author: Eustis, C. J.

text:
    John Breen v. Charles Schmidt.
    Where the purchaser at auction of real property deposits the price with the notary before the act of saléis completed, the money so deposited is at the risk of the purchaser. C. P. 407. C. C. 2163.
    But if the vendor consents to consider the money so deposited as a payment, it is at bis risk.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiff, contended:
    The counsel for the defendant asks “to whom did this money belong after it had been deposited; to Breen or to Schmidt?” Let his own client answer.-..-Is his clientin-the habit of taking money that don’t belong to him? Is he in the habit of calling on notaries to get the money deposited with them to pay his notes when they fall due? Why did he call on the notary for this money? Let him speak for himself. He knew he had sold the property; he knew Breen had purchased it; he also knew that Breen had deposited the cash payment with the notary, with his consent and for his benefit; and yet he modestly enough, in the face of his own default and with the property incumbered with mortgages, wishes to take the money out of the hands of the notary. What would be thought of a notary who would pay money to a vendor who had neither completed his title nor signed the act ? And yet the counsel, with scarce less modesty than his client, attempts to use this fact as an argument against the plaintiff; for, says he, “ besides the refusal to give him (Schmidt) any part of-the money, clearly shows that the deposit was not. held for the benefit of Schmidt, and consequently not at his risk.” The duty of Breen was plain, to wit, to deposit with the notary the cash paymebt, to furnish his notes and sign the- act, all of which he faithfully did. The duty of Schmidt was equally plain, to wit, to transfer the property unincumbered and sign the act of sale. Neither of which requirements did he comply with. All of this controversy has grown out of Schmidt's own default and acts. He selected his auctioneer; he selected his notary; he failed to complete his title, and has not offer.ed to complete it to this day ; and he assented to the cash payment being deposited with the notary. Now, at the time of the conversation spoken of in Latham's testimony, the money had not been deposited with the .notary. Breen and Latham were both pressing Schmidt to complete his title ; and Breen put the question direct to Schmidt “ to whom shall I pay this money, to you or who?” Schmidt answered him, and said “it made no difference whether he paid it to him or to the notary.” Now Schmidt, knowing that he had not completed his title, had not the assurance to ask him directly to pay it to him, but he certainly did give him the option of paying it to the notary; and to make it perfectly conclusive that Schmidt meant that it should be deposited with the notary for his account, as soon as he found out that Breen had handed the money to the notary, he went to him and demanded a portion of it to meet a note falling due that day ; which the notary prudently declined.
    The counsel for the defendant says: “ There can be no difference of opinion as to the rule of law on the subject; that art. 2134, C. C., provides, ‘ the payment must be made to the creditor, or to some person having a power from him to receive it,’ ” &c. We do not differ with the gentleman as to the law; but he will pardon us if we draw conclusions different from his own in applying the law to this case. We think that the notary in this case had authority from Schmidt to receive the money; and if he had not authority to receive it, Schmidt ratified the payment to him by demanding it as his own after it had been paid.
    The counsel’s professional sensibilities appear to be painfully shocked by the unscientific expressions of Latham. That a notaiy’s clerk should not be technically correct in expressing himself in legal phraseology is not very wonderful. But let us see, after all, whether he is not more correct than the defendant’s counsel. The notary was unquestionably, in this case, of the defendant’s own selection, because it was advertised in the newspapers, of which the defendant must have had notice, and was followed up by the business of recalling the act being entrusted to him. Now, what had the notary a right to demand from the vendee? Why, that he should furnish his cash payment, give his note and sign the act. The furnishing the cash did not constitute the payment, nor his giving his notes; neither did his signing the act, but all three together. The art. 2127, C. C., defines what a payment is, to wit, “ by payment is meant not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do.”
    It is contended, however, that the argument in regard to the payment is all wrong, “but it is obvious that the true point of view to be taken of the case does not present a question of payment, but of deposit.” Let us see whether the gentleman is more fortunate in his understanding of the contract of deposit. Again, we refer to the code, art. 2897 says, “A deposit in general is an act by which a person receives the property of another, binding himself to preserve it and return it in kind.” Now, will it be seriously contended that the notary received this money, binding himself to preserve it and return it in kind? Moreover, a deposit is essentially gratuitous, and we all know that notaries charge for their services in passing acts of sale.

      We respectfully call the attention of the court to the item of damages, and ask that this item be increased to $100, and that the costs of the appeal fall on the defendant. The testimony on this point contemplates that the attorney’s fee should be raised to $100 in the event of an appeal; and as the defendant has taken an appeal, we think it but right that he should pay the damages assessed by his own witness.

      C. Roselius, for defendant, contended:
    The functions and authority of a notary public are defined bylaw; and, surely no one eversupposed that the public officer whose duty it is to draw up in the form, and with the solemnities pointed out by law, a deed, as authentic evidence of a contract of sale, was authorized to receive the price; and that such payment discharged the purchaser. Has the official character of the notary any relation to, or connection with, an agency to receive the payment of a debt due to either of the parties for whom he acts as scribe, (escribano,) for the purpose of affording clear and conclusive proof of their contracts ? Does the circumstance that the debt, which it is pretended has been paid to the notary, arose out of the contract of sale evidenced by an act passed before him, give validity to the payment? All these questions must necessarily be answered in the negative.
    There can be no difference of opinion as to the rule of law on the subject. Art. 2136 of the Louisiana Code provides : “The payment must be made to the creditor, or to some person having a power from him to receive it, or authorized by a court, or by law to receive it for him. Payment made to a person not having power to receive it for the creditor, is valid if the creditor has ratified it, or has profited by it.” Or, in the language of Marcad6, in his commentary on the corresponding article of the Napoleon Code, 123!): “ Le paiement doit se faire au créancier capable de recevoir, ou á quelqu’un qui le représente en vertu d’un mandat, soit conventionnel, soit judiciaire, soit légal.” Vol. 4, 618.
    Now, as the notary is not the mandatory of the vendor for whom he draws up and passes a deed of sale, it would seem to follow as a necessary consequence, that the purchaser cannot make a valid payment of the price to him.
    Thus far I have endeavored to meet the counsel for the plaintiff on their own ground, as if the rights of the parties depend on a question of payment. But it is obvious, that the true point of view to be taken of the case does not present a question of payment, but of deposit. It is not true that Breen ever paid the cash portion of the price of the property he purchased to the notary or his clerk. That it was a deposit and not a payment is clear from the fact, that the day after the deposit had been made he had an unquestionable right to withdraw it, which, of- course, he could not have done if the money had been paid. Perhaps it will be said that I take for granted-the very question in dispute. Not so. What could have prevented Breen from withdrawing the money from the office of the notary ? He was not bound to pay one cent of the price until Schmidt had executed an unincumbered title to the property which was the object of the sale. Did he intend to pay by anticipation ? If such had been his intention he would have assented to the proposition of Schmidt, to pass the sale and to pay the price, and to rely upon the vendor’s promise to raise the mortgage by which the property was incumbered. It was then a voluntary deposit of a sum of money made by Breen in the hands of a notary or of his clerk, for a special purpose. To whom did this money belong after it had thus been deposited, to Breen or to Schmidt ? I have already shown that it was subject to the control of Breen; that he retained the - title to it; and that the maxim, res pent domino, 'would have applied if the funds had been destroyed. Is the rule different with regard to the loss resulting from the unfaithfulness of the depositary? I confess that I know of no legal principle countenancing any such difference.
    But it is urged that Schmidt assented that the money should be deposited with the notary. Let us first refer to the testimony by which this position is sought to be supported.

      Latham, in his testimony, says : “ Witness went to Mr. Schmidt’s store to get his title, and met Mr. Breen there, and found him conversing with Mr. Schmidt in relation to a change in the terms of the sale; and in the course of the conversation Mr. Breen said to Mr. Schmidt ‘to whom shall I pay this money, to you or who?’ Witness observed that it was customary to pay it in the office. Mr. Schmidt said that it made no difference.”

