Again: “The evidence shows that for many years past the coal dealers of this city, who have their yards on the levee, have had the coal, they buy in barges in the river, discharged into their yards by contract; and that there are men, whose business it is to take sucli contracts, and who engage to furnish the labor, the implements and the material necessary to the work, and to transfer the coal, from the barge to the yard, at rates varying from three to four cents per barrel.

“ It is further shown that defendants made such a contract with Pendleton Harris, and that Harris agreed to transfer about 9000 barrels of coal, from a barge which defendants had bought — and which was then lying in the river in front of their yard — into their yard at the agreed price of 3J cents per barrel; Harris to furnish everything necessaryto the work, and to receive his pay, when it should be completed.

“ That Harris has been in the business, as a contractor, for about nine year, and is regarded as a competent and reliable man; and that it is a common and every-day occurrence for him, and other contractors, to build these runs, from the levee to the different yards, in order to carry the coal up, and make a pile of it, rather than spread it out over, perhaps, more space, that the yard -would afford.

“ One of the defendants testifies that he told Harris, when the contract was made, that he (Harris) must so deposit the coal in the yard, as to leave room for two carts to turn round and get on the scales; and that this was part of the contract, as originally made.

“ Harris, upon the other hand, testifies that, after a portion of the coal had been discharged, Marks Levy called his attention to the fact that he was crowding their scales; and told him- then that he must leave the required space; that he (Harris) replied that he could only do so by putting up a run ; and that Levy said ’■ that he must have the room for his carts to turn around, and get on the scales.

“ There are several witnesses, employed by Harris as coal wheelers, who corroborate Harris; and even go much further.

They testify that Levy distinctly ordered Harris to put up the run ; pointed out the trestles, and told Harris to use them; and actually assisted in putting in a block to aid in the construction of the run.

“ I am unable, however, to attach to this testimony the weight (that) is claimed for it,

To put the coal in the yard properly was as much a part of Harris’ contract, as to jmt it in at all; and he was equitably bound to furnish the appliances to put it in prox>erly, as to furnish the wheel barrows and shovels, by means of which it was taken from the barge.

u It would be absurd to say that it would have been a, proper delivery of the coal for him to have so obstructed the yard with it, as to prevent defendants’ carts from reaching the scales, or entering, or turning around in the yard; and, more especially, as the evidence goes to show that it is an understood part of such contracts that the dealer shall designate in what part of his yard the coal is to he deposited. Nor can there he any dispute that such was the case in this instance.

“ Whether Levy told Harris before the work began, or after it, that the space must be left, his right to insist upon this requirement, as X>art of the contract, was never, for a moment, questioned.

“ There was then no reason why Levy should give any special instructions as to the manner in which the coal should be discharged; it was a matter that did not concern him, and in which he had absolutely no right to interfere; and Harris, who is a much more intelligent man than the laborers who worked for him, testifies positively and repeatedly that the order to pat up the run consisted merely in the fact that Levy required him to leave room for his carts around the scales, and that in order to do so he was obliged to resort to the run; and that when he told Levy that he would have to x»it- up the ran, Levy replied that he did not eare how he put the coal in, so that it, was done.”

We have taken occasion to verify this statement of facts by making a careful examination of and a comparison with the record, and feel perfectly satisfied that it is substantially accurate.

11.

This defence is resisted by the plaintiff on the theory that: 1st. “ If the interference of the employer in the work, or any of its details, results in the doing of anything as a q>art of the work, from which damage ensues to another, the employer is clearly liable, since he who directs, or in any manner participates in a tort, is liable as principal therein.”

2d. “ If one permits the establishment of a public nuisance upon lamil or property under Ids control, though incidental to a work otherwise lawful, he will be liable for any damage caused by it, though such public nuisance be actually erected by an independent contractor.” These two propositions are supported by the cited authorities; but the difficulties in plaintiff’s way are rather those of fad than of law.

In our opinion, the evidence does not show that defendants interfered, with the contractor “in the work or any of its details.”

It does not show that defendants permitted, the establishment of a public nuisance at all; or if at all, “upon land or property under their control.”

The interfering “run ” whereby the accident happened to the plaintiff, was erected upon cribs or movable piers that stood on either side of a public street or highway, which was spanned or bridged overhead, at a height of eight to ten feet with plank or scantling. The coal was wheeled from the coal barge in wheelbarrows over this trestle, and poured or dumped off into defendants’ coal yard in a pile or heap.

The claim of the plaintiff is “ that he was knocked off of the truck by a 1 coal-run,’ which was a sort of a bridge built across the said street.”

Again: “Plaintiff charges that said ‘coal-run’ was erected by defendants without authority, and was a public nuisance established by defendants.”

The case of Robins vs. Chicago City, 4 Wallace, 679, is precisely in point and in exact parallel with the one at bar.

The Court say:

“When the obstruction or defect caused or created in the street, is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that.the employer is not liable; but where the obstruction or defect which occasioned the injury, results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor aud authorises him to do those acts is equally liable to the injured party.” Citing 28 Pickering, 24; 17 N. Y. 104; 16 Wallace, 567, Water Company vs. Ware.

A similar principle lias been recognized by this Court in the case of Sweeny vs. Murphy, 32 Ann. 628, in which it was held, that “the master and owner of a ship, having contracted with a competent stevedore to load her and not having contracted or directed, in any manner, the laborers employed in the loading, are not responsible for injuries resulting from the negligence of said laborers.” 29 Ann. 791, Catherine Riley vs. State Line Steamship Company.

We therefore conclude with the district judge who tried this case that, if damage results from the manner in which a contractor chooses to execute a perfectly valid contract, without the proprietors’ interference or direction, the latter is not responsible therefor.

If, in the performance of the contract by the contractor, in the manner that has been pursued ordinarily by persons of that occupation, damage result, it will be considered collateral only to the contract, and not an incident of it for which the proprietor is responsible.

Judgment affirmed.


source: Caselaw Access Project

author: Poems, J.

license: Public Domain

text:
    No. 9855.
    Succession of Mrs. Charlotte Piffet.—On Claim for the Marital Fourth.
    In a contest over the claim of a survivor for the marital portion out of the succession of the surviving husband or wife, the plea of prematurity is not good if the judicial demand for the portion is made after the presentation of a final account of administration by the executor, although circumstances subsequently occurring may prevent an absolute decree fixing the precise amount of the marital portion.
    Ef the survivor is in necessitous circumstances independently of the legacies which the deceased has left him, he is not debarred of his right to claim the marital portion, but in such a case he is bound' to include in this portion what has been left to him as a legacy by the deceased- C. C. Art. 2383.
    The indebtedness which the survivor owed to the deceased, and from which he has been released and discharged by the will, is not a legacy within the meaning of Art. 2382, to be deducted from the portion accruing to the survivor.
    The right to claim and receive the marital portion is transmissible by inheritance, if the surviving spouse, who had made judicial demand therefor, dies before rendition of judgment on Ms demand.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Houston, J.

      J. Ad. Hosier and Jos. P. Horner for Plaintiffs and Appellees:
    i.
    The surviving husband or wife takes tbe marital fourth as heir,- the jurisprudence denominates it an inheritance. Dunbar Heirs, 5 Ann. 159; Connor vs. Connor, 10 Ann. 451-450; Gee vs- Thompson, 11 Ann. 657; Doster vs. i'erguson, Tutor, 1 Ann. 262. The wording of the Art. 2382. O. 0., he or she has a right to take out of the succession of the deceased the fourth of it, in full proporty, an absolute ownership regulating descent, not an action of creditor against succession. 27 Ann. 594; 7N. S. 342.
    II.
    The heir who accepts is considered as having succeeded to the deceased from the moment of his death, 947 C. C., and he transmits the succession to his own heirs, C. C. 944, and is authorized to institute all the actions which the deceased had a right to institute, and to prosecute those already commenced. 945, C. C. “Sans otre teuu de fournir d’autres preuves que les preuves que Ton pouvrait exiger du défunt.” Laurent, vol. 9, §§215, 216. The son and grandson of John Baptiste PifFet, Sr. (who was surviving husband, now deceased), succeed to all the rights of the latter. 943 O. C. They have been recognized as heirs, and as such put in possession.
    III.
    Homestead law must not be confounded with the marital fourth. The latter is not a charity orbounty. The status of the surviving husband or wife is that of heir. Art.2382G.C. The phraseology of the Spanish laws, from which this right comes to us directly, is “ 7¿e* redar, herencia.” G-utierrez, Yol. 11, pp. 638-39. Gomes,11 tunc succedit cum liberis com• munibus, in quarta parte, bonorum uxoris.” Melangon, G La. 115; Succession of Portier, 3 Ann. 104.
    IV.
    The regime of separation of property and exclusion of community are not exclusive of iho right to the marital portion; no antagonism. The Article 2382 C. O. is a law of descent. The proper spheres of each are marked; both harmonize.
    V
    This claim is not premature. The universal legatees, who are also legatees under a particular title, have caused tliemselyes to be put in possession of their respective legacies under particular title. Where heirs have received a special amount of money or property, which they detain without any such settlement, no previous liquidation necessary; an estoppel. Durian vs. Doiran, 9 Rob. 101; 7 Ann. 263; 8 Ann. 488; Harrell vs. Harrell, 17 La. 379. Besides, the executors caused the residuum of the properties to be sold for the very purpose of effecting this settlement, and thus the estate is converted into cash, on deposit in bank. The succession is rich, debts paid, final tableau of distribution filed, wherein the executor asks to turn over to the heirs the propeity and assets, and specially prays to be discharged from this trust as executor. The succession is thus actually liquidated: bhe marital portion can he claimed by way of opposition. Succession of Leppleman, 30 Ann. 468. Nearly all the heirs are absentees. 2 N. S. 447; 13 La. 298; 6 Ann-152; Confl. Laws, § 1513; 3 Pickens, 128.
    VI.
    The remission clause in the will is not to be considered as a donation, or something to be taken on account, or to be taken in deduction of the marital fourth. 2130 C. C. and Marcardó, Vol. 4, Nos. 414,598. Besides, the evidence shows that the deceased husband was not indebted to the de cwjios.

