author: Ilsley, J.

text:
    Wm. D. Lewis & O’Neil—Skipwith & Osborn, Subrogated, v. The Ship “Success” and Owners.
    Customs result from a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent.
    When the question is of a custom or usage, and it is not known to those who, from business and connections, have the best moans of knowing it, the ignorance of it is, in some sense, positive testimony of its non-existence.
    The Carrier is not responsible for delay in th e voyage on account of boisterous weather, or adverse winds, low tides, or the like. These are dangers and accidents of the navigation over which he has no control, and against which his contract contains no warranty
    The law applicable to Common Carriers is one of great rigor, and discountenances negligence and want of care in Common Carriers, who are required to transport goods and merchandize for the public, carefully, safely and expeditiously.
    If the damage has proceeded from an intrinsic principle of decay, naturally inherent in the commodity itself, whether active in every situation, or only in the confinement or closeness of the ship, the merchant must as well as pay the freight, as the master and owners are in no fault; nor does their contract contain any insurance or warranty against such an event.
    The value of merchandize at the port of destination is the basis of valuation in contracts of affreightment; and, when goods are damaged in transitu, the market value of the goods, at the port of delivery, is the standard of damages.

      A receipt for goods, in a damaged condition, by the consignee, docs not affeot his legal rights.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. C. B. Singleton, for plaintiffs and appellants.

    If a vessel, by any act or neglect whatever of man, shall be rendered unfit to perform the in-tended voyage, she thereby becomes unseaworthy. The defendants were bound to take such steps as would enable them to perform the voyage •with reasonable despatch. No mistake or oversight can protect them from damages in such case, even where the greatest care has been exercised. 2 Parson’s Mar. Law, 137. 1 Arnould on Ins. 675, 681. Angelí Com. Car. sec. 172, 173'. 4 An. R. 567. 5 An. 264. 6 N. S. 645.
    The learned counsel for defendants contend that the damage was produced by natural causes, for which they are not liable. Natural causes do not always exempt from liability for damage. If the act of man, by carelessness, or otherwise, contributes in any manner in producing the damage, then the common carrier is liable. Angelí on Carriers, g 67,174. By natural causes is meant the act of God, such as lightning, storms, floods, &c., &c. The Superior Court of Errors and Appeals of Delaware, say : “By the act of God,” is meant such inevitable accident as cannot be prevented by human care, skill or forethought, but results from natural causes, such as lightning and tempests, floods and inundation. McHenry v. Railroad Co. 4 Harring, (Del.) B. 448. Angelí on Common Carriers, \ 154. Ilow hopeless is the case of defendants, when these principles of law are applied to it. Was the condition of the bar always looked into by prudent persons, loading vessels in New York for New Orleans ? Yes. Could the condition be easily ascertained ? Yes, from one to five days. The bars become notoriously bad about the 1st of January, about which time the ship Mary G. Campbell grounded on the bar, and remained about ninety days. She drew nineteen feet.

      Durant <& llornor, for defendants.

    — If the detention of the ship was the cause of damage to the cargo, it was a cas fortuit specially excepted in the bill of lading.
    Corn and oats are, in the language of Insurers, “articles perishable in their own nature.” 1 Philips on Insurance, $ 54.
    The expressions of our Code (Louisiana Code, 2725) are “accidental and uncontrollable events. ”
    What produced the detention of the ship at the bar ? Was it because she drew too much water to permit her crossing it ? All the evidence shows that she was loaded to a very usual draft; and even if she had drawn but sixteen feet, still she would have been detained. It was the unusual, accidental, unavoidable, and uncontrollable condition of the bar that created the detention. It is impossible to tell what part of this condition is attributable to the act of man, and what part to natural causes ; but the whole condition Of the bar, so far as it prevented the Success from crossing, can in no manner be attributed to the defendants or to their agents ; and hence cannot be the basis of any responsibility for damages.
    Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him. Hadley v. Clarice, 8 Durnford & East. 259.
    If, by any act of misfortune, not amounting to the act of God or of the public enemy, the transísortation of the goods is obstructed or delayed, the carrier will not be answerable for the delay Sb occasioned, if he has used a reasonable degree of exertion and diligence in the transportation. Angelí on Carriers, \ 289. •
    In respect to the time of delivery, the carrier is responsible only for the exertion of due diligence. In this respect, Common carriers stand upon the same ground with other bailees. Parsons v. Hardy, 14 Wendell, 217.
    This doctrine was reaffirmed in Bowman v. Teal, 23 Wend. 306; and is enunciated likewise in 4 Annual, 563, Railibone v. Neal, though in the reasoning the carrier’s responsibility for his delay in delivering the cargo is made, very correctly, to depend upon the unseaworthiness of the ship, before and at the time of leaving port. See also Murrell v. Hixeys, 14 An. 298.
    This case, from 23 Wendell, arose from the delay caused by the freezing of the canal in New York; and this freezing of our canals and rivers is, in most respects, an event causing delay to the Carrier, very similar to the shoaling of the bars at our passes. If an extraordinary winter at the North should block up their canals and rivers a month earlier, and continue a month later, than usual, the case would be identical in principle with the one now before the Court. But what “ ordinary forecast” would anticipate such a winter ?
   Ilsley, J.