      J. D. French, a witness for the defendant, gives a somewhat different version of this conversation. He says,' “ that he was present at the time of the conver* sntion between Mr. Breen and Mr. Schmidt, above alluded to by Mr. Latham, about the first of March — it might have been fifteen days earlier or fifteen days after. Mr. Schmidt and Mr. Breen were discussing the terms of the sale of property in Lafayette, and there being a calculation of interest to be made, Mr. Schmidt asked witness to assist him, or to make the calculation, IkZr. Latham happened then to come in. When Mr. Latham came in he had a memorandum or paper relative to the very same matter witness and Breen and Schmidt were talking about; after some discussion between t.he parties, Mr. Breen asked, (does not recollect whom he addressed.) to whom the money should be paid ? But Mr. Latham answered, that it was customary to pay it in the office, or to the notary; witness does not think that Mr. Schmidt gave any answer; but he is not sure.”
    Whether we take the testimony of either the one or the other of these witnesses, no consent on the part of Schmidt that the money should be deposited with, or paid to the notary, is shown. The motive by which Latham was actuated to be so officious in his advice to pay to, or deposit it with, the notaiy, is not difficult to divine. No doubt the fatal “ box,” which was the receptacle of all the money belonging to persons transacting business in the notarial office, was nearly drained, and, in order to prevent exposure, it was indispensably necessary to replenish it. From Latham’s own testimony it appears that he was a particeps criminis in the delinquencies of the notaiy; and although his culpable conduct may not be attributable to moral turpitude, but to weakness of character, yet the course pursued by him was the cause of the money being deposited with him. According to Latham, Schmidt said that it made no difference ; according to French, he said nothing in reply to Breen’s inquiry. Under this state of facts it is submitted, that no such consent on the part of Schmidt to the deposit is established as to put the money deposited at his risk. Having no right to call on Breen for the payment of the price until the title was passed, Schmiclt might well observe that it made no difference to him with whom Breen deposited his money. Should the court, however, be of opinion that the expression used by Schmidt would have produced a different effect, if the money had been actually deposited with or paid to the notary himself, still it is respectfully insisted that the implied agency conferred thereby on the notary does, at any rate, not extend to his clerk. A man may well have confidence in a public officer intrusted with the most delicate and important functions, but it does not follow that he is willing to place the same trust in all his clerks.
    It was also contended in the court below, that Schmidt ratified the deposit'of the money with the notary’s clerk, by applying to him for it soon afterwards. This argument cannot prevail, because no ratification can fairly be inferred from the act; besides, the refusal to give him any part of the money, clearly shows that the deposit was not held for the benefit of Schmidt, and consequently not at his risk.
    The last and only remaining ground on which the counsel for the plaintiff rely, is the supposed custom, established by the evidence, for the purchaser to pay or deposit the price, with the notary before whom the deed of sale is to be passed. On this point, on which alone the case was decided in the court below, I must be permitted to observe, that no such custom as the payment of the price to the notary has been proved ; and that, for the best of all reasons, because no such absurd custom has ever prevailed. As this is a question of fact, in relation to which I have the misfortune to differ from the opinion of the learned jndge of the district court, it is incumbent on me to refer to all the evidence in the record on that head.

      Latham, the unfaithful notary’s clerk, who has already figured so conspicuously in this case, states, it is true, “it is customary with purchasers to pay the price of property in the notary’s office ; he has been in notarial offices nearly fifte'en years. Witness, as clerk of Mr. Beard, generally received the money paid in the office. It is not customary to pay the moneys to the vendors before signing the act.”

      Theodore Quyol, a notary public, testifies: “That he has been for the last four years a notary public; it is customary for purchasers of property to deposit the cash payment with the notary in whose office the act is to be passed.” On the cross-examination, this witness states : “Witness deposits the money in bank so soon as he receives it; and has an account With the bankasnotary. He would not suffer a vendor to exercise any control upon such money before signing the act.”

      This is all the testimony to be found in the record in support of the pretended custom to pay the price of property purchased to the notary 'who has been selected to pass the act of sale.
    As regards the testimony of the first witness, Latham,, it is only necessary to observe that he evidently does not understand the meaning of the word payment. Every payment pre-supposes a debt; and it follows as a carrollary, that no payment can be made to the notary, or into his office, as the price which constitutes the debt to be paid is not due to him or to his office.
    Guyol, the other witness, who is an intelligent gentlemanj understands the difference .between a deposit and a payment. Latham says the price is first paid to the notary, or into his office, and afterwards to the vendor when the act is completed, which is nonsense; for as there is but one debt, there can be but one payment, in correct legal language. Guyol, on the contrary, states, that the price is deposited with the notary to be paid to the vendor, when it is really due to him on the completion of the title. This is intelligible and consistent.
    No custom of paying the price to notaries is established by the evidence in the record. On the contrary, it is shown that purchasers are in the habit of intrusting their funds to the notary who is to pass the act of sale. This money, until it is paid to the vendor, belongs to the purchaser just as much as if he had deposited it to his credit in the State Bank; and as it is his property, it is at his risk, res pent domino. Any other doctrine is subversive of the most fundamental principles applicable to the subject.
    Nor does it make any difference by whom the notary may have been selected. In the present case there is no evidence that the notary was chosen by Schmidt. It is true that in the auctioneer’s advertisement the notary’s name is stated ; but this cannot fairly be considered as evidence of Schmidt’s choice. From the relationship existing between the auctioneer and the notary, being that of father and son, there can be little doubt that the selection was made by the former. Be that, however, as it may, the fact of a notary being designated in an advertisement of an auction sale, does not constitute that notary the agent of the vendor to receive the payment of the price.
    To conclude: Both the plaintiff and the defendant are innocent parties, one of whom must support the loss resulting from the embezzlement of an unfaithful depositary; but as the plaintiff put it in the power of the notary to make a fraudulent conversion of his money, he must, it appears to me, bear the loss.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 9th February, 1850, the defendant caused to be sold at public auction, two lots of ground situated in the city of Lafayette, which were purchased by the plaintiff for fourteen hundred and thirty dollars, payable one-fourth cash and the balance in three equal installments, at six, twelve and eighteen months. In the auctioneer’s advertisement it was stated that the deeds of sale were to be passed before Joseph JR. Beard, then a notary public in New New Orleans. It appears that on the 27th 'February, 1850, the purchaser, Breen, deposited in the hands of one of the notary’s clerks, the sum of three hundred and fifty-seven dollars and fifty cents, being the amount of the cash portion of the price of the property, and paid two dollars and fifty cents on account of fees. When this money was deposited no receipt was required ; but afterwards the clerk gave the plaintiff the following acknowledgment:

“ New Orleans, March 15, 1845.

“ I have received from Mr. John Breen three hundred and fifty-seven dollars and fifty cents, for cash payment on property bought from C. Schmidt, and two dollars and fifty cents on account of fees, on the 27th Febraary last.

“For J. R. Beard, Notary Public, W. G. Lathaiu.”

The true date is, no doubt, 1850 instead of 1845.

The clerk, who was examined as a witness, testifies that “the money was not handed to Mr. Beard personally, but was received in his office; it was used by .Mr. Beard’s orders.” And in his cross-examination he says, “witness received the money; Mr. Beard was not in the office at the time witness received the money; the money was used to pay off other liabilities of Mr. Beard; he cannot exactly say how long after it was received, but shortly after. It was not deposited in bank. All the money received was put in a box, and used as wanted.”

The question which the case presents is, at whose risk was the money after it had been deposited with the notary’s clerk 1

The Judge of the Second District Court of New Orleans considered the money exclusively at the risk of the defendant, and, in the present suit, decreed him to be liable to pay the plaintiff the whole price, and the sum of sixty dollars damages and costs. From this judgment the defendant has appealed.

We concur with the counsel in the opinion that the delivery of the money to the notary’s clerk did not constitute a payment. It could only constitute a deposit; and until the plaintiff was regularly put in default, it seems to us that the deposit was exclusively at the risk of the depositor. C. P. 407, etseq. Code 2163, et seq.

The notary’s clerk to which the district judge, it appears, gave full credit, establishes a state of facts which take the case out of the general rule. We do not find his statements contradicted by the witnesses for the defendant.

Latham swears that he went to the plaintiff’s store to ge,t his title, and met the defendant there, and found him conversing with the plaintiff in relation to change in the terms of the sale, and in the course of the conversation Breen. said to the defendant, “ to whom shall 1 pay this money, to you or who 1” Witness observed that it was customary to pay it in the office. Schmidt said it made no difference. .After the money was paid in the office, Schmidt, the defendant, asked the witness to let him have part of it as he wanted to pay a note due on that day. Breen, at the time he deposited the money, signed the act prepared by the notary, and delivered his several notes according to the conditions of the sale. The only cause assigned for the non-completion of the act was the existence of a mortgage on the lots, which the defendant had neglected to remove.

The district judge came to the conclusion, that the defendant himself consented to consider the delivery of the money in the notary’s office as a payment. The evidence is not of that character which would authorize this court to reverse this decision on a question of fact.