    * VII.
    Inventory not conclusive as to value of merchandise. There is error in valuing it at more than §2000. Sue. Deane, 33 Ann. 867; 12 Ann. 760-; 1 Ann. 230,
    VIH.
    The evidence shows clearly that the deceased husband was left in necessitous circumstances. C. O. 2382.

      T. Gilmore & Sons for Defendants and Appellants:
    1. Where the parties were married under the rógime of separation of property and exclusion of community, and each renounced all right upon the property of the other, the survivor cannot claim the marital portion; sucli claim would he in derogation of the marriage contract, which is the law of their union as to propeity and must be observed. O. G. 2325; Boilcux Com. on Arts. 1586 to L53Í), French Codo; MarcadC;, Art. 1536, Vol. 6, p. 12; Troplong Cont. de Alar., Vol. 3, p. 761; Pothiev Gommunautd, Ho. 464; Laurent, Vol. 23, p. 443.
    2. Article 2382 C. G., which provides that *' when the wife has brought no dowry, or what she has brought is inconsiderable with respecto the condition of the husband, if either die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called iho marital portion,” does not apply to the case of husband and wife who, at the time of marriage, stipulate for sepaiation of property and exclusion of community, and are in opulent circumstances. Succession of Loppelman, 30 Ann. 468, and authorities there cited; see also, Armstrong vs. Steelier, 3 Ann. 713.
    3. A husband, who having arrived at the age of 85 years, being free from debt, a legatee of his deceased wife of a usufruct worth §2500 or §3000 a year, of merchandise worth §5389.69, and is liberated from the payment of his debt to the wife, is not left by the • death of his wife in necessitous circumstances within the meaning of Article 2382 G. C •
    4. The husband, dying before the succession of the wife is liquidated and before bis claim to the marital portion is established, does not transmit his rights to his heirs. The obligation on tbe pare of the wife to support the husband is personal. C. C. Arts. 2000-2004, 119; Vasseur vs. Dupre, 8 Ann. 488; AIcCoy vs. McCoy. 26 Ann. 687; Succession of Robertson, 28 Ann. 832; Succession ol* Durlcin, 30 Ann. 669.
    5. The surviving husband or wife entitled to the marital portion “is bound to include in this portion what has been left to him as a legacy by the husband or wife who died firs! 0.0.2382; Melan^on’s Widow vs. Ilis Executors et al., 6 L. Ill; vSuccession of Deroucn, 10 Ann. 675.
    fi. “Until the succession is liquidated, it is impossible to ascertain whether the wife died rich, and unless she did and the husband is shown to be in necessitous circumstances, the marital portion is not due.” Vasseur vs. Dupré, 8 Ann. 4S8; Duriaux vs. Doiron. 9 Rob. 103; Melaucon’s Widow vs. His Executors. 6 La. 110; Harrall vs. Harrall, J7 La. 376,

      T. J. Semmes & .Legendre, J. O. Nixon, Jr., .L. L. Lem/, and J. <). /I. Fellows, on the same side.
   The opinion of the Court was delivered by

Poems, J.

This controversy involves the right of J. B. Piffet, husband of the deceased, to claim the marital portion out of her succession, and the right of his heirs at law to set. up their claim thereto as an inheritance from him.

The affirmative of both these propositions was maintained by the district court, and the present appeal is prosecuted by the executor and by legatees under the -will of the deceased. •

The claim is predicated on the provisions of Article 2882 of the Civil Code, which reads as follows:

When the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the. stirvivor in necessitous circumstances, tlie latter has a right to take out of the succession of the deceased what is called the marital portion; that is, the fourth of the succession in full property, if there be no children, and the sanie portion, in usufruct, only, when there are but three or a smaller number of children; and if t.lie-ie be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is hound to include in this portion what has been left to him as a legacy by the. husband or wife who died first.”

Mrs. Charlotte Piffet died on January 17, 1884, and her will was admitted to probate on the twenty-first of the same month. She left, no issue, and her will contained numerous bequests intended as a full disposition of her estate, which was inventoried at $417,027.87.

In her will she bequeathed to her husband a certain stock of goods valued in the inventory at $5,389.69, and the usufruct, during his lifetime, of two pieces of immovable property, producing together a rental averaging $250 a month; and she released and discharged her said husband from all indebtedness which he owed her, which indebtedness was appraised in the inventory at. the sum of $65,382.37.

The record shows that the two spouses were separate in property by marriage contract.

Some time after judicially claiming the marital portion, J. B. Piffet, the surviving husband, died, and his sole heirs, Adolph Piffet, his son, and J. B. Piffet, Jr., his grandson, renewed it, and they are appellees before us in this litigation..

The district judge found all the facts required by law to entitle the surviving husband to claim the marital portion as well as his heirs to claim under him, and in his judgment, he directed that the amount of indebtedness from Piffet to bis wife be deducted from tbe active mass of the succession, and that one-fourtli of the remainder after deducting the debts, (which are insignificant) be set apart as tbe marital portion, subject to deduction therefrom of the value of the stock of goods bequeathed to the husband as above stated, and of the amount, received by him under his usufruct of the two pieces of immovable property, as stipulated in the will.

After a thorough consideration of the case we have reached the conclusion that the judgment of the district court is correct in every particular, and we shall therefore affirm it.

Under our understanding of the pleadings, the. issues presented involve a discussion of the following points:

1. Was tills demand premature 9

2. Was J. B. Piffet entitled to the marital portion 9

3. Having died "before he realized it, did he transmit his right to his heirs at law ¥

4. Is the testamentary disposition of Mrs. Charlotte Piffet, touching her husband’s indebtedness to her, a legacy within the meaning of Article 2382 of the Civil Code, and should the amount thereof be as such deducted from the marital portion ¥

1.

The contention that the demand for the marital portion is premature is answered by the record itself, which shows that it came up by way of opposition to the final account of administration presented by the executor, who proposed therein to wind up the succession, and to distribute the whole estate under the terms of the will, without recognizing the right of the surviving husband to the marital portion.

It also appears from the record that by far the greater portion of legacies under particular titles had been delivered, that the remaining property of the succession had been sold, and that the executor had in hand cash funds exceeding one-fourth of the entire amount of the succession, after deduction of the husband’s indebtedness which had been extinguished by the testatrix.

If at that juncture, which to our minds was the most propitious for action on the part of the surviving husband, his demand can be deemed premature, it would be difficult to conceive at what period the same objection could not be successfully urged.

It is true, as suggested by appellant’s counsel, that when the judgment was rendered below, the condition of affairs was not such as to allow the court to fix in figures the precise amount of the marital portion, but this is owing to a circumstance which cannot affect the legal status of Piffet’s demand, as it is due to an incident, which occurred after the institution of his judicial demand, in the shape of a suit by a party setting up ownership to a piece of valuable immovable property which formed part of the succession of the deceased.

Rut for that unforeseen complication, the succession was practically liquidated, sufficiently to allow the court to precisely determine the amount of the marital portion.

Such was not the condition of the cases presented in the authorities on which appellants place their reliance on this point. Harrell vs. Harrell, 17 La, 376; Durieux vs. Doiron, 9 Rob. 101; Vasseur vs. Dupré, 8 Ann. 488.

The rule adopted in those cases is that the succession must have reached a point in its settlement at which it may be shown that the deceased died rich, and that the survivor is in necessitous circumstances. Til ose two essential facts are glaring in this record.

IT.

And they are the two questions which properly come up under the second point of the discussion.

In this connection the record shows to our entire satisfaction that Mrs. Charlotte Piffet left an estate appraised at a sum exceeding four hundred thousand dollars, all her separate property without debts; that she had brought no dowry, and that she left no descendants, leaving a will by which she disposed of 'all her property; that at the time of her death her surviving husband, who had met with great disasters in his business, had no property or other resources from which he could derive any income, and that he was over eighty years of age.

Under such a showing, we feel no hesitation in concluding that she died rich, that he was left in necessitous circumstances, and that his. case combined all the circumstances required by the article of the Code to entitte him to the marital portion.

But the pivotal contest on this point is found in the argument of appellants’ counsel, that with the legacies left him by the deceased, the surviving husband had an income sufficient for his maintenance, even becoming the condition and style of life which he had led during the marriage.

Their contention seems to be that the condition of the surviving spouse, in a contest for the marital portion, must be tested under the effect of his or her circumstances, created by the testamentary dispositions in his or her favor, contained in the will of the deceased.