This is an action upon a contract of affreightment. On the 17th, 18th and 19th of January, 1859, the plaintiffs shipped, in good order and condition, on board the ship Success, then lying in the Port of New York, and bound for New Orleans, some corn and oats (the quantity, quality and condition of which, at the time of shipment, being abundantly proved), to be delivered in the like good order and condition at the port of destination (the dangers of the seas and fire only excepted). The only qualification in the bill of lading, for either the corn or oats, was that of “ quantity un7cnown,” in the latter.

The Success sailed from New York on the 23d January, 1859, and in tern days thereafter reached, without accident, Pass a Bi’Outre, one of the entrances into the river Mississippi; but owing to the slioaliness of the water in the Passes she was unable to cross the bar, and was detained thereat some sixty-seven days (a detention unprecedented), and only-reached New Orleans on the 13th April, 1859. When the ship at length reached the city, the plaintiffs’ corn and oats were so much damaged that they were rendered unmerchantable, and the present action was instituted to recover from the defendants the sum of six thousand one hundred and forty-eight dollars and forty-six cents, for the loss and damage sustained by them, by the failure and neglect of the defendants to deliver the corn and oats within a reasonable time,’“in good order and condition.”

The ship was attached and regularly bonded; and the defendants, alleging want of authority in the plaintiffs’ agent to sue it out, took a rule on them to dissolve it, which was properly dismissed, as we find in the record; besides the telegraphic dispatch, a letter to the agents from the plaintiffs, instructing them to institute legal proceedings; and, as auxiliary thereto, to use every conservatory means; and this letter was received by the agents three days before proceedings were commenced.

The defendants plead the general issue, followed by a special denial of the neglect, carelessness and want of skill on the part of the persons in the charge of the Success. They aver that they were ignorant of the interior condition of the bags and sacks at the time of shipment, and that they delivered them in the same good order, outwardly, as that in which they had been received, except a quantity (less than twenty bags) of oats which were stained with saltpetre. They then refer to the departure of the’Success from New York and her arrival at Pass á L’Outre, where they attribute her detention to a succession of fortuitous circumstances, over which they could exercise no control; to the shoaliness of the water from natural causes, increased by incoming and outgoing ships lying for some time at and on the bar, thus preventing the egress and ingress of other ships, and obstructing the progress and effect of the water of the river in its way to the sea ; and they aver that, during the delay, all efforts were made by the captain of the Success to obtain a conveyance across the bars, but in vain; and, finally, that when the water deepened sufficiently, the Success made her way with all proper expedition to this city.

The defendants then reconvene for the amount of their freight and primage, seven hundred and eighty-four dollars and nineteen cents, with interest and costs, subject to a reasonable deduction for the oats damaged by saltpetre.

The lower Court rendered judgment on the original demand in favor of the defendants, and also in their favor on their reconvcntional demand, deducting thirty dollars for the twenty sacks of oats damaged, but without interest. The plaintiffs have appealed.

That the progress of the Success was arrested by a natural obstruction (the bars at the entrance of the river) is not to be doubted ; nor is it less questionable that, without the protracted delay thereat, the grain would not have been delivered in a damaged condition ; and hereupon we must determine what, in the eye of the law, caused the detention of the Success and the injurious consequences thereof to the plaintiffs. Was it the unusual and unprecedented shoaliness of the water ; or was it the want of care and diligence in the persons in charge of the vessel in loading her too deeply ? On this question a vast deal of testimony has been adduced by both parties to the suit; and, keeping that testimony in view, we will proceed to the examination of the points made by the plaintiffs’ counsel, which involve the whole merits of the case.

He contends, 1. That the ship Success was unseaworthy for her intended voyage when she left the port of New York, in consequence of being-loaded too deeply to cross the bar, and in violation of the custom and usage of the port of New York on that point.

2. That she became unseaworthy by the gross carelessness, negligence or incompetence of those in charge of her, whose duty it was to see that she was in proper condition to perform with reasonable despatch her intended voyage. They could easily have obtained the information necessary to enable them to load her properly, so she would not be detained on the bar.

3. That her unusual detention of nearly two months and a half was the result of incompetency or wilful negligence on the part of her master, in not availing himself of the necessary means at his command to cross the bar, and perform the voyage in time to save the corn and oats from destruction.

4. Admitting, for the sake of argument, that the unusual dentention was unavoidably caused by the dangers of the seas, excepted in the bills of lading, still the master and owners are liable for the damage to the corn and oats, in not taking proper care of the cargo during the said detention.

I and II. The position assumed by the plaintiffs, in their first two points, is this : that it is the duty of the master and owners of ships loading at the port of New York for New Orleans (a duty which the usage and custom of that port render obligatory upon them) to obtain the speediest and surest information as to the exact condition of the bars at the entrance o'f the Mississippi, so that by loading their ships with special reference to that condition, no unnecessary delay shall occur in making thei^ voyage and delivering their freight.

This was not the opinion of the District Judge who tried the case in the Court below. He held that “ it cannot be expected that ships trading between two ports should load with reference to the possibility of a certain stage of water. The ordinary and usual stage should be their guide, and if they load with reference to the ordinary condition of the entrance of the port, this is all that can be demanded of them.”

We learn from witnesses (pilots for the Passes of the Mississippi), whose peculiar avocations enable them to ascertain accurately the usual and ordinary drafts for ships bound into the river ; these witnesses, and others, too, say that the draft of the Success at the time she reached the Pass would be deemed an ordinary and usual one. The year 1859, it is true, was an exceptional and unprecedented one in this respect; but it was not, nor could it have been, an ascertained fact, what detention a ship loaded as usual would undergo, if she even met any detention at all; a,nd this for the evident reason that the depth of water on the bars depended altogether on causes and circumstances upon which no correct and certain estimate could be formed.