The judgment of the district court is therefore affirmed, with costs.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Henry Frelson v. Tiner and Conrey.
    Where an instrument is executed in the common law form of a mortgage, to wit, a sale with an equity of redemption upon paying tt certain debt, intended to operate on slaves in the State of Arkansas, it would be valid there only as a mortgage, and cannot be regarded in this State as an instrument translative of property.
    A mortgage executed on slaves out this State, has no effect upon the slaves when they are brought here, except from the time it is duly registered here.
    APPEAL from the Third District Court. Kennedy, J. This action was brought on the following instrument: “State of Louisiana, City of New Orleans. Be it known, that this day, before me, Daniel Israel Ricardo, a notary public in and for the city and parish of New Orleans, State of Louisiana aforesaid, duly commissioned and sworn, personally came and appeared John W. Tobin, of Union county, State of Arkansas, who declared, that for and in consideration of the price and sum of $3500, to him in hand well and truly paid in ready money, the receipt whereof is hereby acknowledged, he does, by these presents, grant, bargain, sell, convey, transfer, assign and set over, with a full guarantee against all troubles, debts, mortgages, claims, evictions, donations, alienations, or other incumbrances whatsoever, and with the right of redemption as hereinafter set forth, unto Henry Frelson, of this city, here present, accepting and purchasing for himself, his hoirs and assigns, and acknowledging possession thereof, five certain negro men, slaves for life, to wit, Jacob, aged about twenty-eight years; Joseph, aged about twenty-six years; Charles, aged about twenty-one years; Lewis, aged about twenty years; and Columbus, aged about twenty years: all of which slaves are now on the plantation of said vendor, and are fully guaranteed against the redhibitory vices, maladies and defects prescribed by law.
    “And here the said purchaser declared, that he dispensed with the production of a mortgage certificate, to show the mortgages, if any, on said slaves, and to be annexed to this act as required by article 3328 of the Civil Code of this State.
    “To have and to hold the said slaves unto the said purchaser, his heirs and assigns, to their proper use and behoof forever. And the said vendor for himself and his heirs, the said slaves to the purchaser, his heirs and assigns shall and will warrant and forever defend against the lawful claims of all persons whatsoever, by these presents.
    “And the said vendor does moreover subrogate the said purchaser to all the rights and actions of warranty which he has or may have against his vendor or the vendors of his vendor, fully authorizing the said purchaser to exercise the said rights and actions in the same manner as he himself might or could have done.
    “This sale is moreover made and accepted under the express condition, that the said vendor shall have the right of redeeming the said slaves on paying to the said purchaser the said sum of $3500, in the amounts and at the periods herein after snecified, to wit: $500 on the first day of February next; $1000 on the first day of March next; $500 on the first day of April next; $500 on the first day of May next; $500 on the first day of June next, and $500 on the first day of July next. In which case, the said purchaser hereby binds himself and his heirs to re-convey the said slaves to the said vendor for a nominal consideration.
    “Thus done and passed, in the city of New Orleans aforesaid, in the presence of George Rareshide and Wm. J. Clements, witnesses of lawful age, domiciliated in this city, who hereunto sign their names together with the said parties and me the said notary, on this 23d day of November, in the year one thousand eight hundred and forty-eight.
    “Original signed : John H. Tobin. Henet Fkelson. G. Raeeshide. Wm. J. Clements. D. I. Ricaedo, Notary Public.”
    The district judge decided : “The evidence shows veiy clearly, that the contract of 23d November, 1849, between Tobin and the plaintiff was not intended to be translative of property in any sense. The slaves at that time were in Arkansas, where the common law prevails. Under that system, although slaves are considered as personal property, they may be mortgaged; and this contract would avail as a mortgage.
    “But it has been repeatedly decided, that a mortgage of slaves, executed out of this State, will not attach to the slaves when brought here, except from the time that it is duly registered here. When slaves are brought into this State, they become immovables by our law; and, of course, are subject from that time to ah our laws concerning immovables. Verdiu v. Lepretor, 4 L. R. 43. liopkinsv. Laconture, 4 L. R. 65. Copley v. Sanford, Executor, 2d Ann. 335. There was no registry or other cause to interfere with the defendants’ attachment.
    “Judgment for the defendants, with cosls.”

      Durant and I-Iornor, for plaintiff.

      Wolfe and Singleton, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

For the reasons given by the district judge, the judgment of the court below is affirmed, with costs.


author: Rost, J.

text:
    Municipality Number Three v. Sherman Johnson.
    The city of New Orleans, under the act of incorporation of Eebi-uary 17th, 1805, did not possess the power of laying a tax on capital employed in traffic; nor did the city acquire that power under the act of May 3d, 1847, for raising a revenue for the State.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Whittaker and Lugenbuhl for plaintiff.

      Roselius for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant is sued for the amount of a municipal tax, imposed on the capital employed by him in trade within the limits of Municipality Number Three: there was judgment in his favor, and the plaintiffs appealed. He resists the payment of the tax on the following, among other grounds, that the ordinance imposing the tax is illegal and void, because the power to tax capital has not been delegated to the plaintiffs.

The‘question presented to our consideration is, whether capital employed in commerce is personal estate, within the meaning of the act of incorporation of the city, passed in 1805, which confers on the corporation the power to raise, by tax, in such manner as to them may seem proper, upon the real or personal estate within the city, such sum or sums of money as may be necessary, &c.

It appears to us that capital employed in commerce is a fictitious thing; that it has no existence apart from the merchandise in which it is invested, and that it does not come within the legal definition of personal estate. If it is to be viewed as money under the Spanish laws which were in force when the act of incorporation was passed, it was a rule derived from the Roman law that money and active debts were not included in the word movables, when it was used alone and without any addition or designation. Under those laws, money stood apart on account of the distinct function it performed as a measure of value, and active debts formed a third class of things. Nouveaú Ferriére, verbo Leys, des choses mobiliaires Ley dioses 51 ff. de Legal 3. Politica de villa Diego, p. 42, No. 71. Gregorio Lopez on Law 28, title 8, Partida 5, and on Law 14, title 11, Partida 4.

This distinction has been preserved by art. 533 of the Napoleon Code; and although it would seem to have beeu abrogated by the definition of movables given in the Louisiana Code, the Code of Practice has, in fact, retained it, by-ordering the sheriff to seize in execution, first, movables, then slaves, then immovable property, and where there are neither movables, nor slaves, nor immovable properly, the sums of money, rights and credits of the debtor. C. P. 646, 647. The framers of the act of incorporation of 1805 acted upon it when they worded that the estates, whether real or personal, the rights, dues, debts, claims or property whatsoever, which heretofore belonged to the city of New Orleans, &c., shall b"e vested in the corporation.

In conformity with this view of the law, no attempt has ever been made to levy taxes on capital of any kind before the passage of the act of 1847, providing a revenue for the support of the government of the State, in which a provision is found which subjects to taxation all capital vested or employed each year in traffic, trade, merchandise, or in any kind of commerce. Acts of 1847, p. 164.

The introduction of this provision in the new fiscal law, after specifying all the real and personal' estate which was taxed before its passage, shows that the Legislature considered that capital was not previously subject to taxation. The act of 1847 has exclusive reference to State taxes, and as the power to impose a tax on capital was not, in our opinion, delegated to the plaintiffs by the act of incorporation, the judgment must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.


author: Edstis, C. J.

text:
    The Board of Liquidators of the City Debts v. Municipality Number One et al.
    The act of May 4th, 1847, to provide for the payment of the debts of the municipalities of New Orleans, gave a certain destination to the sinking fund, by which vested rights were acquired that could not, under the art. 109 of the Constitution of the State, be divested by a subsequent act of the Legislature. The act of March 20th, 1850, providing for the liquidation of the city debt, gave a different destination to the sinking fund, and is, consequently, unconstitutional.
    from the Third District Court of Now Orleans, Kennedy, J.

      Benjamin and Mieou, for plaintiffs.

      IÍ. Preaux, for defendants.
   The judgment of the court was pronounced by

Edstis, C. J.

This case is before us on an appeal from the Third District Court of New Orleans.

On the 4th of May, 1847, an act was passed by the Legislature to provide for the payment of the debts of the municipalities of New Orleans. By this act the municipalities were prohibited from emitting bills of credit, promissory notes, or creating any debt or obligation of any kind beyond their respective revenues; their whole debt.was to be funded, as is explained in the following sections. They contain the only portions of the act which it is material to advert to in the consideration of the case as it has been presented in argument.

“ Sec. 3. Be it further enacted, &c. That each municipality of the city of New Orleans be, and is hereby authorized to fund all or any portion of its existing debt, or to borrow money for the purpose of paying its existing debt, and to that amount, by issuing bonds therefor, payable at a period not exceeding thirty years, and bearing interest not exceeding seven per cent per annum, payable semi-annually, which bonds shall not be disposed of at less than par.

‘•Sec. 4. Be it further enacted, &c. That to secure the redemption and punctual payment of all bonds so issued, on their maturity, as well as all other bonds-of said municipalities now existing, and for the payment of which, provision has not been made by law, each of said municipalities shall annually, in the month of January, specially appropriate and set apart from the revenue arising from wharfage and the markets, a per centage upon the amount so funded, which would extinguish said amount at its maturity; and it shall not be lawful for the municipal council to proceed to any other business until such appropriation is made, which appropriation shall constitute a sinking fund, and be specialty pledged for the payment of such bonds, and shall not be liable for any other or future obligations of the municipality to which said fund may belong ; nor shall such be liable to seizure for any debts other than those for the extinguishment of which it is established.

“Sec. 5. Beit further enacted, &c. That the sinking fund authorized by the next preceding section of this act to be established by the municipalities, shall be deposited in the Bank of Louisiana, and shall only be applied in the following manner: 1st. To the extinguishment of any of the bonds of that municipality for the payment of which the fund is established. 2d. In purchasing, before maturity any such obligations : in which case at least sixty day’s notice shall be given, in one or more newspapers published in the city of New Orleans, of the amount of money in the sinking fund that can be applied to the payment of the debt; and those bonds which may be offered at the greatest discount, and which fall due within the shortest periods, shall be preferred, and shall be purchased by the money in said sinking fund.

“ Sec. 6. Be it further enacted, &c. That it shall not be lawful to employ any money which may be borrowed under the third section of this act, otherwise than to extinguish the existing debts of the municipality; and all officers or persons whatsoever, participating, aiding or assisting in such improper appropriation, shall be deemed guilty of embezzlement, and each be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding one year.