The proposition might be maintained in a case where the deceased had bequeathed to the survivor an amount equal to one-fourth of the whole succession, as in such a case the marital portion added to the legacies, would vest one-half of the succession in the survivor, to the detriment either of the collateral heirs or of the legatees of the deceased.

The proposition is therefore relatively, but not absolutely correct; and it manifestly has no application to this case in which the amount of the legacies to the survivor is avowedly insignificant when compared to one-fourth of the amount of the succession.

When levelled at the position of appellees in this case, the argument is answered by the very text of the article.

It provides in unqualified terms.that the surviving spouse, who is in other respects entitled to the marital portion, “is bound to include in. this portion what lias been left to him as a legacy by the husband or wife, who died first.” The article does not contemplate any exception based upon the value or amount of the legacy when compared to the value of the marital portion, as a condition to claim the marital portion, and its proper construction does not bear an interpretation which would defeat the claim for the marital portion, by the consideration that, witli wliat was left as a legacy to the survivor, he could derive an income sufficient to maintain him in the rank or condition which he enjoyed during the marriage.

Thus iu a case in which tiie marital portion might amount to $100,000, a legacy to the survivor equal to the sum of $50,000, would not bar him from claiming the marital portion in a case in which it would be one-fourtli of the succession. The practical meaning of the text would require him to include the legacy in making up the portion, hence he would take $50,000 under the will, and $50,000 under the effect of the law.

As this law finds its source in a noble quality of the human heart, and its sanction in a laudable desire to provide a suitable position for the surviving spouse of a rich consort, so as not to throw on the cold charities of the world a person who had hitherto held a high rank, and had enjoyed the advantages of wealth, the principle whicii it embodies has always met with a liberal construction by the courts of all the systems of laws which have enacted a similar provision.

Such were the characteristic features of the decisions rendered by the tribunals of that part of France which followed the Roman law previous to the adoption of the Code.

Several interesting cases, too long to be recited in this opinion, are reported by Merlin in bis “Repertoire de Jurisprudence, Verto Quarte de conjoint pauvre.”

The same spirit prevails throughout our own jurisprudence. In one of the earliest cases, Melancon’s Widow vs. His Executor, 6 La. 105, this Court was called to deal with the two questions, namely: the right of the survivor to the marital portion, and the effect of a legacy in her favor on her alleged necessitous circumstances. The net assets of the succession amounted to $5000, the value of the legacy to the wife was $1000 — and the court granted the marital portion subject to the deduction of the legacy. This is precisely the rule which the district judge followed in the instant case, and whicii we propose to enforce.

' In the case of the Succession of Fortier, the surviving husband was allowed the marital portion of a succession amounting to $26,000, although be owned property valued at $1100. 3 Ann. p. 104.

It is very clear to our minds that if the law-maker had intended the consideration of the amount of the legacy left to the surviving, by the deceased, spouse, as a condition of his title to the marital portion, he would certainly not have provided that the value of the legacy could have had no other effect but to decrease pro tanto the amount to be received as the marital portion.

Wo therefore hold that the legacies left by Mrs. Piffet to her husband did not affect the condition of the necessitous circumstances in which he was left at the time of her death, so as to debar him of his marital portion out of her succession.

III.

But, it is argued, as J. B. Piffet died before judgment was rendered on his judicial demand for the marital portion, the right which he was seeking to enforce and which was personal to himself has perished with Mm, and therefore his heirs cannot be heard to claim any benefit to themselves thereunder.

It is argued that the provision of the article simply contemplates a bounty, and that with the death of the beneficiary, the reason of the law ceasing, the law itself becomes a dead letter.

We must first inquire into the real nature of the right conferred in the text itself. We (here find the following language: “The latter (the survivor) has a right to take out of tho succession of the deceased what is called as the marital portion, that is, the fourth of the succession in fill property, if there be no children.” * * Does language, as plain and as unambiguous, bear any other construction but that which the words used import in their ordinary signification ? Can the language of the article bo made to mean anything else than the creation of a conditional forced heirship?

It cannot be made to mean otherwise than that the surviving spouse, left in necessitous circumstances at the death of his consort who has died rich, is vested at his option with the full ownership of one-fourth of the succession of the deceased, if there be no children.

Conceding, as the appellant contends, that the controlling object of the law-maker was thereby to provide the survivor with the means bene et honeste vivere, it appears clear to our minds from the language used that, so anxious and so eager was he to place that boon beyond the possibility of a doubt, or beyond the reach of discussion, that he did not take the pains to guard against the possibility, so strong in human events, of the death of tho survivor before he could realize tho benefit of the right thus conferred.

Having thus vested that one-fourth of tho succession in tho survivor in full property, the law-maker could not, without infringing on the established laws of descent and inheritance, have placed any restrictions to the full ownership which he there contemplated and actually created.

A very material distinction is made in the article between the case where there are no children and that in which there are children. Tn the latter case the marital portion consists only of the usufruct, but in the former it vests in full property. It is an axiom in jurisprudence that when the law has made no distinction, courts can make none. Is it not as true that when the law does make a clear distinction, courts must in duty observe it"? Our laws recognize no mode of abridging the full exercise of the right of ownership which they have once vested in any one.

It is not an unreasonable deduction from appellant’s argument that if the right of Piffet to the marital portion perished with him, it must then have been merely a life-time usufruct; whereas, under the very terms of the law, it was a right of full property. Does not that reasoning tend to abrogate or obliterate the clear distinction which the article has made between the two different tenures or titles of use and enjoyment under the right of the marital portion1?

The unmistaken tendency of our courts has been to interpret that provision according to the plain terms of the text, and hence the right to the marital portion in cases where there are no children has been designated as an inheritance. Ambercrombie vs. Caffray, 1 N. S. p. 1; Dunbar vs. Dunbar, 5 Ann. 158; Connor vs. Connor, 10 Ann. 440.

We therefore conclude that the right of J. B. Piffet to the marital portion, which he had judicially demanded, and which he was pressing when he was stricken by death, has been transmitted to his heirs at law.

IV.

Conceding for the sake of argument that Piffet, and through him his heirs, have established their rights to the fourth of the succession, subject to the deduction of the legacy, appellants contend that the amount of Piffet’s indebtedness to his wife, inventoried as above stated, at $05,382.37, and from which he was released in the will, should be included as a legacy and as si cli deducted from the marital portion.

Without undertaking to decide absolutely that such a testamentary disposition is not a legacy, which we think is the correct view, we hold that under the letter, as well as the spirit, of the Article 2382, such a release is not a legacy, the amount of which is to be deducted from the marital portion.

Under the interpretation advanced by appellants, circumstances of easy conception could in many eases entirely defeat the very object proposed by the enactment.

Such a circumstance is very nearly illustrated in this case. Under the judgment rendered below the amount of the marital fourth would be $87,911.38', and by subjecting it to deductions of the real legacy and of the indebtedness treated as a legacy, it would be reduced to $9,939.32, and it might be reduced to naught if it should happen that the indebtedness of the survivor was equal in amount to the fourth of the succession.

And thus the object of the law-maker in his attempt to place the survivor of a rich consort beyond the pangs of poverty and actual want would be entirely frustrated.

A legacy is defined to be “ a bequest or gift of goods or chattels by testament;” it has also been extended to include real estates. “ Bouvier.”

To every mind it carries the idea of a real affirmative advantage derived through the will or testament of a deceased person, and not the negative relief of being discharged from an obligation.

Speaking of the nature of the remission of a debt, Mareadé says distinctly that it is not a donation, because it transmits no right, but merely destroys a right in renouncing it. Marcadé, vol. 4, p. 598, & 787.

Coin-Delisle in his commentaries on donations and testaments holds the same doctrine. He says: “ La remise de la dette, méme faite nniquement pour obliger le débiteur, peut étre un acte de bienfaisance, mais ce n’est pas en soi une donation, á moins que ce ne soit un profit d’un successible qui doit rapporter á la suecession de son auteur tout ce qu’il en a recu directement ou indirectement.” P. 273, par. 14.

As the concluding words of the paragraph evidently refer to collations they suggest to our minds an analogy between the rights of an heir to be exempt from collating a remitted indebtedness which he owed to the ancestor, and that of the surviving spouse to deduct from the marital portion the amount of his indebtedness remitted in the will.

In the case of Austin vs. Palmer, 7 N. S. 20, the court dealt with a case in which the ancestor had gratuitously remitted a debt due to him by one of his children, and the court held the release good for the portion of the estate which the law leaves at the disposal of a parent.

It follows from that principle that if the creditor had not been held to'the legally disposable portion, and had been as free in the disposi_ tion of his property as was the case with Mrs. Piffet, the release would have been held as complete and unconditional.

Such is the remission with which wo are now concerned, and hence we hold that the indebtedness thus íeleased or discharged, forms no part of tbe legacy within the meaniug and intent of the provision of Article 2382.

In conclusion we note an argument made by appellants, grounded on the provisions contained in the marriage contract between Piffet and his wile.

It is contended that, by the stipulation of an entire separation of property, the spouses were mutually debarred of the right of claiming the marital portion. In view of the exceptional character of the legislation contained in the article of the Code, and of the sweeping provisions therein contained, manifestly intended to carry out a special object, we have not considered the argument as seiious, especially as to sustain it appellants were almost driven to the necessity.of denying that Mr. and Mrs. Piffet were husband and wife at ¡ill.