A ship loaded with special reference to the condition of the bar, at the time of loading, would have been no more certain of entering with her load, than a ship loaded as customary, with hers ; and, if on her arrival, the vessel drawing the least water found, as she well might, enough of water to admit the vessel drawing the most, she would discover that she had refused taking more cargo, without any practical benefit resulting from it. In a state of things naturally so uncertain, the view taken by the District Judge is a reasonable one; and rules founded in reason and common sense, and resting on sound, practical considerations, can be, at all times, safely adopted. The contract of affreightment did' not, in the absence of any particular usage or custom, contemplate that the Success would draw no more water than happened to be on the bars, when she was receiving her cargo.

But the usage is relied on as having entered into the agreement, and it is urged that the non-observance of it justified the present action for damages. We are not satisfied that any such usage or custom did exist, notwithstanding the proof adduced to sustain it.

It had not the requirements of article 3, Louisiana Code, to constitute a custom ; and the test laid down in Pratt v. Thatcher, 9 Peck, is lacking: “When,” in that case, says Parker, C. J., “ the question is of a custom or usage, and it is not known to those who, from business and connections, have the best means of knowing it, the ignorance of it is, in some sense, positive testimony of its non-existence.”

It was certainly not known to any of the officers on the Success, nor does it appear to have been deemed obligatory, or even known to the agents of the line of ships in New York, plying between that city and New Orleans. On this point II M. Allen, the master of the ship James R. Keeler (whose ship-drew 17 feet 4 inches, and lay fifty-four days on the bar), will inform us; He observes : “I made very strict enquiries as to the condition of the bars, of the agents of the line trading here (New Orleans), they receiving constant advices from here, and being best informed. They told me there was not the slightest risk, and even advised me to load at eighteen feet; that they had been loading at seventeen and a half, and eighteen feet, and that I was very foolish not to take in any more cargo.”

This was, indeed, singular advice, and still more singular conduct, given and observed by ship .agents in the trade, had such a custom or usage in relation to loading been then (in January, 1859) existing at the port of New York.

We attribute the unusual detention of the Success, like that of the James K. Keeler, at the bars, to their accidental and uncontrollable condition, unusually protracted in 1859, as the pilots all .testify, and also to the consequent accumulation thereat of ingoing and outgoing ships; and we think that, as the Success had an ordinary draft of water, and not exceeding the draft of ships loaded by the New York and New Orleans shipping agents, she cannot be deemed to have been unseaworthy in that particular, when she left the port of New York.

In the case of Boyle v. McLaughlin, the Court observes : “ The carrier is not, responsible for delay on the voyage on account of boisterous weather, or adverse winds, low tides, or the like.” These, says the Supreme Court of the United States, in Clark et al. v. Barnwell et al. 12 How. 283, “ are dangers and accidents of the navigation over which he has no control, and against which his contract contains no warranty.”

As was well observed by Marshall, C. J., in Boyce v. Anderson, 2 Howard, 155, the law applicable to common carriers is one of great rigor, and though to the extent to which it has been carried, and in the cases in which it has been applied, like those referred to by the plaintiffs in this case, we admit its necessity and policy, we do not think it ought to be carried farther or applied to new cases.

We therefore deem the first and second points untenable.

HI. It seems to be conceded that the only possible means (every other •one attempted having failed) of getting the Success over the bars, was by lightering her; and why was not this mode resorted to ?

S. Porter, one of the witnesses (a coast pilot), says, in connection with this matter: “The months of February and March are the roughest months of the year at the Passes (and this is corroborated by other testimony), and there is danger attending the lightering of vessels during rough weather ; and when the sea is rough vessels cannot lie safely alongside of each other.”

On the first arrival of the Success at Point á L’Outre, the master might, say the mates, perhaps, have procured a lighter for the Success, but the weather was then unsettled, and the detention may well have been supposed to be merely temporary. It was very unusual for vessels to lighter; .and, as the cargo of the Success was a general one, and, in all probability, that part of the cargo uppermost was the most valuable (as the grain was in the lower hold), the most valuable part of the cargo would have been thus exposed by transhipment, in order to save the portion of it belonging to the plaintiffs. It is true that four of the ships lying at the Passes, simultaneously with the Success, were lightered over the bars; but this was only fifty-four days after their arrivals, respectively; and under what circumstances they were lightered, we are not informed.

The Success did, at the same time, make a similar attempt to lighter, but the only steamboat that could be procured for that purpose, had only room on her guards, and the captain of the Success very properly refused thus to risk his cargo.

We do not, therefore, in view of all the circumstances, consider the master of the Success blamable for not resorting to lightering to cross the bars.

IV. It must be here observed, that the commodity shipped by the plaintiffs on the defendants’ ship was bona peritura. And it has been held “if the damage has proceeded from an intrinsic principle of decay, naturally inherent in the commodity itself, whether active in every situation, or only in the confinement or closeness of the ship, the merchant must as well as pay the freight, as the master and owners are in no fault; nor does their contract contain any insurance or warranty against such an event. 12 East. 318; 4 Camp. 119; 6 Taunt. 65; Abbott on Shipping, 428.