“Sec. 7. Be it further enacted, &c. That it shall be the duty of the respective councils of the municipalities to carry into effect the provisions of this act, and of the treasurer thereof to deposit in the Bank of Louisiana annually, and as fast as received, the amount herein provided by the fourth section of this act; and the amount so deposited shall be placed to the credit of the sinking fund of the municipality depositing the same, and no portion thereof shall ever be drawn therefrom, except for the purpose aforesaid, and unless authorized by the council, and then only upon a check signed jointly by the treasurer and comptroller, and countersigned by the recorder of the municipality to which said fund belongs, and by the Mayor of the City of New Orleans.”

The plaintiffs are the Board of Liquidators, acting under the authority of an act to provide for the liquidation of the city debt and the debts of the separate municipalities of the city of New Orleans, passed on the 20th of March, 1850. This act makes it the duty of the board appointed under it to take possession of the several sinking funds established by law in the respective municipalities ; to dispose of and realize the value of the assets of the sinking funds of each of the municipalities, and appropriate the'proceeds thereof to the extinguishment of the principal and interest of tho debts of the municipalities to which said sinking funds belong respectively; and it is also provided, that the said sinking fund shall thereupon be and remain forever abolished. The plaintiffs, under this act, claim the right to take possession of the assets of the sinking fund of the First Municipality, consisting of money and evidences of debt to the amount and value of about one hundred and thirty-eight thousand dollars, which are iu deposit in the Bank of Louisiana, and thoy applied to the court of the Third District of New Orleans for process to enforce the delivery of the assets according to the prayer of their petition. The municipality, which was made a defendant, opposed the application of the plaintiffs and, among other matters, pleaded the unconstitutionality of that portion of the act of 1850, on which the allegations and prayer of the plaintiff’s petition are founded. The district court gave judgment refusing to grant the process asked for, and the plaintiffs have appealed.

The argument has been principally confined to the constitutionality of that portion of the act of 1850, abolishing the sinking fund of the municipality, and transferring the custody of its assets from the Bank of Louisiana to the Board of Liquidators, to be disposed of as provided in the act.

We think it proper to observe, that we should not decide a case in the imperfect form in which this is presented to us, -unless we were assured that the decision, at an early period, was a matter of urgent public interest and the respective parties had expressly, before us, waived all matters of exception.

It is stated that the district judge decided against the plaintiffs on the ground that the portion of the act of 1850, before recited, was in conflict with the 109th article of the Constitution of the State, which provides that no ex post facto law, nor any law impairing the obligation of contracts shall be passed, nor vested rights be divested, unless for purposes of public , utility and for adequate compensation previously made. If this act impairs the obligation of a. contract or takes away a vested right, it not only violates the Constitution of the State but the Constitution of the United States, according to the well established jurisprudence relating to that instrument.

The first inquiry is, whether the fund in the Bank of Louisiana is there deposited under a contract; if it is, the legislative power, having no right to impair the obligation of the contract, can have no control of the fund, and can give it no direction not warranted by the contract. In relation to this inquiry the facts must be first ascertained.

The plaintiffs’ petition states the fund to be a deposit in the Bank of Louisiana; that it is the sinking fund of the municipality ; and the evidence conclusively shows that it has been created under the, act of 1847. Creditors of the municipality, to a large amount, surrendered the evidence of their debt, and received in lieu bonds of the municipality issued by virtue of that act, for the payment of which the fund stands pledged by virtue of the fourth section of.the act of 1847.

The act of 1850 does not assume to affect the obligation to pay the debts; on the contrary, it provides for their payment; and the question turns on the validity of the legislation which attempts to defeat the security which has been acquired under the act of 1847, for the payment of the debt created under its sanction.

The power of the Legislature to enact this law, and of the municipality to contract under it, as long as the law itself was unrepealed, can hardly be drawn in question.

"We have then parties able to contract, and that they'did contract, and that the consideration of their bargain was in all respects lawful and adequate. The fund appropriated as a security for the performance of the contract on the part of the debtor was, under the act of the Legislature and in pursuance of the agreement, delivered to a third person agreed upon by the parties, thus bringing the case within the technical rules of the law of pledge. Code 3129. After this delivery by the deposit in the Bank of Louisiana, we do not understand the municipality as retaining any other interest in this fund than the debtor retains in the thing given in pledge in an ordinary case of pledge. And lhis conclusion necessarily implies another, and that is that the creditor acquired a vested right in the object pledged, ns much as in an ordinary case of pledge when the pledge lias been completed by the forms of law and by the delivery of the thing pledged. Whether this fund is called a sinking fund or not, does not vary the rights of the parties thus acquired in relation to it; it is sufficient for the purposes of the present inquiry, that there has been a delivery in pledge under the law to constitute the privilege in favor of the creditor.

In whatever aspect we consider this case, the facts present a valid contract and a vested interest in the fund in deposit in the Bank of Louisiana. It follows, as a matter of course under our constitutional system, that it is not within the functions of the legislative power to impair the one or the other, and that any act of the Legislature having this purpose and effect is void and of no effect.

But it has been argued on behalf of the plaintiffs, that it is competent for the Legislature, as a matter of administration, to change the depository designated by the law and assented to by the creditors, and that, as the recipients and depositaries of the fund, they would hold it subject to its charges as the original depositary holds it.

It is a sufficient answer to this, that the depositary thus selected forms a substantive part of the contract, and oilers guarantees which it would be contrary to good faith to impair, and which the Legislature and the municipality have no right to change by substituting depositaries of their own selection.

In relation to the right or power of the plaintiffs to hold this fund on deposit subject to the rights of the creditors, it seems to us only necessary to observe that such a right is in direct violation of the law under which they are appointed, which orders them to sell and realize the fund and appropriate the proceeds to the extinguishment of the debt of the municipality, without discriminating among the creditors. It is also in direct contradiction to the allegations of their own petition, which declares it to be their duty to take possession of the sinking funds of the municipalities, “to be administered and disposed of as said law directs.”

This proposition of the plaintiffs is presented to our consideration in another form by their proffer, under a resolution of the board to that effect, to apply the assets of the municipal sinking funds to the payment of such obligations as said sinking funds were originally intended to pay. The answer to this is obvious, that they have no such authority under the law, and to entrust them with it is directly in contradiction with the express will of the Legislature, which makes it their duty to apply the funds otherwise. Had the Legislature taken the same view of this subject which we have adopted, non constat, that the plaintiffs would have been charged with the administration of the sinking funds of the municipalities, the present fund under consideration might have been considered as being in its proper place on deposit in the Bank of Louisiana.

The judgment of the district court is therefore affirmed, with costs.


text:
    Magdalene Bernard f. w. c. v. Francois Auguste, f. m. c.
    Where slaves sold remain in the possession of the vendor for nine years after the date of the act of sale, before they are delivered to the vendee, the sale ■will be presumed to have been simulated, unless tlie presumptions established by art. 2456, C. C., are rebutted by evidence.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      Janin and Taylor, for appellant.

      David, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

In 1842, the plaintiff instituted suit in the late Parish Court of New Orleans, for the recovery of several female slaves which, it was alleged, the defendant had recently taken from her possession, under color of acertain pretended act of sale dated the 6th of March, 1833. This act was made by Louis Ferrand, fils, a free man of color, as the attorney in fact of the plaintiff, with whom he then lived in concubinage. The slaves were originally bought in the name of the plaintiff, and on the 6th of March, 1833, Ferrand, under a power of attorney from the plaintiff, undertook Jo .sell -them .to the defendant. The plaintiff charges, that this act is utterly false, simulated, and without any legal or sufficient consideration, and conveyed no title whatever to the defendant.

The defendant claims under this act, of which he alleges the validity and bondfides; charges the plaintiff with fraudulently lending her name to enable Ferrand to secrete his properly, &c., and that the sale was made for the purpose of reimbursing him, the defendant, for money which he had advanced to the plaintiff for paying for the said slaves. The details of this case appear to be similar with those of the case of the same parties, reported in 1st Ann. 69.

The plaintiff abandoned the case; no one appeared for her at the trial in the court of the first instance, and judgment appears to have been rendered against her by default, which was confirmed. The case was tried on the respective claims of the defendant and of the assignee of Ferrand, who had become a bankrupt, in the District Court of the United States for this district, and who intervened in the suit, representing the interest of the creditors of Ferrand.

The judge of the district court considered, that the act under which the defendant claimed, gave him no right whatever to the slaves, and adjudged them to belong to the creditors of- Ferrand, and condemned the defendant to pay to the assignees §>15 per month, for the value of the services of two of the female slaves, and allowed the services of another as a compensation to the defendant for probable expenses incurred in clothing and supporting the whole. From this judgment the defendant, Auguste, has appealed, the plaintiff acquiescing in the judgment.

The case has been very elaborately argued. We think the ground upon which the defence rests does not materially affect the' rights of the creditors of Ferrand.