But the argument, even when strained to that extent, is fully met by tbe decision of this Court in the case of Geo vs. Thompson, 11 Ann. 657, in which the wife, although living separate from her husband under a decree of separation from bed and boaid, was allowed the marital portion.

Judgment affirmed.


author: Pochk, J.

text:
    No. 9826.
    Thomas J. Woodward vs. The American Exposition Railway Company.—Henry Weston, Intervenor.
    A railroad, constructed on soil not belonging to the owner of, or to the corporation which built the road, is movable property and as such liable to tbo law'regulating pledges on movables,
    The pledgee of a railroad may take legal possession, as required by the law on pledges through a third person, chosen by him and the pledgor.
    A party who is bound as endorser with others for the payment of a note, secured by pledge, is legally subrogated to all the rights of the pledgee by the payment of the note.
    A party whose materials, sold to another, were used in the construction of a woik, has no privilege on such work, because his materials were not sold to the owner or his agent, or his sub-contractor.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      H. M. Hudson, W. F, & I). O. Méllen and J. F. Hornor for Plaintiff and Appellee:
    A railroad constructed on the soil of another is movable personal, property; and a pledge thereof is governed by the law regulating the pledging of movables. 3 B. p. 166; C. Qa arts. 3140. 3152.

      The vendor of movables has a special privilege on the samo superior lo that of any creditor, except the lessor. C„ C. art. 32X7, No. 7; arts. 3227, 3263.
    Subrogation takes place by operation of law, “of right,” “for the benefit of him, who being bound with others, tor the payment of the debt, had an interest in discharging it.” C. C. art. 3249, No. 3.
    A privilege in favor of a furnisher of material for the construction of buildings or other works, exists on the same only when the materials have been sold by the furnisher to the owner of the work, a third person employed by him, his agent or sub-contractor, C. O. arts. 3249, No. 3, and 3272.

      Bravglm, Bn oh, JDinhelspicl & Hart for Intervenor and Appellant:
    Those who have supplied the owner, or other persons employed by the owner, or the agent of the owner, with materials of any kind for the construction of an edifice or other work are entitled to a privilege thereon. C. C. 3249.
    The general issue is waived by a plea of novation. Hennen’s Digest p. 1141.
    A conventional subrogation must be made at the time of payment. 15 Ann. 400 ; 24 Ann. 471.
    A contract of mandate may be tacit as well as express, and may be gathered from circumstances as well as from declarations. 8 Robinson 236; 14 Ann. 302 j 22 Ann. 496,
   The opinion of the Court was delivered by

Pochk, J.

This ease presents a contest between plaintiff and in - tervenor, both creditors of defendant company, for preference of payment out of the proceeds of portions of the railroad property.

Plaintiff is the holder of a note representing the balance of the purchase price of the rails and other iron appurtenances used in the construction of the road, which connected Canal street, in this city, with the grounds of the American Exposition.

The note, which had been executed by the defendant corporation in favor of the vendor of the materials referred to, had been endorsed by plaintiff and by other persons, and bad been secured by an act of pi edge, under which the railroad and all its appurtenances had been placed in the possession of a third party by mutual consent of tile contracting parties. After maturity of the note it was paid by plaintiff, who thus acquired the ownership and possession thereof. In his suit he claimed to liave been subrogated, by payment as endorser, to all the rights of the original holder of the note, including the vendor’s privilege on the materials sold by the latter, and the right of pledge over the entire property, against which he sued out a writ of sequestration.

Intervenor claims a privilege on that portion of the road in the construction of which, lumber, which he had sold, was used, sucli as bridges, cross-ties, etc., and he resists plaintiff’s right of pledge on that part of the work. He prosecutes this appeal from a judgment in favor of plaintiff.

The vendor’s and furnisher’s privilege claimed by intervenor, is resisted on the ground that his lumber was not sold to tbe defendant corporation, or to another person employed by the company, or by its agent or sub-contractor; but it is alleged that the lumber was purchased from intervenor by “Cummings & West,” a firm who had acquired certain privileges on the Exposition grounds, by which firm it had been sold to the Exposition, and in turn sold by the latter corporation to the defendant, by which it was used in the construction of the road.

The pivotal question involved in intervenor’s contested privilege hinges upon the fact of who was the purchaser of his lumber, in the direct sale made by him.

If it was purchased by the defendant or by a person employed by it, or by its agent or sub-contractor, his privilege must be enforced. C. C. art. 3249, see. 3.

But if the. lumber was purchased by “ Cummings & West, ” and from them through the Exposition it reached the defendant, the case is against him.

The notes which he holds as representing the purchase price of the lumber was executed by the Exposition management, and made payable to the order of “Cummings & West.”

That circumstance is conclusive proof that the lumber was not sold directly to the railway company; and it is prima facie evidence that the lumber had been sold by “Cummings & West” to the Exposition-

That presumption is strenuously resisted by intervenor, who contends that “Cummings & West” were merely intermediaries between the Exposition and himself in the negotiations which led to the contract of sale.

On this point the voluminous testimony in the record is decidedly conflicting, and fortunately the necessities of this case do not absolutely require a final adjudication thereof.

In the face of the overwhelming evidence showing that the lumber was once purchased and owned by the Exposition, by purchase, either from “Cummings & West” or from himself directly, intervenor abandons on appeal the contention that he had dealt in the premises directly with the railway company, but he relies on the theory that in their purchase of the lumber from him, the officers of the Exposition were in fact the agents of the defendant corporation.

From our reading of .the record we find that at the date of the purchase and delivery of the lumber in question, the railway company had not yet been created or organized, and that the officers then contemplated the construction of the raihoad at the cost, and for the use and benefit of the Exposition.

But tile plan was subsequently abandoned and a new and distinct corporation was organized, known as the American Exposition Railway Company, by which the road was built and operated, and to which the Exposition sold the lumber which it had acquired for the purpose of building- a railroad, and for which it obtained valuable consideration from the defendant company, purchaser.

These facts are effectively destructive of the pretension of intervenor, who is thus left without a vendor’s privilege, or the privilege of the furnisher of materials used in the construction of a work. As to the privilege set up by plaintiff on the whole road, it clearly results from the record and from the law applicable to the case.

As the railroad was constructed on the soil of another, it was movable property, and as such governed by the law regulating pledges on movables. State vs. Mexican Gulf Railroad Company, 3 Rob. 513.

Under the terms of the act of pledge, the creditor was legally put in possession of the thing given in pledge to him, by means of a third person agreed upon between the parties. C. C. 3152, 3162; Weems vs. Delta Moss Company, 33 Ann. 973.

As plaintiff was bound with others for the payment of the note, lie became by operation of law subrogated to all the rights of the original pledgee at the moment that he paid the note. C. C. 3249, No. 3.

In this connection, iutervenor makes the point that plaintiff must be defeated in his claims based on the act of pledge, because, in his answer to the petition of intervention, he rested his right thereto on a conventional subrogation executed in liis favor by the original pledgee several months after his payment of the note, on the'gronnd that the conventional subrogation, which should be made at tlie time of payment, was made, too late.to be of any avail to him in the premises.

It is true that such a subrogation was made, and that it was made too late; it is also true that, in his answer to iutervenor, plaintiff does claim relief thereunder, but this was simply cumula,tive pleading — and as such not destructive of the allegation in his original petition, wherein he correctly grounded his claim to the pledge by right of legal subrogation, and that, is the right which we herein sustain in his favor.

These views have led us to the conclusion that the district judge has done substantial justice to the parties in this litigation.

The judgment appealed from is, therefore, affirmed at appellant’s costs.


author: Todd, J.

text:
    No. 9827.
    Succession of James Cousley.—Opposition to Account of Administratrix.
    ■Whore tho proceeds of a salo of succession property exceed §2000 and tho surviving widow claims §1000 out of this fund on account of the privilege in favor of a widow in necessitous circumstances, which claim is contested by mortgage creditors, this Court has iurisdiction.
    "Where tho surviving widow assumes the payment of all the debts owing by the deceased and'takes possession of all the property left by him, and continues a mercantile business, in which the deceased was engaged, in tho same manner as when conducted by him, and applies the proceeds of all sales to the payment of the ordinary debts, sufficient to satisfy hoi privilege, she cannot afterward demand that a mortgage creditor holding in his hands the proceeds of the sale of tho mortgaged property, should contribute from that fund enough to satisfy her privilege.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Wynne Boyers and II. P. Part for the Administratrix, Appellant.

      T. Gilmore & Sons for Opponents and Appellees.
   The opinion of the Court was delivered by

Todd, J.

There is a suggestion in the counsel’s brief that this Court has no jurisdiction of the cause.

The controversy relates to tho distribution of the proceeds of succession property exceeding in amount $2000. This gives us jurisdiction. Renshaw vs. Stafford, 34 Ann. 1138.

Upon the death of James Cousley, who died intestate and without issue, his surviving widow retained possession of his property, which consisted of a lot in this city with a building thereon, which served as the residence of the deceased, and attached thereto was a storehouse, containing a small stock of groceries, and in which the deceased for many years had conducted his business as a grocer.