But, if it can be shown that it might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. And the same rule applies in the case of damage on account of the humidity and dampness of the ship; which is, more or less, incident to all vessels engaged in trade or navigation, especially those upon the high seas. 12 Howard’s Rep. 283.

The matter to be now inquired into, therefore, is, did the persons in charge of the “Success” bestow on the cargo such care, and pay such attention to it, whilst she was detained at the bars, as they should have done ?

There is some discrepancy in the testimony on this point. On the one hand, the pilot who had charge of the vessel, and who says he was in her. two-thirds of the time she lay at the Pass, never saw the hatches open but once, and that was when he ordered them to be taken off to trim the cargo ; and that was on a bright, sunshiny day ; and the master of the Success himself, when late in March, or early in April, he was advised by one of the consignees to air the cargo, replied that he, would attend to it when he returned. On the other hand, the entries in the log-book of the ship, which the first mate makes part of his evidence, show that some steps were taken in that direction. We will refer to this last statement.

The ship reached Pass-á-Loutre on the 4th February, 1859. Between that day and the 13th of that month there had been some clear weather, and on the last day mentioned the hatches of the main deck were opened “to air the cargo.” Thence to the 22d March next following, the weather, generally, was foggy, cloudy and rainy. There were however during that period some fine days, viz: on the 10th, 14th, 17th and 19th, and the hatches were only again opened on the 22d March.

On the 27th of March, there is an entry that the cargo was suffering from fog and heat.

The weather during the detention of the ship was generally foggy and damp; yet there were some intervals of clear, fine, sunny days; but the dampness and humidity of the atmosphere necessarily penetrated into the Ship, and it, therefore, was of the utmost importance, in order to counteract its injurious effects on the cargo, that the ship should be aired and ventilated upon every suitable occasion and by every practicable means.

The hatches of the main and lower decks, although the removal of the one on the lower deck occasioned some trouble in breaking cargo, should have been removed upon every possible occasion, and windsails introduced as often and effectually as possible; and neither of these things were done, as we conceive, as often and effectually as they should have been. Up to the 22d March the hatches were only removed twice, and it was only on the 12th April that the hatches on the lower deck (the plaintiff’s grain being in the lower hold of the ship) were taken off. By diligent attention to this important and cautionary duty, no reason can be perceived why the plaintiffs’ grain, like that on the ship James R„ Keeler, which was delivered in excellent condition, should not have been delivered to them in like good order.

The law discountenances negligence and want of care in common carriers, who are required to transport goods and merchandize for the public, carefully, safely and expeditiously. We do not hold the master and owners of the Success liable for damage to the plaintiffs’ grain on account of her protracted detention, which was unavoidable, and within one of the exceptions of the bill of lading; but for lack of due and proper care of the property during the time she was so detained.

The difference in the weight of the grain as charged to the defendants on the one side, and credited to them on the other, is very satisfactorily accounted for. It underwent the heating process, which is the effect produced by the decomposition of vegetable matter. The heat subsides when the substance of the oats has utterly perished, the chaff or outer coating of the oats moulds and dries, and the grain becomes exceedingly light. It must necessarily be light, when there is no longer any substance in the grain.

It has been frequently held by this Court, that the value of merchandize at the port of destination is the basis of valuation in contracts of affreightment; and that when goods are damaged in transitu the market value of the goods, at the port of delivery, is the standard of damages. 6 N. S. 60, 7 L. 240, 4 A. 464, 10 A. 413, 11 A. 203, 11 A. 324. There is evidence in the record to show what was the market value of corn and oats in New Orleans when the Success should, without accident, have reached that port, say about the 8th February, 1859.

On that day the value of oats of the quality of the plaintiffs’ was eighty cents per bushel, and of corn of the same quality ninety-five cents.

It is not shown what those commodities were worth when the Success did arrive; but it appears that long after the 8th February the tendency was upward, and we think the first estimate may be safely assumed as the correct one.

The demand of the plaintiff wak for six thousand one hundred and forty-eight dollars and forty-six cents, which must be reduced to the sum of five thousand seven hundred and ninety dollars and twenty cents, to which last sum with legal interest we think he is entitled to judgment, notwithstanding the receipt by him of the grain in its damaged state, which did not affect his legal rights. See Rathbone v. Neal, 9 A. 567.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that judgment in solido be, and it is hereby rendered, in favor of Skipwith & Osborne (in liquidation), Samuel Smith & Co. and J. A. Lum & Co. subrogated to the rights of William D. Lewis & O’Neil, plaintiffs, and against Arthur Childs, master of the ship Success, and part owner thereof, and Joseph Day, Moses Chase, Joél Huston, D. E. Chase, Rebecca Sand, E. A. Child and J. O. Nathan, all part owners of the said ship Success, for the sum of five thousand seven hundred and ninety and twenty-one hundredths (§5,790 21-100) dollars, less the freight on the grain, seven hundred and fifty-four ($754) dollars, with legal interest thereon, viz: five per cent, per annum from the seventh day of May, 1859, until final payment, with all the costs of this suit.