It is not pretended, that up to March, 1842, there was a delivery of the possession of the slaves to the defendant, under the act of sale under which he claims, bearing date nine years before. On the contrary, they were in the service of the concubine of Ferrand, the original plaintiff to the suit, and to all intents and purposes in the possession of Ferrand. The presumption which the article 2456 establishes, in cases where there is no change of possession from the vendor to the vendee has not been rebutted in the case before us. On the contrary, our impressions from the evidence are strong, that the defendant him» self can give no explanation of his affairs which passed under the hand of his agent, Ferrand. It is no defence whatever against those who are seeking to injure legal rights, that he has been outwitted by the man of his confidence, and that he has been the dupe as well as the accomplice of Ferrand. . Perhaps he has. Such a result is not at all surprising. It is sufficient for the decision of ibe present case for us to state, that we find nothing in the evidence which satisfies us that the district judge erred in his conclusions, that the act under which the defendant claims the slaves named in the petition of intervention, is void and of no effect; that it was a mere simulation made by both Ferrand and the defendant to enable the former to perpetrate his purposes of fraud.

We think the district judge erred in allowing too large a sum for the services of the slaves. The rate of eight dollars per month for the three slaves we think a just compensation for the whole, making allowance for the expense of keeping them, loss of time, &c. In this respect the judgment of the district court must be changed.

It is therefore ordered, adjudged and decreed, that the judgment of the district court decreeing the property of the slaves mentioned therein to be vested in the assignee of Louis Ferrand, fils, f. m. c., be affirmed; and it is further decreed, that the said assignee recover said slaves from the said defendant, and that the said assignee recover from the said defendant the sum of eight dollars per month each for three of the said slaves, from the 12th of March, 1842, to the day of delivery thereof. The judgment of the district court being changed in this respect, it is further ordered, that said intervenor pay the costs of this appeal; the costs of the court below to be paid by the defendant.


text:
    Charles Levistones v. Pierre Landreaux.
    Where a party employs a broker to effect a sale of a plantation and slaves, and the broker finds certain purchasers who enter into a written promise to take the property upon the terms required, the broker is entitled to his commissions, although the party afterwards releases the buyers from the contract and re-sells upon different terms to one of them.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      T. W. Collins, for plaintiff.

      G. LeGardeur, for defendant.
   The judgment of the court was pronounced by

Rost, J.

On the authority of the cases of Jenkins v. Trott, 3d Ann. 671, and Gottschalk v. Jennings et als. 1st Ann. 5, the judgment rendered in favor of the plaintiff in this case must be affirmed.

We take the facts to be, that the defendant had given the plaintiff and his partner, who are real estate brokers in this city, memoranda of two sugar plantations and of the slaves attached thereto, which he wished to sell. The late Judge Lacey became apprized of that fact, and took to their office Messrs. Loughborough and Ingram, whom he wished to join in the purchase of a sugar* plantation. The brokers showed them the terms on which the defendant offered to sell the Espérance Plantation, and, shortly after, these three gentlemen called upon Mr. Landreaux, in company with the brokers, and made an appoint-with him to examine the place. After their return a long negotiation was had, which was conducted in part by the brokers, and the result of which was, that the defendant entered into a written promiase de rente with Loughborough and Ingram, on the terms which he had authorized the brokers to take.

The promise to sell was as binding on all parties as the sale itself would have been, and, so far as the brokers were concerned, the transaction was closed, and they had a vested right to their commissions.

Thfe defendant subsequently chose to let off one of the purchasers from the contract, and to sell to the other on terms somewhat different from those of the original agreement. He was at perfect'liberty to modify or annul that agreement, provided the other parties to it assented to the change. But it is hardly necessary to say, that he cannot avail himself of his own voluntary act to defeat the plaintiff’s claim.

It is unnecessary to notice the bill of exceptions, as the case is fully made out without the testimony of Edward Gottschaik. The plaintiff shows a transfer to him of the share of his partner, and is entitled to recover the whole amount.

The judgment is affirmed, with costs.


text:
    Frederick Tudor v. John E. and Nathan Thayer.
    Where absent defendants are sued for the cancellation of a mortgage recorded in this State, and for damages, and the absentees, through the curator act hoc appointed to represent them, consent to the cancellation of the mortgage, but plead to the jurisdiction of the court as to the claim for damages, the court cannot entertain jurisdiction of the claim for damages against the absentees.
    The circumstance that an absentee states his grounds of defence to the curator ad hoc appointed to represent him, does not prevont him from objecting to the jurisdiction of the court.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Stewart, for plaintiff.

      J. P. Wilde, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This is an action instituted to obtain the cancellation of a mortgage granted by plaintiff to defendants on lands in New Orleans and recorded here, the surrender of a note made by plaintiff for $15,000 secured by the mortgage, and also to recover $20,000 damages. The parties are all residents of Boston, where the contracts were made. There was no personal citation. A curator ad hoc was appointed to represent the defendants. He filed an answer in which he consents, under instructions received by him from the defendants, that the registry of the mortgage be cancelled ; but alleges that the debt for which the mortgage was given has not been fully paid. He further pleaded, that the existence of the mortgage was the only basis for the jurisdiction of the court; that the defendants had not been cited, and that he had no authority to appear for them except under the appointment .of the court; that, therefore, touching any demands of plaintiff beyond the cancelling of the mortgage, he pleaded to the jurisdiction of the court. -

We think the plea to the jurisdiction should have been sustained, and that the court was without authority to render a judgment pei'sonalJy binding upon the defendants as a settlement of the accounts of the parties, and mulcting them in damages for the alleged injury of the plaintiff’s credit. See Dupuy v. Hunt, 2d Ann. 562. Peterson v. McRea, 101.

It is true, that the defendants in answer to the curator’s letter informing them of his appointment by the court, furnished him a statement of their grounds of defence to the action, which he has embodied in his plea; but we do not undei^ stand them as intending to waive any valid defence which could be made to the proceeding; and the curator has throughout acted in that capacity, and carefully abstained from appealing as an attorney at law or counsel for the defendants.

Whether the curator might not have successfully pleaded unqualifiedly to the jurisdiction of the court, is a question not urged by the appellants, and upon which we need not express an opinion.

It is therefore decreed, that the judgment of the district court be reversed. It is further decreed, that the registration of the mortgage in favor of the defendants in the petition described be cancelled; that the costs of this suit in the court below, incurred down to the 2d May, 1849, be paid by the appellants, and that the residue of costs be paid by the plaintiff,


author: Preston, J.

text:
    Lowe and Pattison v. Bell and McLay.
    If a factor in the execution of a commission to purchase, deviate from his orders iu price, quality or kind, the articles must remain on his own account.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. N. Ogden, for plaintiff.
    ./. 8. Halsey, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 17th of November, 1847, the defendants, merchants, residing in Glasgow, addressed to the plaintiffs a letter containing this order: “Gentlemen: In Mr. Brown’s last letter to us, he says Indian corn could be sent either here or to Liverpool, at from thirteen to fourteen shillings a boll of two hundred and eighty pounds, all charges included. If you. could send it at the same, or even a shilling higher, we would like you would send from a thousand to one thousand five hundred pound’s worth.” In another part of the letter they say: “ We would like you would not loose this opportunity, if it can be sent here or to Liverpool for fourteen or sixteen shillings a boll of two hundred and eighty pounds.”

In a letter dated the 2d of December, 1847, they say: “Push this lot of Indian corn off as soon as possible, so that we may get the advantage of the times, for we are quite sure it can be sent here at our limits, and if in good order, and the best quality, it will leave a little.”

On the 18th of January, 1848, the plaintiffs purchased and immediately shipped the quantity of corn ordered, but at such a price that, with the charges, it cost eighteen shillings and five pence the boll of two hundred and eighty-pounds in Liverpool.

The defendants refused to receive the corn on the ground that the plaintiffs had given more for it than the limit fixed ; and it was sold at a great loss for which the plaintiffs bring suit.

It is laid down in all the elementary writers upon commercial law and upon ■agency, that if a factor, in the execution of a commission to purchase, deviate from his orders in price, quality or kind, the articles must remain on his own account. Paley on Agency, 28.

In the case of Cornwall v. Wilson, 1 Ves. 509, Lord Hardwicke used this Janguage: “the defendant insists that the plaintiffs having exceeded their orders as factors, in which they are not warranted, he is justified in refusing the contract, and turning it upon the plaintiffs themselves, making them principals ; to prove which merchants have been examined on both sides, and the result is, that if a factor have not a general, but a limited authority to purchase at a certain price, if he exceed that, his principal is not bound to adopt the contract and accept the goods ; and reason agrees therewith."

The price given for the corn in this case exceeded by more than an eighth the highest limit allowed by the defendants ; and by the principles of law just cited, they were clearly justified in refusing to adopt the contract.

The plaintiffs, however, contend that they acted in good faith, of which there is no doubt, and that the mistake was occasioned by the loose, negligent, and confused manner in which the defendants gave their instructions. They had shortly before ordered a quantity of wheat at a certain rate for the boll of two hundred and eighty pounds, but immediately afterwards corrected their order by stating that it should have been a boll of two hundred and forty pounds which they meant. There is no doubt this circumstance lead the plaintiffs into the unfortunate error. The term boll is not known in our commerce, but in Glasgow is a measure which contains two hundred and eighty pounds of corn, but only two hundred and forty pounds of wheat.