With the consent of the creditors, the widow continued tho business. She disposed of the stock on hand in the usual course of trade, and from time to time-replenished the same with her own means and credit. ■

She took this step at first without taking out any proceedings looking to an administiation of the succession, though an inventory of the effects left by the deceased had been taken at the instance of the principal creditor the day after his death. Some few weeks thereafter, however, the widow, after advising with counsel, applied to be appointed administratrix, and caused a regular inventory to be made.

She was appointed administratrix, but continued to conduct the business in the same manner as before, and without filing any tableau or procuring an order therefor, proceeded to apply the money realized to the payment, first, of the ordinary debts of the succession, and then to the interest of the mortgage debt in favor of Smith Bros. & Co., opponents.

In this wgy, after the lapse of three or more years, she succeeded in discharging all the ordinary debts of the succession, and also the interest accruing on the mortgage claim.

She caused the real property, which was all subject to the mortgage of the opponents, to be sold at probate sale, and it was adjudicated to the mortgagees for $3000 — less than the amount of their debt.

The amount of the adjudication was retained by them.

Finally the administratrix, probably, abandoning all hope of paying the debts in the manner she was proceeding, filed an account of her administration.

In this account she charged herself with the amounts she received from the sales of the movable property, and credited herself with the amount of the debts paid. She also claimed the $1000 privilege as a-widow in necessitous circumstances, and demanded that Smith Bros. & Co., the mortgage creditors, should contribute to the payment of this and other privileges out of the proceeds of the sale of the mortgage property, which, as stated, had been retained by them. The account was opposed by Smith Bros. & Co., and their opposition was maintained and judgment rendered disallowing the widow’s claim and rejecting the entire account, and it is from this judgment that the present appeal was taken.

We think the judgment was correct.

The sole dispute to be settled is between the widow, asserting her privilege for $1000, and the mortgage creditor on her demand to have her privilege made up out. of the proceeds of the sale of the mortgage property.

There is no doubt that the succession was insolvent and that the widow was left in necessitous circumstances, and had she proceeded promptly to administer the succession, and subjected it to a regular administration, and out of the proceeds of the property sold she had claimed the privilege in question, it would have been awarded her.

Considering, however, that she accepted the community, by taking possession of all its effects and continuing the business in which the deceased had been engaged, in her own personal right, and after assuming to pay the debts, and after applying the proceeds of the sale of the stock of goods and all the personal property to the payment of the. ordinary claims* which funds should have, been applied to the payment of the privileges, and among the first to her own, and after occupying for more than three years the dwelling and storehouse belonging to the succession, without paying or accounting for the rents, she cannot now be heard in her demand upon the mortgage creditors to yield up to her enough of the proceeds of the mortgaged property in their hands to pay her claim, when she has possessed the means, and could, by the proper application or imputation of those means, have satisfied her privilege without touching on the lights of these creditors,

Judgment affirmed.


author: Penner, J.

text:
    No. 9542.
    Yeager Milling Company vs. Henry T. Lawler.
    In a contract of sale on terms of credit, breach of the resolutory condition on the part of the buyer does not arise till the term of credit has expired, before which time an action to annul on this ground will not lie.
    Fraud, however, when established, vitiates the contract ab initio and is not dependent, for its assertion, upon the expiration of the term of credit.
    A representation of solvency on the part of the buyer is ordinarily implied in every application to purchase goods on credit; but it requires a wilfully false statement to that effect, as a fact and not as a mere opmion, to vitiate the contract; or else it. must appear that, at the date of the purchase, the buyer contemplated a swindle and did not intend or expect to pay for the goods.
    Ln this case no fraud is established such as to vitiate the sale, and the action of plaintiff to annul the sale before expiration of the terms of credit and sequestering the goods was premature.
    The sequestration having been wrongfully issued, defendant was entitled to actual damages which are assessed according to the peculiar circumstances of the case.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Singleton, Browne c6 Ghoale for Plaintiff and Appellee.

      J. O. Nixon, Jr., for Defendant and Appellant.

      Henry Denis, A. Bitot and Henry O. Miller for Intervenors and Appellees.
   The opinion of the Court was delivered by

Penner, J.

Plaintiff bad sold to defendant a large quantity of flour on credit, evidenced by the latter’s acceptances, amounting to $11,345, maturing at various dates in May, 1880.

Before the maturity of any of these acceptances, plaintiff, averring that the flour had been obtaiued by the defendant through fraud and misrepresentation, and that he was then making way with it, with the view of defrauding plaintiff, brought this suit to cancel and annul the sale, and obtained a writ of sequestration, under which 2352 barrels and 1500 sacks of flour were seized herein.

Part of the flour sequestered was in process of loading under shipment to Europe, and the bills of lading, therefore, had been advanced upon by the Citizens’ Bank to their value. The remainder had been pledged to the Hope Insurance Company and the Mechanics aud Traders’ Insurance Company, also to its value.

Those parties intervened in the case and bonded the flour on which their claims rested; and their claims were sustained by the final judgment of the Court, of which, in this respect, neither party complains.

Defendant moved to dissolve the sequestration on the ground, amongst others, that the affidavit on which it issued was untrue, and subsequently filed answer denying specifically the truth of plaintiff’s allegations, together with a reeonventional demand for $35,000 damages. Considerable testimony was taken on the rule to dissolve, but it was finally referred to the merits. Subsequently plaintiff filed a supplemental petition, representing that, in view of the claims of iutervcnors, it might prove impossible to recover the property sequestered, and praying for personal judgment against defendant for the price of the flour, the sale of which should not be annulled, and the same returned.

The judgment appealed from sustained the claims of the intervenofs, quashed and set aside the sequestration, gave judgment against the defendant for the price claimed, and rejected defendant’s recoilventional demand.

We think the court erred in rejecting the reeonventional demand.

There is no room here for the application of the resolutory condition implied in commutative contracts, which only takes effect when either of the parties has failed to comply with his engagements.” C. C. 2046. At the date of the sequestration the term of payment accorded to Lawler under the contract of sale had not expired, and therefore there was no breach of his obligation.

But there exist other causes for the avoidance of contracts, amongst which is fraud, which is defined in our Code to be the “cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain somo unjust advantages to the one party, or to cause an inconvenience or loss to the other.” C. C. 1847, 1881.

This vice, when established, destroys the contract ab initio and is not dependent for its assertion upon the expiration of the term allowed. Brull vs. Peets, 3 La. 282; Parmele vs. McLaughlin, 9 La. 436; St. John vs. Sanderson, 15 La. 365; Galbraith vs. Davis, 3 Ann. 95; Cook vs. West, 3 Rob. 332.

The party alleging fraud carries the burden of proving it. C. C. 1848.

The only fraud alleged in this case is that, before obtaining the credit, defendant falsely and with intent to defraud represented himself to be solvent, knowing that he was not so.

A representation of solvency is ordinarily implied in every application to buy merchandise on terms of credit; but it requires a wilfully false statement to that effect, as a fact, and not as a mere ojnnion which may be innocently mistaken, to vitiate the contract. Morse vs. Shaw, 124 Mass. 59. Or else, it must appear that, at the date of the purchase, the buyer contemplated a swindle and did not intend or expect to pay for them. Benjamin on Sale, sec. 440, note (e) and numerous authorities cited.

The evidence here does not satisfy us that Lawler had, at the time of sale, any fraudulent purpose, or made any such misrepresentation as would invalidate the sale.

The only misrepresentation sought to be proved is that, in February, 1886, he had made certain statements to the manager of plaintiff to the effect “that he had a plantation, a sugar plantation, and his residence in the city, and that he was in a better condition now than he was when we had trusted him for a larger amount in the past; that he had always paid what ho owed, and that we were running no risk in selling him anything that he wanted to buy; that he was perfectly able, and that we were dealing with an honest man; * * that there was no risk, as lie had given up his expensive store and reduced his expenses in every way, was making money and was able to take care of all his liabilities.”

The statement rests on the testimony of a single witness, and is contradicted by Lawler, who gives quite a different account of the interview. Moreover, so far as the statements of fact are concerned, they are substantially true. He did own the plantation and residence; had always met his commercial obligations, and actually continued to do so until after the institution of this very suit; and we believe, honestly considered that he was solvent, and fully intended and expected at the time of those subsequent purchases to pay for the goods.

Nor does tho evidence in this record make it clear, by any means, that Lawler was actually insolvent. His use of the flour purchased, in selling, shipping aud pledging it, was entirely in accordance with the usages and necessities of trade, for the purpose of carrying on his business, and nothing stamps it with any sinister character. We conclude, therefore, that plaintiff’s sequestration was entirely unfounded and unlawful, and that it was properly dissolved. From this it follows, as an indisputable legal sequence, that defendant is entitled to the damage actually occasioned by the seizure. Cretin vs. Levy, 37 Ann. 182; Roos vs. Goldman, 36 Ann. 132; Block vs. Meyers, 35 Ann. 220; Barrimoro vs. M. Feely, 32 Ann. 1182.

We are not, however, disposed to attach weight to the exaggerated estimate of injury set forth by defendant.