It is further ordered that the plaintiffs’ lien and privilege, by virtue of the writ of attachment on the property seized, and also their lien and privilege on the ship Success created by law on vessels in favor of those whose goods and merchandize have been damaged while in possession of vessels under the contract of affreightment, be recognized and enforced.


source: Caselaw Access Project

author: InsLEY, J.

license: Public Domain

text:
    Sebastiano Galliano v. Leon Pierre & Co.
    As a general rule, tbe validity and effect of a contract are to be determined by tbe law of tbe place where it ivas made; if it is valid there, it is, under the general law of nations, valid everywhere, by tbe implied consent of the parties. But the rule is subject to the exception, that no nation is bound to recognize or enforce contracts injurious to its own citizens or subjects; and tbe enforcement., by one nation, of contracts made under the laws of another, rests on a principle of comity, which cannot be so far extended as to violate the positive legislation of the other.
    The legal damages for a failure to pay a stipulated amount in gold cannot possibly exceed that amount in any lawful currency.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant & Hornor, for plaintiff and appellant.

    — Petitioner sues on a «barter party and bills of lading for the payment of freight and damages in gold, for the carrying of certain goods from Havana to New Orleans, $2,199 44.
    Defendants except to the captain appearing in this suit, pray over of his authority, and the names of his owners.
    •This exception was overruled, and we think rightly. L. C. 3213.
    The answer-is a general denial. Judgment was rendered for $1,399 44, interest and costs, virtually, payable in current funds; and from this judgment, after a labored effort to obtain a new trial, the plaintiff has appealed.
    The charter party is dated at Havana, 30th July, 1862. The parties to it arc Galliano (the plaintiff) and Don Luis Petit. The important part of the contract reads as follows:
    “On the faithful delivery of the cargo, the consignor promises to order payment of the freight in cash and without discount en efectivo (in hard money, real money, coined money, gold or Spanish milled dollars — not paper money,) in the port of discharge, at the rate of, etc., etc.”
    The sole point in the case is, shall we be paid in gold? Or shall this contract, made in Havana, and a law between the parties, be satisfied and paid, after the services have been rendered, by a few old rags and a little printer’s ink? The very statement of the proposition displays its absurdity.

      Let us look at the reason's urged toy the lower Judge for denying us the prayer of our petition. They are three in number.
    First — The charter party is not shown to have been made in behalf of defendants, nor knowledge thereof brought home to them prior to the institution of the suit; they are bound only by the bills of lading', which do not contain the stipulation to pay freight cash without discount era efectivo; and the evidence shows that when consignees are to pay the freight-in specie, it is so stipulated in express terms in the bill of lading.
    The fact that the charter party and the bills of lading are connected and form one and the same transaction, results from the signature of Luis Petit to each one of the ship’s bills of lading, signed by him as charterer, “como cargador.” This proof is conclusive. “The charter party is the contract for the hire of the ship, and the bill of lading for the conveyance of the cargo. Kent, *207.
    “The terms of hiring a ship are almost always confounded with the terms of carrying the goods, because the captain, who charters his ship as representing the owner, binds himself personally, at the same time, to take care of, during the voyage, and to deliver at the time and place agreed on, the goods in Ms charge. From this it generally results that instead of making a charter party, whose object is to prove that such a person has acquired the right of occupying the whole or only a portion of a ship, and then a bill of lading for the purpose of proving that such goods have been sent on board in conformity to the original contract, people generally content themselves with a bill of lading, which implicitly takes for granted and contains the first contract, just as every effect proves a cause. Besides, when the lading is done by the owner, it is impossible to have a charter party, since the owner cannot be the hirer of his own thing.” 3d Pardessus, 163; 2d Boulay Paty, 300.
    Nothing can be clearer than this. The charter party is the cause, the bill of lading the effect. It is similar to the case of a sum of money borrowed on mortgage, when notes are given for the re-payment of the loan. The act is the cause, the notes are the effect. To give the notes their legal operation can only be done by reference to the act. In the present case, should there be any discordance between the charter party and bills of lading, the cause must govern the effect.
    The fact that the bills of lading held by the defendants do not contain the words, “Luis Petit, como cargador,” is readily explained, and is the natural result of the universal usage on this subject.
    Kent says (3d vol. *207): “ There are commonly three bills of lading; one for the freighter, another for the consignee, factor or agent abroad, and a third is usually kept by the master for his own use.” The bill of lading retained by the ship is never signed by the captain, for it is a useless formality. He retains it for his own convenience, and if needful he may sign it at any time.
    In precisely the same way, Luis Petit “como cargador” places his signature to the ship’s bill of lading; but it is, with him, a vain formality to affix it to the bills of lading he retains. It is thus seen that this fact that the ship’s bills of lading are signed by the charterer and not by the captain, and that defendant’s bills of lading are signed by the captain and not the charterer, is of no importance whatever in the decision of the case. The ship’s bills of lading are signed by the charterer, and the charter party is unquestionably the contract of the parties. The bills of lading are only collateral. 1st Bell’s Commentaries, 542; Abbott on Shipping, *278, 321.
    And if there be a difference between the charter party and the bills of lading, the former governs the latter. Flanders on Shipping, 515; Abbott on Shipping, *278; Chitty on Carriers, *150.
    It is altogether inconsistent with the regularity of judicial proceedings, to permit a solemn contract in writing to be overthrown by vague evidence of an uncertain usage.
    The next ground taken by the Court below is: “The charterer bound himself and not the defendants, in the charter party.”
    This admits virtually our whole case. The bills of lading are identified with the charter party by the signature of Luis Petit “ como cargador.” The goods set forth in the bills of lading are the goods described in the charter party. The rate of freight is the same, exo&pt that the charter calls for payment en efectivo and the charterer bound himself to pay en tfeciivo by the charter party.
    The consignee is bound whether he acts in the capacity of principal or of agent. In either case, he is bound by the charter party; for it is his own act, or the act of his agent, for which he is liable.
    It is not contended that defendants have not received the goods, nor do they refuse to pay for the freight. The mere receipt of the goods makes them liable for the freight. By this act they obtained possession as owners. They never gave up their principal’s name. We are entirely at a loss to know how they can be permitted to satisfy their obligation by a payment “in current funds” — a term unknown to the laws of our country, vague and uncertain in its meaning, and destructive to all fair commerce.
    The contract was made in Havana, where the currency was Spanish, Mexican and South American gold and silver. The printed part of the charter party which reads ‘ ‘ al cambio corriente sobre Londres” was stricken out, because the contract was that the freight should be paid in specie, etc., etc. He is as clear as the sun at noonday in his deposition ; and gives the law as well as the facts of the case, like an intelligent, upright-business man. Compare his testimony with that of Luis Petit!
    But the clause “he or they paying freight” was inserted for the express benefit of the ship owners. Sheppard v. Le Bemales, 15 East. 565. Why should it be so construed as to work them an irreparable injury ?