As the order for the corn was explicit in reference to the pound weight perfectly known in our commerce, we think it was the misfortune of the plaintiffs not to have governed themselves by it in executing the order, or at least not to have awaited explanatory instructions.

It is urged, that this matter, which constitutes the whole defence, is not presented by the pleadings. We think it is, by the statement in the petition, that the defendants refused to receive the corn on this ground, and that it was only a pretence. It has certainly been fully investigated by the evidence.

We do not feel authorized to reverse the judgment of the district court in favor of the defendants,-especially as it is always incumbent on a plaintiff in order to obtain judgment to make out a case free from reasonable doubt.

The judgment of the district court is therefore affirmed, with costs.


text:
    Emile Romer v. Jane Woods, f. w. c.
    The plea of prescription of one year bars the action for the rescission of the sale of a slave, upon the ground of the slave being addicted to running away, unless it is proved the vendor knew of the existence of the vice at the time of the sale, and neglected to declare it to the purchaser. C. C. 2512.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Schmidt, Hoffman and Ogden, for appellees.

      Livingston, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sued for the rescission of the sale of a female slave fully guaranteed, on the ground that she was addicted to running away before and at the time of the sale.

The defendant called her vendor, Martha P. White in warranty. The latter pleaded the general issue and the prescription of one year, under art. 2512, C. C. Her counsel not having appeared at the trial, judgment was rendered against her in warranty for the amount which the plaintiff recovered from the defendant, the court below having rescinded the sale. The defendant acquiesces in the judgment, and tlie warrantor alone has appealed.

The appellant sold the slave more than one year before the institution of this suit, tier plea of prescription must, therefore, prevail, unless she had knowledge of the existence of the vice, and neglected to declare it to the purchaser. C. C. 2512.

The facts necessary to be proved against her are, either that she. was apprized of the existence of the vice when she sold, or that while the slave was in her possession she absented herself twice, for several days, or once for more than one month, as required by art. 2505, C. C., to constitute the habit of running away.

These facts are not satisfactorily proved. The testimony of the witness, Leonard, has no specific reference to the possession of Mrs. White, and is entirely too vague and general. That witness states besides, that the defendant was apprized of the existence of the vice at the time she purchased, but does not state by whom. If the vice was disclosed by the vendor, this case would not differ from that of Campbell v. Botts. 5th Ann. 106; and the warrantor would not be bound unless she had given a special warranty against the vice disclosed.

It is therefore ordered, adjudged and decreed, that the judgment rendered in this case, in favor of the defendant against her warrantor, Martha P. White, be reversed, and that there be judgment in favor of said warrantor and against the defendant, with costs in both courts. .


text:
    Erasmus W. Benton v. A. Bidault & Co.
    Where ¿party to an agreement for the purchase of certain merchandise refuses to accept the delivery, the other party wishing to affirm the sale and to recover the price, must show that he tendered the delivery of the articles at the time and place stipulated in the agreement.
    Where the vendee refuses to accept the delivery, and the vendor wishes to have the thing sold at the vendee’s risk, a private sale is not the proper mode of ascertaining the loss.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      J. W. Duncan, for Plaintiff.

      IL Gaither, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 20th of November, 1849, the defendants, through the instrumentality of Bernard Finney, purchased from the plaintiff two flatboat loads of potatoes, then lying at Freeport, at the price of $1 80 per barrel. One of the boat loads was delivered at the flatboat landing of the Second Municipality of New Orleans, and paid for by the defendants.

The defendants plead, and have offered evidence to prove, that the other boat load was to have been delivered at the same place, and in good and merchantable condition. The plaintiff contends that the last boat was not to be delivered in New Orleans ; there-was a dispute also as to the mode of ascertaining the condition of the potatoes.

The plaintiff, on the 13th of December, notified the defendants to come and receive the second boat load, and that he would sell them that day at their risk, if not take» away;- and accordingly did that day sell them to one Nesbit for Si 40 a barrel. He claims forty cents a barrel, loss on the sale of the sound potatoes, two hundred dollars damages on account of the deterioration of the potatoes, in consequence of the delay of the defendants to receive them, and some other damages. The district court rendered judgment for the defendants, on the ground that the boat was to be delivered at the flatboat landing of the Second Municipality, and was not tendered there.

The first boat load was delivered at that landing, which raises some presumption that the second load was to be delivered at the same place. Mr. Adele, the plaintiff’s clerk, understood that the boat and cargo was to be delivered in New Orleans, for he undertook so to deliver it, as soon as the first cargo was disposed of. Finney, the broker who made the contract, states that they were to be delivered at the. same place. Even if, as contended, he only inferred that from the conduct and conversation of the plaintiff’s agents, (the plaintiff being confined to his room by a broken leg,) we cannot interpret that conduct and conversation differently. Clark, the leading witness of the plaintiff, does not say that the cargoes were to be delivered at Freeport, but declares that the first cargo was brought down and delivered to Mr. Finney at New Orleans.

The testimony preponderates in favor of the view taken by the district court, and if it was agreed to deliver the property in New Orleans, it should have been tendered there. Moreover, a private sale at Freeport .was not a proper mode of ascertaining the loss. It is probable, however, that there would not have been a difference between the parties, as to the place of delivery, if there had not been a misunderstanding as to the mode of separating the sound from the unsound potatoes. The price which the defendants agreed to give for the potatoes was the market price of sound potatoes ; twenty or thirty per cent of the potatoes were rotten ; the defendants insisted that they should be turned out of the barrels, and the sound separated from the unsound, which the plaintiff’s agent refused to have done, insisting that it was the custom to separate the sound from unsound barrels, by cutting holes in their sides, and only to examine more closely those that were suspected of being unsound by inspection through the holes or by the smell.

Where the damage amounted to a fifth of a cargo, we think the mode of inspection proposed by Finney, on behalf of the defendants, was reasonable, and in fact it was substantially pursued in re-selling the potatoes to Nesbit, when a fifth of the potatoes were ascertained to be damaged. We think too that Finney, as agent of the defendants, acted reasonably in offering to the plaintiff’s agent, as proved by himself, t.o have the question as to the soundness of the cargo referred to persons competent to judge. Although he states that he refused because they were purchased by sample; yet Finney states that he purchased only a sound, merchantable article.

Under the circumstances, the claim of the defendants’ agent, to have the sound potatoes alone delivered, was reasonable. He sold them in this manner for a very small profit, and the purchasers declined taking them after examination on account of the extent of their unsoundness. If the defendants were liable for any deterioration between the 20th of November and the 2d of December, when the dispute arose as to the condition of the potatoes, that damage alone should have been claimed, and such as occurred on account of the unreasonable delay in receiving the article.

Notwithstanding these views of the evidence, we are not clear that the defendants were free from blame, and must dispose of this suit on the general principle, that it is the duty of plaintiffs so to manage their business) and to produce in court such evidence as to make it certain that they are entitled to what they demand, and that courts cannot judicially declare their demands well founded without that certainty.

The judgment of the district court is affirmed, with costs.


text:
    W. C. Squier v. R. C. Stockton.
    Where the purchaser at sheriff’s sale was aware of the character of the title and the antecedent litigation attending it, he cannot by rale against the sheriff have the price retained until he is secured from the danger of eviction in consequence of certain suits claiming a judicial mortgage on the property.
    from the Fourth District Court of New Orleans, Strawbridge J.

      T. A. Clarice, for appellee.

      R. C. Stockton, for appellant.
   The judgment of the court was pronounced by

Slidell, J.

Steele became the purchaser of property sold under fieri facias in this cause, and paid the price to the sheriff. Afterwards he took a rule in this suit upon the plaintiff to show cause why the court should not order the sheriff to retain the money, until the plaintiff gave him security against eviction by a third person who had brought suit against Stockton, claiming to have a judicial mortgage upon the property. Squier excepted that Steele could not proceed by rule. The district court sustained the exception; and in support of his judgment the appellee argues, that if the purchaser had proceeded by an ordinary action, he would have been obliged to give bond in order to enjoin the payment of the money to the plaintiff in execution. This decree we are not.prepared to disturb, especially in view of the attending circumstances, and the purchaser’s knowledge of the title and antecedent litigation.

Judgment affirmed, with costs.


text:
    Charles R. Kennedy v. Henry Kloppenberg.
    Where the judgment of the court decrees that the plaintiff is the owner of a thing, and orders defendant to deliver it, or in default thereof pay a certain sum, the defendant has not the option of keeping the thing or paying the sum. The plaintiff may seize the thing on execution, if it can be found.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Michel and Burns, for plaintiff

      Upton, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the defendant for two iron kettles, and in default of delivering the same, to pay him their value, which he estimates at five hundred dollars. He proved satisfactorily that they belonged to him, and the district court condemned the defendant to deliver them to him, and in default thereof, to pay him one hundred dollars, at which he fixed their value.

The plaintiff has appealed, on the ground that the kettles are of a greater Value, and that, under the alternative judgment, if the defendant should refuse to deliver them to him lie could recover only the sum of one hundred dollars.