We are quite convinced that, without indulgence from plaintiff and other creditors, defendant’s commercial failure was inevitable, and that tho loss of business and injury to his credit must have resulted in any event. Other claims of damage come, with bad grace, from a debtor, who, after purchasing the goods of plaintiff on credit, and having availed himself of their full value, has failed to pay for them. It was his duty, however, to himself aud to those from whom he had obtained advances on the goods, to contest and set aside the sequestration, and for his counsel fees aud expenses in this behalf, as distinguished from the general defense of tho suit itself, he is entitled to be recouped. We will fix the amount at five hundred dollars for which ho should have had judgment on his reconventional demand.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reversing that part thereof which rejects the reconventional demand, and by giving judgment thereon in favor of defendant and against the plaintiff for the sum of five hundred dollars, with legal interest from the date of judgment in the lower court; and that, in other respects, tho same be affirmed, plaintiff to pay costs of this appeal.


author: Watkins, J.

text:
    No. 9824.
    Mohr, Hanneman & Co. vs. Ferdinand Marks.
    Tho judgment of court awarding an insolvent a discharge from his debts has no other or further effect than one homologating the proces verbal of the proceedings of the meeting of his creditors granting the discharge.
    The creditors are called before a notary by summonses issued pursuant to an order of court.
    This is not a technical citation.
    Proceedings in matters of insolvency arc of a summary character.

      Notwithstanding the exclusion of yaml testimony lor the purpose ot‘ correcting, amending or supplementing the return of the sheriff upon a citation, the party urging it as an objection will he estopped, if he has previously introduced parol testimony on the subject.
    PPEAL from'the Civil District Court for the Parish of Orleans, Tlssot, J.

      J. O. Mooon, Jr., for Plaintiffs and Appellees.

      Brmiylvn, Bucle, Dinleelspiel & Hart for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiffs, as judgment creditors of the insolvent defendant, have brought this direct action against him, to have annulled and declared of no effect, the proceedings taken by him, under the State insolvent law, and whereby he claims to have been duly and legally discharged from the claims and demands of his creditors against him.

They allege that said proceedings are null and void and of no effect, in respect to their judgment, for the, following reasons, viz:

1st. That they received no notice whatever of same.

2d. That the proees verbal of the proceedings of the meeting of the creditors is incorrect in reciting “ that Ferdinand Marks was granted a discharge by his creditors.”

That the fact is, as will appear from an inspection of the schedule and tlieproees verbal, that the majority in number and amount of the creditors did not vote for his discharge.

They pray judgment decreeing the. nullity of the certificate and proees verbal of the notary, and that they are. entitled to proceed with the execution of their judgment against the defendant.

The defendant tendered the peremptory exception of no cause of action, because the suit is directed against the proees verbal of the notary, and not against the formal decree of the court discharging the. insolvent.

We do not regard the objection as well taken. The judgment has no other or further effect than one of homologation of the proceedings of the creditors before the notary. It is predicated upon the proceedings of the creditors and evidences their regularity only.

IT.

In answer the defendant pleads his discharge, which he avers was perfectly regular aud legal and operates his absolute release from the plaintiff’s judgment, and that same is a complete bar to any further proceedings thereon.

He represents that upon tlie schedule of his debts the plaintiff’s name and claim were entered.

That all the creditors, whose, names appear thereon — including plaintiffs — were duly summoned and notified of his surrender and proceedings for discharge.

But if the plaintiffs were not notified, it was the fa'iilt of the sheriff, whom they call in warranty.

The only question that is insisted on here is the absence of any summons and the want of notice to them of the proceedings for defendant’s discharge.

I.

The law provides that “in all the deliberations which shall take place between the creditors, either for the choice of syndic or for the sale or disposal of the property surrendered, or for any other object relative to the interest of the mass of the creditors, the opinion of the majority of the creditors in number and amount shall prevail,” etc. Rev. Stats., sec. 1799; R. C. C. 2177.

“A cession of property discharges all the debts which the debtor placed on his hilan ’’ * provided a majority of his creditors in number, and who are also creditors for more than half of the whole sum due by him, agree to such discharge.” R. C. C. 2177.

The meeting of creditors is called at the office of some notary, by order of the judge, “at which meeting the creditors shall be summoned to attend by process issued from the court ” if the creditors reside in the parish, “ or hy letters addreessed to them by the notary, if they are not residing in the parish.”

Those residing out of the State are not summoned to'the meeting. They are represented hy an attorney appointed hy the judge to represent them. R. C. C. 3087, 3088.

insolvency proceedings are summary in their character and carried on in chambers out of term, time and before a notary, and without the observance of the strict formalities required in ordinary cases. ’ C. P. 38, 755.

Hence the law provides that the creditors “ shall be summoned to attend by process issued from the court.” R. C. C. 3087.

Formal citation is not required as in ordinary suits. C. P. 170.

There is no form prescribed for the summons, nor for the particular manner of service thereof or the return thereon, or what it shall contain.

This summons has been treated as a citation in the opinions of some of our predecessors, or as having the effect of a citation.

In Barnbridge vs. Clay, 3 N. S. 266, they say : “ To prevent judicial pursuit by creditors, it is necessary that they should be cited in the judo de concurso. * * *

“ In the case now under consideration, it is not shown that the plaintiff had any Icind of notice of the proceedings carried on by the defendant in the suit against his creditors.”

Tn Thomas vs. Breedlove, 6 La. 577, they say: “We lay it down as a first principle of our jurisprudence that citation to a defendant, or something which the law prescribes as an equivalent, is necessary to the validity of a judgment. By express statutory provisions of the State, citation to the creditors in a concurso is required. s *

“ The article of the Code requires that creditors residing within the parish, when the meeting may be called, should be summoned to attend by process issued from the court holding cognizance of the concurso

In Breedlove vs. Robison, 7 Peters, 434, the Supreme Court in deciding a case arising under the Louisiana insolvent law, say:

“It is unquestionable that summary proceedings of this description must be regular, and that their regularity must be shown by the party who relied upon them. Notice to the creditors is material, and the law prescribes that notice and defines it. * * * Personal notice must be given to a resident within the parish, by proces; to a nonresident, by a letter from the notary. The law decrees this notice indispensable, and the court cannot dispense with it. Por want of it the judgment of discharge was no bar to this action.”

It was an ordinary suit to recover judgment on a promissory note.

This doctrine was affirmed in Haydel vs. Girod, 10 Peters 284.

If then the plaintiff did not have the requisite notice or summons to attend tiie meeting of defendant’s’creditors, their proceedings cannot operate a bar to this suit. 20 Ann. 864, Burdon vs. His Creditors.

II.

The record of the defendant’s insolvency proceedings does not affirmatively show’ that the plaintiffs were notified.

The defendant offered to show by parole testimony that in truth and fact the plaintiffs had been summoned, but this kind of evidence was objected to, and the objection being sustained the defendant’s counsel retained a bill of exceptions.

The grounds of objection v'ere substantially to the effect that service of citation must appear of record, and no other evidence than the sheriff’s return can be received to prove it; that a sheriff’s return on a citation cannot be amended or corrected after judgment, so as to cure nullities resulting- from a defective citation ; that parol proof cannot. be heard as a substitute for the return of the sheriff.

The authorities are to that effect. 3 N. S. 686, Skillman vs. Jones; 10 R. 26, Bank vs. Elam; 11 Ann. 252 Webb vs. Coons; 1 R. 30, Watson vs. Alexander; 21 Ann. 26, 682.

But we have already shown in the preceding paragraph that the one in contemxdation of insolvency proceedings was not a technical citation, hence the technical rules governing it do not apply strictly.

Even if it were, the plaintiffs themselves introduced parol evidence on the subject in the opening of their case. They introduced Mr. E. M. Hansel, of plaintiffs’ firm, and x>ropounded to him this:

Question — “ Did you or your firm ever'receivc any notice to attend a meeting of the creditors of Ferdinand Marks, by the Civil District Court of the parish of Orleans

Answer — “No, sir.”

They introduced Mr. A. II. Ilanneman and asked him the same question, and received the same answer.

Upon the evidence of those two .witnesses, and some documentary evidence the xdaintiffs rested their case. By introducing parol testimony to show the absence of notice to them, and the want of service upon them, of any process, whereby to acquaint them with the fact that the defendant had apx>lied for a discharge, and had convened his creditors for that purpose, they opened the door for the introduction by defendant of like evidence on the same subject. We think the defendant’s bill well taken.

It is, therefore, ordered, adjudged and decreed that, the judgment appealed from be avoided, annulled and reversed, and this cause he remanded for the purpose of enabling the parties to introduce the rejected evidence.

The costs of appeal are taxed against the xdniiitiffs and appellees; the costs of the lower court to await final judgment therein.

Judgment reversed and case remanded.


author: Pociié, J.

text:
    No. 9896.
    Successions of John Keller and Wife.
    A bond furnished in the amount fixed by the order of the court for a suspensive appeal which alone was prayed for, hut not furnished within the delay prescribed by law for a suspensive appeal, is sufficient to sustain the appeal as devolutive.
    The order, although restricted in terms to a suspensive, covers any appeal, the character of the same, as suspensive or devolutive, being determined by the amount of the bond fixed and furnished, and hy the time at which the bond is liled.

      The correctness or regularity of the judgment of a competent- court, mailing the appointment of an undertutor, cannot be questioned or reviewed collaterally, even by the court which had made the appointment. His appointment is full proof of his capacity and has effect on third persons until set aside by appeal or in an action of nullity.
    Hence, an adjudicate© of succession property cannot set up the nullity of the proceedings leading to the sale, on the ground of the alleged illegality of the appointment of the . nndertutor who presided over the family meeting which recommended the sale, if the record shows that he was appointed by a court of competent jurisdiction.
    APPEAL from the Civil District Court for t-lie Parish of Orleans. Monroe, J.
    IF. O. Hart and G. B. Buck for the Appellant.