      Michael Hahn and J. Magne, for defendants.

    — The defendants, who have always been ready to pay in currency, deny to have ever contracted to pay otherwise, as shown by the bills of lading which are their only contract ; and deny having any thing to do with the charter party, which is, as to them, res inter alios acta. The judgment of the District Court was in favor of the defendants and the plaintiff has appealed.
    I. — There is nothing in the record connecting, in any way, the defendants with the charter party : and this is conclusive.
    But, says plaintiff: Petit, the charterer in Havana, signed my bill of lading oomo cargador (meaning as shipper,) and this fact is a sufficient link. We humbly think that it is no link at all. The chartering of a vessel is a commercial speculation of daily occurrence. The charterer expects to receive from the shippers or consignees a higher freight than the one he pays to the ship owner; if he succeeds, he is a winner, if not he loses his expected profit; and when he ships goods to his correspondents by the ship he has thus chartered he is merely, as to them, a shipper; and the consignees of the goods have obviously nothing to do with him but to pay the freight of the goods as per bill of lading ; and whenever the charterer acts for the account of the consignee, he states in the bills of lading that “ the freight is to be paid as per charter party.” Buggies v. Buckner, 1 Paine C. C. Eep. 359. Certain lots of mahogany, 2 Sumner C. C. Eep. 590", 604. All this is notorious, agreeable to law, commercial usage and common sense. Whilst, according to the plaintiff’s opinion, all the consignees of goods should be bound by a charter party to which they were not parties, and the very existence of which is unknown to them : a doctrine which is clearly unsound and untenable.
    It is here to be observed that art. 800 of the Spanish Godigo de Comercio, which is in force in Havana, requires the shipper to sign one bill of lading to be delivered to the master, and requires the master to sign as many as are required by the shipper : El cargador firmara un conocimiento que entregará al capitán; el capitán firmará tantos quantos exije el cargador. Cod. de. Com., art. 800. Hence we see that the bills of lading-offered in evidence by the plaintiff are signed by the shipper, p. 5 to 6 ; and those offered by the defendants, p. 47 to 59, are signed by the master.
    And the plaintiff himself was so well aware of the absolute want of connexion between the charterer Petit and the defendants that he asked from one of Ms witnesses in Havana, Cejas, p. 37, “what were the legal relations between Petit and the defendants ? or whether Petit was the agent of the defendants?” to which the witness answered: “that he knew nothing about it ” — and Cejas was the ship broker who negotiated the charter party between Petit and the plaintiff, and who signed it as a witness.
    H. — Being only bound by our bills of lading, which stipulate that the consignees shall pay so many dollars and cents for the freight of the goods delivered to them, it is obvious that we are bound «to pay in the legal cur■rency of the country — nothing more — and this we have offered to do, both before and after the institution of the suit.
    It is shown that other consignees of goods, received by the same ship, and whose bills of lading were of the same tenor as our own, paid their freight in currency without objection on the part of plaintiff.
    It is shown also that whenever the master intends to receive his freight in gold, in this country, for goods shipped in Havana, he stipulates in the bill of lading: “payable in American gold.” Hence the irresistible inference is that, in this case, the master had intended to be paid for his freight in currency.
   InsLEY, J.

The present action was instituted by the master of theSardinian brig Nuestra Señora Del Buen Camino, against the defendants, to recover from them, in gold, either coined or native, the sum of thirteen hundred and ninety-nine dollars and forty-four cents, for freight of certain merchandize, shipped in the port of Havana, on the said brig, by one Louis Petit, the charterer thereof, and consigned to the defendants in New Orleans.

The plaintiff also claims the additional sum of eight hundred dollars in gold, being the stipulated penalty for non-compliance with the contract of charter party, and interest thereon from the 20th October, 1862, with Special privilege on the property sequestered.

The defendant excepted to the plaintiff’s right of action for want of alleged interest in the claim sued for, and because ho is not. the agent of the owners of the brig, and has no authority or power to prosecute the suit, and has not given the names of his constituents, the real plaintiffs in interest, as such. This exception was overruled by the Court below, but, as our attention is not specially called to the exception, we presume it is waived.

No objection is made to the plaintiff’s claim for freight, as to amount, but the defendants contend that they arc only bound by the bills of lading, and not by the charter party; and that what they do owe, is onlyexigible in the national currency of the United States (treasury notes), which they have offered to pay.