The judgment by no means divests the plaintiff of. his property, which was lying in the defendant’s corridor when the judgment was rendered. He can take it by execution wherever he finds it. And any disposition of it by the defendant, so as to render the recovery more difficult or onerous, would give rise to damages.

If from any cause it should be impossible to deliver the property, we think the court fixed upon it a fair value, according to the evidence. They were old kettles, belonging to a tallow factory of the plaintiff, in the city of Lafayette, which being broken up, they were apparently abandoned on the lot. One Ritchie bought the lot, and conceiving that he bought the kettles with it, sold them to Catón for twenty dollars. Catón sold them to the defendant for thirty-seven dollars fifty cents. The defendant brought them to New Orleans, and offered to sell them to Barnes, a tallow-chandler, but who would give nothing for them, because he did not consider them of any use.

Sporing Thompson and St. Ceran say that the kettles are worth a cent a pound for old iron, and do not know that they could be used for any other purpose. They would weigh three or four thousand pounds.

Hall says they are worth four or five hundred dollars to a person having use for them ; but he does not show that the plaintiff or any one else has use for them. It is true, he says, absolutely, they are worth four cents a pound. On the supposition that they weigh three thousand pounds, his valuation exceeds that of the district judge but by twenty dollars.

There is not the slightest reason to believe that the defendant acted in bad faith, or even without sufficient caution in purchasing and removing the property ; and any trouble it may cause to the plaintiff results from his leaving his property in an abanndoned situation on another person’s lot.

We see no sufficient reason to reverse the judgment of the district court, and it is affirmed: the appellant to pay the costs of this appeal.


author: Pueston, J.

text:
    John G. Myers v. Mathis Will.
    A suit cannot be maintained by one partner against another for a portion of specific funds, before there is a settlement of the partnership.
    APPEAL from the District Court of Jefferson, Clarice J.

      A. Maries, for plaintiff,

      Michel and Burns for defendant.
   The judgment of the court was pronounced by

Pueston, J.

The plaintiff and defendant were in partnership in a coffee house in the city of Lafayette, known as the Court Exchange. They had a lease of the ground for a term, on which they had erected the buildings of the coffee house.

On the 23d of January 1849, the plaintiff sold his interest to the defendant for $ 1800, the receipt of which was acknowledged. The sale contained this clause: “Finally it is agreed between the parties, that an equal division of the funds on hand belonging to the business and partnership shall be made, and that the debts due to the said concern shall also be collected and divided in like manner.”

The plaintiff alleges that there was on hand, at the dissolution of the partnership, funds to the amount of $419 80; that the defendant had since collected a further sum of $199 10; for the half of which sums, amounting to $309 90, he b™gs suit.

The district court was of opinion, from the evidence, that there were funds to the amount of $319 on hand at the dissolution of the partnership, and gave judgment against the defendant for half that amount; from which he has appealed.

To the plaintiff’s petition an exception was filed by the defendant, that he could only be called upon to render an account of the liquidation of the partnership even if he was the liquidator. The act of dissolution annexed to the plaintiff’s petition leaves no doubt on our minds that the defendant was to be the liquidator of the partnership. And that it was not fully liquidated at the dissolution is conclusively shown by the following clause in the act of dissolution. “Before signing it is further stipulated that all the debts of the partnership shall be paid out of the funds thereof on hand, before any division thereof be made.” Under repeated decisions of our Supreme Court, a suit cannot be maintained by a partner for the half of particular items of the partnership funds. 10 M. R. 433. 3 L. R. 136. 2 L. R. 451. 13 L. R. 415. 8 N.S. 280.

Justice requires that the cause be remanded; that the pleadings should be amended; that the defendant should render a full and complete account of all funds onhand at the dissolution of the partnership; of all accounts collected since, and of all partnership debts paid by him; also of any sums paid to his partner; and that the remaining funds and assets should be divided.

The judgment is reversed at the costs of the plaintiff; the cause remanded for further proceedings;. the costs of the district court to abide the final decision of the case.


text:
    John Buddy v. Steamer Vanleer et al.
    The act of 13th of February, 1816, to take the most effective measures in order to prevent the transportation of slaves, is strictly a penal law; and the same jury who find the accused guilty are to assess the damages to the owner of the slave transported.
    By the 1st section of the act of 25th of March, 1840, the taking of a slave, or suffering him to remain, on board of a boat engaged in making voyages, is made a legal presumption of the intention of the officers of the vessel to carry off the slave ; but this legal presumption may be rebutted by proper evidence.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      Wolfe and Abel, for Plaintiff.

      John W. Price, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff claims from the master, mate and owners of the Steamboat Panleer thirteen hundred dollars for the value of a slave named Ned, and damages caused by his employment on board the steamboat without his permission.

It is sufficiently established, that the mate of the steamboat hired the boy on board the boat on the 14th of March, 1849; that he went with her a trip to Attakapas and back to New Orleans, where she arrived about the 20th of March. The cholera was then prevailing in N ew Orleans to an extent considered by a witness as epidemical. Ned, being at work on -the levee, probably still in the service of the boat, took the cholera. He was requested by the clerk of the boat to go home to his master; he went away, but returned in half an hour, and was taken on board, where he had a brother in the employment of the boat. The brother was sent to let his master know that he was sick on board; no one came from the master until next morning a gentleman, representing himself to be the son of the master, came and took him away in a cab, and he died in his master’s house the same day. From the time he was taken on board with the cholera until he was removed much exertion was made to save him, by rubbing him with brandy, cayenne pepper, and by administering Dr. Cannon’s anti-cholera preparations: two persons having attended on him all night.

The plaintiff contends that the act of the 13th of February, 1816, “to take the most effective measures in order to prevent the transportation, or carrying away of slaves out of this State, against the will of their owners, and for other purposes,” and the amendatory act of the 25th of March, 1840, passed for the purpose “ of preventing slaves from being transported or conducted out of the State against the will of their owners,” have been violated; and that the master, boat and owners are liable to the penalties, and responsible for the damages prescribed by those acts.

The act of 1816 is strictly a penal law; heavy punishments are inflicted for its violation ; and the same jury who find the accused guilty of the offences prohibited are to assess the private damages to the owner of the slave can'ied away. It has no application to this case, and the facts above stated would not have warranted a conviction under it.

The first section of the act of 1840 prescribes, “ That, if in future any person finds one or more of his slaves on boar’d of a ship, steamboat or other vessel destined to make voyages out of this State, or from one part of the State to another, and said slave or slaves be on board without the written consent of the owner, the captain, master, and proprietors of said ship, steamboat, or other vessel, whether the said slave have been transported out of the State or from one part thereof to another part, or on the point of being transported, whether the said slaves have been hidden or not on board of the said ship, steamboat, or other vessel, the owners, master and captain of said ship, steamboat, or other vessel shall be presumed to have received said slaves on board of their vessel, or to have hidden them, (or to have suffered them to remain on board) with the intention of depriving their masters of them, and of transporting them out of the State, or from one part of the State to another. And this presumption of the law shall not be destroyed but on the testimony of two witnesses not employed on board of said vessel, and on corroborating circumstances.”

Now, Mr. Mason, plaintiff’s witness, testifies that a boy came to the house of the plaintiff early in the morning, on the 21sf of March, and gave information that his slave was very sick on board the boat, leaving no doubt it was the messenger sent by the mate to the owner to come and take him away. The witness went on board and took him away at the request of the mate. The plaintiff himself has thus completely removed the presumption of law that the master or mate had him then on board with the intention of removing him out of the State, or of depriving the owner of his slave by removing him from one port of the State to another. In the case of Winston v. Foster, the Jate Supreme Court very properly decided that the presumption of law was removed by the acts of the master of the vessel, which entirely repelled it. 5 R. R. 113. We are led to the same conclusion by the conduct of the officers'of the boat in the present case, that they had not the intentions which are essential to the crime.

The second section of this act imposes a fine of five hundred dollars, which is not claimed in this suit, and could only be inflicted after conviction in a criminal prosecution. It also renders the master, owner and boat responsible, insólido, for the value of the slaves that shall have been taken away from their masters who shall have lost them. This clearly implies that the slave shall have been lost in consequence of having been taken away from the master; as for example, if being taken out of the reach of the police of the parish, or beyond the recognition of those who knew him, he had escaped, or had fallen overboard, or had been sold, so as to be lost to his owner.

The civil action for the value of the slave, given by the amendment, in 1835, of the original act, is based upon the same supposition, that the slave is totally lost by the act or neglect of the officers of the boat. In the case of Buel v. The Steamer New York et al., cited by plaintiff’s counsel, the slave was lost to his owner in consequence of being carried out of the State by the steamboat. This is not only the manifest interpretation of the decision, but the court which rendered it so declared in commenting upon it, in the subsequent case of Winston v. Foster, 5 R. R. 113. In all cases, where a slave should be lost clearly in consequence of a violation of the law, the master and owners would be responsible for his value.

But in this case, it is clearly proved that the slave was lost by cholera, with which he was attacked in the city of New Orleans, the place of the residence of his master. The disease and death had no connection whatever with his employment on the boat, but was probably the consequence of an epidemic then prevailing in New Orleans, to which the slave might have been subject at any other place in the city as well as while working on the levee. The loss of the slave was clearly caused by the will of God, unconnected with the acts of the defendants, and is subject to the maxim, “ Actus Dei nemini facit injuream.” Whoever is blessed with property must bear the loss to which it may please Providence to subject it, and it must not be imposed upon those who do not own the property or cause the loss.