      JE. J. Wenek for the Appellee.
   Tlie opinion of t-lie Court was delivered by

Pociié, J.

Motion to Dismiss.

Tlie grounds of the motion are that the prayer, tlie order, and the-bond of appeal were for a suspensive appeal and that the bond was not filed witliin the time required for such an appeal; and that there was no prayer, and there is no order, for a devolutive appeal.

Appellees rely on tlie decision in Reed vs. Creditors, 37 Ann. 907, in which tlie appeal was dismissed on similar grounds.

In that case it was held that under a prayer and an order for a suspensive appeal, a bond not filed witliin the prescribed delays would not sustain a devolutive appeal, because the order was exclusively for a suspensive appeal.

At the earnest request of appellant's counsel in the instant ease, we have made a thorough examination of our jurisprudence on this point, and we leave the investigation with the conclusion that the weight of authority conflicts with tlie rule in Reed’s case, and that the latter must, therefore, not be followed.

The preponderance of the decisions, turning upon this contention, is to the effect that the nature or character of the appeal is not determined by the prayer for, or tlie order of, appeal, but by the amount of tlie bond and by the time at which it is furnished.

If the prayer and the order contemplate a suspensive appeal, and tlie bond, in tlie amount fixed by tlie order, is furnished within the delay prescribed bj' law, the appeal is. suspensive.

But where both the prayer and the order are for a suspensive appeal, if the amount of the bond furnished, in compliance with the order of tlie court, is insufficient in amount for a suspensive appeal, or if it be not filed witliin tlie prescribed delay for such an a-ppeal, but is filed within the year, the appeal will be sustained as devolutive only.

We yield otir previous convictions to the weight of authority under numerous opinions which, in the midst of a serious conflict, lead to satisfactory conclusions. 5 La. 129, Poydras vs. Pattin; 3 Rob. 63, Tipton vs. Crow; 8 Rob. 42, Brode vs. Ins. Co.; 9 Rob. 185, Jones vs. Frellson; 2 Ann. 462, Balph vs. Hoggutt; 2 Ann. 754, Lewis vs. Splane; 4 Ann. 534, Ludeling vs. Frellson; 20 Ann. 340, Succession of Armat; 27 Ann. 97, Edgerly vs. Smith.

Under the views which prevail in these cases, the present appeal must be sustained as devolutive.

It is therefore ordered that the motion to dismiss herein made be overruled.

On Ri;i,h to Connor, the Ad.judicatee of Succession Profeetv to Accept Title.

The adjudicatee at the succession sale of a piece of immovable property depending upon these successions lias taken this appeal from a judgment condemning him to comply with the terms of the bid made by him at that sale.

1-Iis resistance is grounded on the alleged illegal composition of the family meeting which deliberated in behalf of the minor heirs of said successions, for the purpose of recommending and of fixing the terms and conditions of the sale.

That illegality is attributed to the fact that the undertutor of the minors participated in the proceedings of the family meeting as a member thereof, instead of presiding over the same and approving its deliberations as required by law.

The facts, as shown by the record, arc : that at the death of his wife John Keller was qualified as natural tutor of the minor children issue of the marriage, with Louis Imholte as nndertutor.

At the death o’f John Keller, in July, 1886, the two successions were consolidated, and A. G. Ricks took charge of the same, as testamentary executor of the husband and as testamentary tutor of the minors, of whom Joseph Yoegtle was appointed and qualified as undertutor. At the family meeting which recommended the sale under discussion, Joseph Yoegtle acted as undertutor, and Joseph Imholte acted as a member, with seven other relatives and friends of the minors.

Appellant makes the point that, as the functions of the undertutor, Imholte, who had been appointed in September, 1883, did not terminate with the natural tutorship at the death of John Keller, the subsequent appointment in July, 1886, of Joseph. Voegtle, as undertufcor of the same minors, was unauthorized, illegal, null and void, thus vitiating the deliberations of the family meeting over which he presided as undertutor.

But the record shows, and appellant does not deny, that the court which appointed Voegtle was fully competent, and hence his proposition involves him in a collateral attack of the judgment of a court of competent jurisdiction, making the appointment of an undertutor.

Now, one of the most familiar rules of our jurisprudence is to the effect that the correctness or regularity of a judgment of a competent court appointing a tutor cannot be collaterally reviewed or questioned, even by the court which has made the appointment.

Out of numerous decisions to be found on the subject in our reports, we have culled the following as bearing more directly on the point: Succession of Winn, 3 Rob. 305; Hoover vs. Sellers, 5 Ann. 182; Thibodeaux vs. Thibodeaux, 5 Ann. 598; Martin vs. Jones, 12 Ann. 168; Tutorship of Hughes, 13 Ann. 380; Caillebeau vs. Ingrouff, 14 Ann. 623.

The rule has been applied to the case of a foreign tutor or guardian, (12 Ann. 168), and it has been extended to the presumption that the-tutor, shown to have been appointed bj a competent court, had been qualified, in the absence of direct proof of that important fact. (5 Ann. 182.)

It requires no argument to show that the same rule must govern in the case of the appointment of an undertutor, whose functions are not less sacred, important and indispensable in the interests of minors than those of the tutor.

It may be, as suggested by appellant, that the appointment of Voegtle as undertutor* of the Keller minors was unauthorized and illegal, but that is the question which cannot be investigated in a collateral manner. His appointment by a court of competent jurisdiction is full proof of his capacity, and has effect against third persons until set aside by appeal or in an action of nullity.

As this alleged illegality was the sole defect urged against the proceedings which are the foundation of the adjudication herein resisted by appellant, it is clear to our minds that the sale was correctly sustained by the district court.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9892.
    Factors and Traders’ Insurance Company vs. The New Harbor Protection Company et als.
    "When a judgment isrendered, interpreting a former appealable judgment byincorporatingin • it a feature which, if it had been expressly contained therein, would have supported an appeal to this Court, such latter judgment will also be appealable.
    Other grounds of motion untenable.
    The judgment of a district court which lias been signed can only be revised or altered in the modes provided by law. Under the guise of interpreting the judgment, the judge cannot, after signature, make a substantial change in the judgment itself oil a mere rule for that purpose.
    Interest cannot be collected on a judgment for money which is silent as to interest.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Nicholls cC- Carroll for Plaintiff and Appellant.

      2[. 21. Cohen, T. Gilmore tí; Sons for Merchants Insurance Company and Harbor Protection Company Defendant and Appellee.

      Braughn, Buch, JDinTcelspeil cC- Hart for People’s Insurance Company, Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The motion is based on three grounds, viz :

1st. Want of jurisdiction, because of insufficiency of amount involved. The suit is one for partition, involving the distribution of a fund exceeding sixteen thousand dollars. A final judgment was rendered, homolgating the report of the notary to whom the partition was referred.

After said judgment had become final, a difference arose as to the interpretation thereof,' two of the parties claiming that they were entitled to receive interest on their claims, although in forming the passive mass, and in the tableau of distribution tlieir claims bad been extended and allowed only to the amount of the principal thereof.

. These parties took a rule on the others interested to show cause why, under said judgment, as properly interpreted, they should not be paid the amount of said interest. After contradictory pleading and hearing judgment was rendered making the rule absolute, from which judgment the present appeal has been taken.

Had the original judgment expressly allowed this interest, the other parties could undoubtedly have appealed to this court by reason of the amount of the fund to be distributed. We see not why they should not have the same right when the allowance is thus subsequently made in interpreting the judgment, the very question being whether the subsequent judgment is a proper interpretation of the former one, or is an alteration thereof, which the court had no authority to make. It is very certain that the allowance of interest thus made affects the result of the entire*distribution of a fund largely exceeding $2000, and we think our jurisdiction is properly invoked.

2d. Insufficiency of the bond of appeal.

The amount of the bond was fixed in the order of apx>cal, and is, in any event, sufficient for a devolutive appeal.

3d. Absence from the record of any extract from rhe minutes, showing that the motion and order for appeal was granted by the court-. The motion and order are copied in the record, and under certiorari the extract from the minutes has been supplied.

Motion denied.

Ox the Merits.

This is a partition suit, which was referred to Castell, notary, who proceeded to make the same as directed by law.

He first formed the active mass, amounting to $16,550.

He then recited the claims presented by various creditors, most of whom were holdo s of interest-bearing notes, as stated in bis recital of their claims.

He then proceeded to form the passive mass; but in so doing he allowed the claimants only the principal of their notes without interest. He thus footed up the passive mass at the sum of $7224.30, which he deducted from the active mass, leaving a sum of $9325.70, which he divided pro rata among the parties in interest, assigning to each a specified sum of money. When this report was presented in the court sundry oppositions were filed thereto. Amongst others, one was filed by the People’s Insurance Company, one of the note-holders, the principal of whose claim alone had been carried by the notary into the passive mass, and who claimed that the report should be amended by allowing the interest also. This opposition was sustained by the judgment of the court. None of the other note-holders made any opposition on this ground; but, on the contrary, two of them, the Merchants’ Insurance Company and the Harbor Protection Company, filed a motion to homologate the report so far as not opposed, and obtain an order to that effect.