This case must be goverened by the law of Louisiana, for, although the contract of affreightment was entered into in Havana, it was, by its terms, to be executed here. See the case of Beirne v. Patton, 16 L. 589.

As a general rule, the validity and effect of a contract are to be determined by the law of the place where it was made; if it is valid there, it is, under the general law of nations, valid everywhere, by the implied consent of the parties. C. C. 10; Groves et al v. Nutt and wife, 13 A. 117.

But the rule is subject to the exception that no nation is bound to recognize or enforce contracts injurious to its own citizens or subjects ; and the enforcement, by one nation, of contracts made under the laws of another, rests on a principio of comity, which cannot be so far extended. as to violate the positive legislation of the former. Mary v. Brown, 5 A. 269.

Yiewed, then, as a local contract, it is, we think, immaterial whether the defendants’ obligation is to be controlled by the charter party or by the bills of lading. Whether by agreement it' is to be satisfied in one-species of currency or in another, it is sufficient reason for courts which recognize the laws of the United States as paramount, to refrain from specifying, in their judgments, in what particular kind of currency moneyed obligations are to be satisfied.

United States treasury notes, by the act of Congress of 25th February, 1862, are not only made money, but they are a lawful tender for all species of debts, private as well as public, with some exceptions in the latter; and, were courts to decide that nothing but one kind of currency, whether metallic or paper, should be received in satisfaction of their judgments, they, would thus, by sustaining agreements to that effect, over-ride and disregard the very letter of the law.

In some of our sister States, the question now under investigation is-no longer an open one, either as to the constitutionality of the law above referred to, which we shall not question, or to the practical operation of the legal tender act.

In the Supreme Court of Michigan, in the case of Buchegger v. Schultz, very lately decided and not yet reported, the whole subject -involved in the present inquiry underwent a very careful and critical examination; and, as the view we entertain is therein upheld with great clearness and logical accuracy, we refer to*it, as an exposition of the law, applicable to the present case.

The action alluded to was on a note given in 1862, for the sum of eight hundred dollars, of which, five hundred were to be paid in gold. The contract was proved, as also the fact that, at the time of the trial, gold was worth a premium of fifty per cent, in treasury legal tender notes ; and judgment was rendered by the Circuit Judge against the defendant, computed upon that basis.

The ruling of the Supreme Court, on the ajDpeal, was to the following effect:

1. That a contract for a certain number of “dollars," though stipulated to be paid in gold, is not a contract for gold as bullion or merchandize, but as money, and, therefore, j>ayable in any lawful money.

2. The acts of Congress, called the legal tender acts, do not merely confer a privilege on debtors for their benefit, but are measures of public policy, and the right under them to pay in any lawful money, cannot be waived, even by express consent. ' -

3. The measure of damages for non-performance to pay money, is the number of legal dollars, without regard to the stipulations, as to the kind of money by which the contract is to be discharged.

The correctness of the conclusion reached by the Court, that a contract for a delivery of so much gold in bullion, or by the ounce, or other quantity, must not be confounded with, one for the payment of so many dollars in coin from that metal, is so palpably evident as to need no argument to support it, and it is, therefore, needless for us to dwell longer on this point.

In support of the doctrine taught in the second point, the Court remarks :

Before the passage of the legal tender act, all contracts for the payment of dollars generally were payable in gold and silver; because, by the statutes then in force, coin from those metals could alone be lawfully tendered in payment; and, as parties are supposed to make their contracts in reference to the existing law, all prior contracts were to be construed precisely as if the words “payable in gold and silver coin” were incorporated therein.

And, if all such contracts may now be discharged by legal tender notes to the specific amount, we are, unable to see why a contract which includes this stipulation in its terms is not subject to be discharged in the same way. The rules which govern this case seem, to us, few and simple. If legal tender laws were designed chiefly to confer upon debtors a privilege, there would be force in an argument that the class to be benefitted might waive the privilege of stipulation in their contracts. But these laws are also based in a great measure upon reasons of State policy, which, sometimes, to a considerable degree, control and disregard individual interest.

The act in question was based exclusively upon reasons of a public character, which, in the opinion of the law-making power, imperatively demanded that treasury notes should be made equal in legal value to coin; and parties have no more right to stipulate that their contracts shall not be governed by it, than those of a particular locality have to agree among themselves, that this or any other law, passed by the competent authority, shall not be in force in such locality.

What shall constitute a dollar in money is fixed by the national law, which, as respects the subject, is supreme.

The legal tender act not only made treasury notes money, but it made them a lawful tender for all private as well as most public dues. In doing so, it made these notes the legal equivalent for gold and silver coin to the same nominal amount. It is true that, at the stock boards, a difference is recognized, and that the holder of the coin may command a premium for it in notes; but this fact has no bearing upon the question when presented to the Courts, which must be governed by the law, if it has been enacted by competent authority. Moreover, gold and silver coin are seldom of equal value at the stock boards; and, it is impossible for any law fixing a like legal value upon sever'al species of money, to prevent fluctuations in their relative market values, caused by circumstances which no legislation can control. But these circumstances do not authorize the courts to recognize a distinction between gold and silver, or gold and treasury notes, when the paramount authority has declared that their legal value shall be the same.

The Courts have no power to render a judgment payable in one species of money only, and, therefore, a judgment rendered upon a note, payable in gold, cannot be made payable in gold only, but must be for the payment of so many dollars, without specifying the kind.