The plaintiff is entitled to recover the damage he has suffered by the loss of the time of his slave, because hired out without his permission, and without due precaution on behalf of the officers of the boat to ascertain that he was a slave, and that they had no right to hire him. His character as a slave may have been injured by their negligence, and other special damages may have resulted directly and immediately from the acts or negligence of the defendants and their agents. Such damages the plaintiff is entitled to recover Counsel fees for prosecuting this suit, as allowed by the district court, are not 'included in these damages; for there appears to have been neglect but not crime on behalf of the officers of the boat. Neither the record nor evidence shows the damages caused immediately by the defendants. That some occurred, we have no doubt; and, we think, justice requires that the cause should be remanded in order to ascertain them.

The judgment of the district court is reversed, at the costs of the plaintiff; and the cause is remanded for further proceedings, with a recommendation that the pleadings be amended: the costs of the district court to abide the final judgment of the case.


text:
    P. and L. Collins v. L. A. Pellerin.
    A defence should not be stricken out on account of the mistake of an attorney in pleading compensation for payment, the substance of the defence being the same.

      APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      W. C. Budd, for plaintiffs.

      Wolfe and Singleton, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

A suit between these parties, and involving the same contract was once before this court, and is reported in 5th Ann. 99. The present action is to recover the amount of a loan of $1400. The defendant acknowledges the receipt of the money, but avers that subsequent to this receipt the plaintiffs shipped a quantity of rope and cotton cuttings, and caused them to be sold for the purpose of paying themselves this debt of $1400 ; that said cotton and rope cuttings were worth the sum of $2100, which the plaintiff's are charged with having appropriated to their own use.

The district judge struck out the claim in reconvention and the allegations of the answer relating to this shipment, on the ground that the answer contained a plea in compensation, and gave judgment for the plaintiffs. The defendant has appealed.

We think that, substantially, the defence must be considered as containing a plea of payment, although in the answer the defendant alleges that the debt is extinguished by compensation. The pleading is certainly very bad, but the-attorney’s mistaking compensation for payment, does not alter the substance of the defence.

As this transaction is entire, if the defence is established at all, there maybe a balance on the shipment due the defendant, which he ought to recover, we think, in these proceedings, under his reconventional demand, which tho judge also struck out. The judge having refused to receive evidence under either head in relation to the shipment, we think the court erred in this particular.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings in accordance with this opinion ; the appellees paying the costs of this appeal.


text:
    Samuel L. Forgay v. J. L. Lewis Sheriff.
    Where the clerk of the court, under the act of 26th of March 1842, takes security for his cost only, the sheriff cannot recover his costs from the security; hut if the clerk has made a memorandum on his docket that the surety is for costs, the memorandum may have misled the sheriff! the clerk is responsible to him for the costs.
    APPEAL from the Fifth District Court of New Orleans, Buchanan J.

      E. T. Parker and W. H. Hunt, for plaintiff.

      Grymes, for defendant.

      Warfield, for warrantor.
   The judgment of the court was pronounced by

Eustis, C. J.

Under the 12th section of the act of March 26th, 1842, (vide laws of 1842, p 442,) an execution was issued against Samuel L. For gay, for the sum of $348 50, being the fees of office due to the sheriff of the parish of Orleans, in the case of M. Payne, a freeman of color, against William M. Lambeth, in which suit the execution states Samuel L. For gay was security.

The act of March 20th, 1839, provides that whenever a plaintiff in a cause shall be unknown to the clerk or shall not offer, in the opinion of the clerk, sufficient guarantee for the payment of the costs, the clerk shall have the right to require security to cover the probable amount of costs, inclusive of sheriffs fees.

The responsibility of Forgay rests exclusively upon his obligation taken by the clerk under thisact. . It is in those words: Marcellus Payne, f. m. c. v. Wm. M. Lambeth, Fifth District Court. I am security to the clerk of the Fifth District Court for his fees in this case. October 24, 1849. Samuel L. Forgay.

It appears to us as plain as words can make it that Forgay did not bind himself as security for the sheriffs fees, and that no execution could be issued against him for their amount.

Forgay enjoined the execution. He might have had it quashed on his simple motion. We think the judge erred in dissolving the injunction; and the judgment to that effect is erroneous.

With the proceedings in this suit has been cumulated a claim of the sheriff against the clerk for the amount of his fees, for which it has been contended that the clerk was bound to take security. The clerk had made upon his general docketamemorandumin this suit of Payne v. Lambeth, that Samuel L. Forgay was security for costs. Our impression certainly is that the clerk would be bound to the sheriff for these costs, because the memorandum may have misled the sheriff. But the judge not having considered this clause, and it being presented in an irregular and unsatisfactory manner, we decline acting on it.

The judgment of the district court is therefore reversed; and it is decreed, that the sheriff be enjoined from exacting payment of his fees in said case from the plaintiff; and it is further decreed, that the petition and call in warranty of the defendant be dismissed at his costs, and that he pay costs in both courts; reserving the rights of the defendant against P. LeBlanc by an ordinary action.


text:
    The State v. G. W. Cooper.
    On an application for a quo warranto against the defendant, and the Third Municipality, upon the ground that the defendant continued to usurp and hold the office of school teacher in the Third Municipality, to which the relator was entitled, and a decree that the relator he restored to the office, the judgment of the district court decreed that the defendant was not entitled to the office, and that the relator was. Held: That as there was no decree restoring the relator to his office, or vacating the appointment of the defendant, the judgment could not be executed, was not in conformity to law, and could not he appealed from. To have entitled the parties to an appeal, the judgment should have conformed to C. P. art. 870, et seq.

    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. An for a writ of warranto and decree, the relation Philip Prendergrast.

      LeBlanc, jr., for appellants.

      J. Lugenbuhl, for relator.
   The judgment of the court was pronounced by

Eustis, C. J.

The petition alleges that the relator was duly appointed, under the authority of the Council of the Third Municipality of New Orleans, principal teacher of the second ward public school, of said municipality, and that he held and was performing the duties of said office, at a salary of sixty dollars per month, up to the 29th of June, 1850 ; that about that date, he was ejected from the school-house by G. W. Cooper, with the assistance of others, and by violence prevented from continuing the performance of his duties as teacher; that said Cooper claims to perform the duties of said office, without having any lawful authority so to do, and continues to usurp and hold the same. The relator asks for a writ of quo warranto, and a decree restoring him to his said office; and for general relief. The answer sets up the appointment of Cooper to the office.

The district judge decreed, that'the defendant is not lawfully entitled to the appointment of principal teacher of the boys’ school, second ward, of the Third Municipality, of the city of New Orleans, which he now holds; and that the relator is lawfully entitled to the same; and that the defendant pay costs.

The defendant and the municipality have appealed. There is no decree restoring the relator to his office, or vacating the appointment of the defendant. The judgment cannot be executed as it is written, and is not in conformity with the law. From a judgment rendered under the provisions of the Code -of Practice, art. 870, et seq., the party may have his appeal.

The appeal is therefore dismissed, at the costs of the appellant.


text:
    Samuel McBurney v. C. W. Bradbury.
    Where the owner of a building- pays the contractor, after having received notice of the claim of one of the workmen employed in the construction of the building, he is still liable to the workman.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Bartlett and Rand, for plaintiff.

      Goold, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff was employed by Robinson and Shaw to slate certain buildings which they had contracted to erect for the defendant. Failing to obtain payment from Robinson and Shaw, he served on the defendant an attested copy of his account against them. The defendant refused to pay it, and the plaintiff brought this suit against him and has obtained judgment in the court below for the amount of his claim.

The defendant sets up as matters of defence, that as the building progressed he paid regularly the installments due under his building contract, until the mechanics employed by Robinson and Shaw refused to go on with the work, unless he assumed to pay them, and that he found himself compelled to accede to their demands. He alleges that those payments were not voluntary, and should not be considered as made in anticipation within the meaning of the act of 184.4. He further claims demurrage and damages for a violation of the building contract, in the erection of the kitchen.

Robinson and Shaw having gone on with the contract, finished the houses and delivered them to the defendant, the payments alleged must be considered as having been made to them; so far as the plaintiff is concerned, his rights cannot be affected by the facilities which the defendant chose to give to Robinson and Shaw, beyond the stipulations of his contract with them. Under that contract the defendant should have had one thousand dollars in his hands when the attested account of the plaintiff, amounting to three hundred and seventeen dollar’s was served upon him.

We are of opinion with the district judge, that the defendant has failed to make out his claim for damages; and if he should be entitled to demurrage by reason of the delay in completing the building, about which we express no opinion, the amount paid by anticipation would still be more than sufficient to satisfy tho plaintiff’s claim. Indeed, the amount thus paid would be sufficient for that purpose, even if all the payments made for work done under the contract were deducted from the total amount which the defendant was to pay. He has, therefore, no pretext for resisting the plaintiff’s demand.

The judgment is affirmed, with costs.