After hearing, the judge rendered final judgment, dismissing all oppositions except that of the People’s Insurance Company, which was allowed its interest as claimed, homologating the report as thus amended, and directing that the proceeds be distributed in accordance therewith.”

This judgment was signed, became dual, and lias not been appealed from. Thereafter two of the note-holders, the Merchants’ Insurance Company and the Harbor Protection Company, took a’ rule upon the stake-holder of the fund to be distributed, the Crescent Insurance Company, to show cause why they should not be paid interest upon their notes, on the ground that such was the proper and legal interpretation of the notarial act of partition and judgment homologating the same.

The judge a tpio rendered judgment making the rule absolute, from which this appeal is taken. We can discover no possible room for misconception as to the true meaning of the notarial partition and the judgment homologating the same, especially when viewed in connection with the opposition of the People’s Insurance and the amendment made in accordance with its prayer.

The People’s Insurance Company stood precisely in the same case with complaining note-holders. It saw that it was allowed no interest ■on its notes and opposed the homologation on that ground; and its opposition was sustained and the notarial partition amended by allowing such interest. The Merchants' Insurance Company and the Harbor Protection Company, with this opposition on file, far from seeking a like relief for themselves, actually moved to have the tableau homologated so far as not opposed.

The judgment appealed from, under the guise of a professed interpretation, is really an amendment and alteration of the original judgment, in clear violation of the laws on that subject. C. P. 547, 548, 556.

It is perfectly plain that tlie judgment failed to allow interest upon the notes, and we have held, on most careful consideration, that interest cannot he collected on a judgment which is silent as to interest. Succ’n of Anderson, 33 Ann. 581.

If there was error, the complaining creditors have themselves to blame in not following tlie example set them by their fellow-creditor.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the rule herein taken by the Merchants’ Mutual Insurance Company and the Harbor Protection Company he dismissed at their cost in both courts.


author: Bermudez, C. J.

text:
    No. 9819.
    Allen, Bush & West vs. S. B. Steers.
    A contract made by parties, who are commission merchants and factors, for the storage of cotton assigned to .them, during a certain period and at a stated price per bale, must be viewed as entered into for thei* own account and not for that of their customers, although it may be that they charge for such storage and other items a price per bale including a rate higher for the storage.
    Such parties could not shirk responsibility in a suit against them for unpaid storage, by saying that the contract was not entered into by them for tbeir own account, but for that of their customers. As they could be held liable, they have a right to sue for damages sustained by them, in case of breach of contract, specially the difference between the rate of storage agreed on and that paid.
    A right to claim damages for breach of contract, remains unrestricted, in the absence of qualification in the contract and can be exercised so as to include all injury sustained, whether foreseen or not.
    A putting in default would be a vain ceremony and unneecessary, in presence of an acknowledged inability to perform.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Alfred Golcllhwaite, for Plaintiffs and Appellants:
    Factors and commission merchants are entrusted with the possession and control of cotton consigned to them for sale, and have a speecial property in said cotton, and are treated as onwers in contracts made by them with third persons. Russell vs. Factors, 252-6, 234; Story on Agency, Sections lli, 1J2 and 401; Cowper’s Report, 254; llAdol. &. Ellis, 549 ; Smith on Mercantile Law, p. 77; Paley on Principal and Agent, p. 13.
    In contracts made with third persons, there is no privity between their patrons and such third persons, unless the contracts are made for the benefit of the patrons, or their names disclosed, so as to create the relation of principal and agent. 68 Y. 494.
    When there is an acknowledged Inability on the part of defendant to perform bis contract, a putting in mora is not necessary. 14 Ann. 81; 34 Ann. 211; 37 Ann. 470; 7 Martin, O. S., 218; 8 La. 522 ; 9 Rob. 377; 2 Ann. 957.

      Kennard, Howe & Prentiss for Defendant and Appellee :
    Plaintiffs sue for their own interest, and in order to recover must show damage to themselves. As factors or commission merchants, they are mandataries and not owners, and on the face of the pleadings and testimony have no interest to recover in this case. The “ special property,” they assert in this case, is only a possessory right, which may be defended for certain purposes and in certain ways, but does not support tbeir claim herein. 16 Ann. 241; 11 Ann. 218; 37 Ann. 803; 35 Ann. 1115.
    The facts of the case discussed, which show that no contract was entered into.
    Where the violation oí a contract has been passive, a putting in default is a necessary prerequisite to a suit for damages. C. C. 1931; 37 Ann. 661.
    Only such damages can be recovered as were in the contemplation of the parties at the time the contract was entered into, or may reasonably be supposed to have been contemplated by them. Pothier on Obligations, p, 161, (English translations); (J. O. 1934, Ffo. 1; Field on Damages, Section 252.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit in damages for breach of contract to store cotton, during a certain period, at a stated rate per bale.

The injury sustained is fixed at 8 ceiU‘' per bale — the difference between the rate agreed upon (42) and 'ilrát actually paid (50) on 31,401 bales.

The defense is a general denial; but specially, that the plaintiffs have no interest at stake; that there was no contract entered into; that, in any event, defendant was not hi default; that, even then, the damages claimed were not in the contemplation of the parties at the date of contract.

From a judgment rejecting their demand, the plaintiffs have appealed.

T.

On the face of the petition, the plaintiffs have shown an interest at stake, therefore a standing in court. They aver that they have made the contract with defendant, who has failed to comply with it and who-in consequence has caused damages claimed, for which he is liable.

It.is true, that they aver that they are commission merchants and factors; but that circumstance was not an essential element for their recovery and it cannot be used as a weapon to defeat their claim. The plaintiffs might have omitted setting forth that fact and still have a right of action, for they do not allege that they made the contract for account of others. They state the 'nature of their business, possibly in order to establish more particularly the importance of their relation with the defendant.

They say that they contracted ; that means for their own account, with the defendant and that he failed to perform. They would not have contracted otherwise, for it is certain that defendant would not have entered with them, into a contract, for account of those whose business they did and. whom he did not know. lie contracted with the plaintiffs and had he stored, and had the storage not been paid, it is not credible, that he would have looked to any one else, for payment, but the plaintiffs. These could not have shirked responsibility by saying that they had contracted for others, so they may claim from him.

The case is not germane to that of Corral, 37 Ann. 803, in which this Court held, that a ship agent cannot recover damages, charged to-have been caused to vessels consigned to him, on account of overcharges on towage, when the amounts overcharged were paid by the owners, or charterers of the vessels, themselves.

Neither the petition, nor the evidence in this case, shows that the damages claimed here, or the eighty cents per bale, were paid by the consignors of the cotton to the plaintiffs. The proof, on the contrary, is that tlie difference which is claimed as damages sustained, was paid by the plaintiffs out of their own money.

It must have been and actually was, a matter of perfect indifference to the defendant, what charges the plaintiffs would make to their customers, for the disposal of their cotton. The plaintiffs could charge more or less than 67 cents per bale, and in neither event would the defendant make or lose. The plaintiffs were the only ones concerned in the profit or loss.

The recourse of Ihe defendant for the 42 cents per bale, could have been alone against the plaintiffs and in no way against their customers whom they did not know and who never were disclosed.

II.

An attentive reading of the scattering testimony offered on the trial as well as of the documentary evidence, the despatch and the correspondence, and the order of delivery, leaves a forcible impression on the mind, amounting to conviction, that the alleged contract was actually entered into, between the plaintiffs and the defendant, namely, that some time prior to September 1,1884, the plaintiffs and defendant had agreed that the latter would store all the cotton which the plaintiffs would receive, from that date to 1st of September following, 1885, at 42 cents per bale; that the defendant proved unable to store the cotton, when received, and that the plaintiffs had to make arrangements with another party for the storage, but at a higher rate, 50 cents per bale, which was paid on 31,401 bales which were stored by said party.

The only testimony offered to negative that adduced by the plaintiff's, is that of the defendant, who, withal, admits the agreement, but with the qualification, that he would agree to store, provided lie would be able to make arrangements to store, as lie had not then enough space to undertake an absolute obligation to store all of plaintiffs’ cotton.

It does not enter 'in the order of probabilities that the plaintiff's would have accepted any such terms, as it is manifest that they would thereby have exposed themselves to much contrariety, loss and injury.

It is perhaps true that the defendant was not at the time, in a condition to receive a large quantity of cotton ; but he induced the plaintiffs to believe, and they acted on his representations, that he would arrange with others to store their cotton temporarily, until he, the defendant had become ready, that is, procured the place and put up his compressing apparatux. If he failed to make those arrangements, or if having made them, they were not kept and if the plaintiffs have sustained injury in paying a higher rate, it is more than clear and nothing but right that he be bound to repair the damage which he had thus occasioned.

111.

It was unnecessary to put the defendant in default. His refusal or acknowledged inability to receive the cotton, dispensed with any such putting in default, if any was necessary.

IV.

There is nothing to show that the parties at the time the agreement was entered into, considered the possibility of a breach of the contract, or restricted the right to recover damages in case of such breach.

Non-performance by the defendant of his undertaking, justifies the claim in damages which is brought and proved against him.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and adjudged that the plaintiffs, Allen, WTest & Bush, recover of the defendant, S. B. Steers, the sum of twenty-five hundred and twelve dollars and eight cents, $2,512.08, with legal interest from judicial demand till paid, and costs in both courts.