But, if it be for the payment of dollars generally, then it can be rendered only for the number of dollars mentioned in the note, and interest' thereon ; since one dollar is legally just as valuable as any other dollar.

The legal damages for a failure to pay a stipulated amount in gold, cannot possibly exceed that amount in any lawful currency; and, when a Court renders judgment for any greater damages, upon such a contract, it sets aside and disregards the legal tender act altogether.

It is unnecessary to determine how such a stipulation, if made in a contract having a date anterior to that of the legal tender act, would be affected by that act; and whether it were competent for Congress to pass a law which would violate the obligation of a contract. It suffices, in this case, that the contract was passed whilst the statute alluded to was in force; and, to give it the effect claimed for it by the plaintiff, would virtually be to make the law yield to the contract, and not the contract to the law.

For reasons, different from those assigned by the Judge of the lower Court, we affirm the judgment rendered by him.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, and that the .plaintiff and appellant pay the costs of appeal.

Howniiii, J., recused.


author: Labauve, J.

text:
    Moritz Stiewell v. Flora Burdell.
    Subrogation takes place of right:—
    1. Forth© benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his, by reason of his privileges or mortgages;' - *

      Z For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors to whom the hereditament was mortgaged;
    3. For the benefit of him who, beingbound with others, or for others, for the payment of the debt, had an interest in discharging it;

      i. For the benefit of the beneficiary heir, who has paid with ius own funds the debts of the succession,
    5. The surety is discharged when, by the act of the creditor, the subrogation to his rights, mortgages ‘ and privileges, can no longer be operated in favor of the surety.

      Leaumont, J. Shackleford and Field, for plaintiff and appellant. S. H. Torrey, for defendant.
    APPEAL from tbe Sixth District Court 6f New Orleans,
   Labauve, J.

The plaintiff claims of the defendant the sum of $2,217, composed óf a note, dated April 29, 1861, payable on demand to plaintiff, for $717, money paid by plaintiff-as .security for defendent, to DolJ-& Kathman, on 30th September, 1861, for house rent, and for which plain‘tiff claims a subrogation to Doll & Kathman’s privilege, say §750, and money paid by plaintiff for defendant, on the 23d July, 1860, to Margaret Thompson, being for the purchase money for certain furniture sold by said Margaret Thompson to defendant, and for which he claims the •privilege of the vendox-, §750. The plaintiff sued out a writ of provisional seizure upon the claim for rent, and a writ of sequestration upon the claim for furniture paid Margaret Thompson.

• The defendant first answered by a general denial. She admitted she executed her promissory note in favor of plaintiff for §1,000. That she was also indebted to plaintiff in the sum of §750, amount paid by him to' •Margaret Thompson. In the further sum of §750, paid by said plaintiff to her lessors, Doll & Kathman. That she was also indebted to said plaintiff in the sum of §717, as evidenced by her promissory note in favor of said plaintiff, dated 27th April, 1861, and due áth June, 1861. She further answers that she has made many payments, which she details with dates, amounting in all to §2,813. She further avers that she has paid the said Stiewell, on his own claim, the monthly interest of 10 per cent., and that, under the suit of such interest, usurious and exorbitant, she has paid him many amounts, which she details with dates, in all §1,160, and for which she claims credit; and she claims a balance in her favor of 41,056, by way of reconvention. She also claims the further sum of §1,000 as damages for the wrongful sueing of the provisional seizure in this case. She prayed accordingly for judgment for §2,056.

The ease was submitted to a jury who found a verdict in the following words: “We, the jury, find a verdict for ihe defendant;” and the court gave a judgment accordingly.

The defendant took a rule upon plaintiff to show cause why the writs of provisional seizure and sequestration, should not be set aside on the following grounds:

.1. The petition and affidavit arc not sufficient in law to axxthorize said writs.

2. The affidavit is not true; the surety on the bond is not such good security as the law requires.

The plaintiff was not the lessor of the premises and has not been subrogated to the rights of the lessors; because, it is not true that defendant attempted or intended, before or since the issuing of said writs, to remove the furniture from the premises.

After a hearing, the Judge made the rule absolute, so far as to set aside the writ of provisional seizure, arid dismissed it as to the writ of sequestration. The ground for sustaining the rule in part, is that the evidence does not sustain the alleged conventional subrogation, nor establish that interest which accords a legal subrogation, and that it does not show that plaintiff was bound as a legal surety of defendant, but only that he paid the rent for certain months during defendant’s absence. The plaintiff appealed from that decision against him.

The testimony upon that point is as follows :

James Kathman, a witness, says : “I was the agent of Doll & Kathman for the collection of rent of the property .rented-by them to Flora Bur-dell. I recognize my signature on the receipts marked T, U, Y, W and X. The money was paid by Mr. Stiewell for rent of houses on Customhouse street. I do not know on what' terms he paid the money; the parties were on good terms at the time. I received the money from, Mr. Stiewell; I considered the money Mr..Stiejvell’s money. Mr. Stiewell paid the money because he had promissed to pay it during her absence; in fact, it was an arrangement between us all three. I was called there at the house, and F. Burdeli told me that she was going to New York, and that Mr. Stiewell would pay her refit, to, which Mr. Stiewell consented. I then called on Mr. Stiewell, who paid the rent monthly. The intention of Flora Burdeli was to go to the North and Mr. Stiewell was to pay her rent during her absence. I cannot'‘tell what object he had in paying the rent, but to get his money back on Mrs. Burdell’s return. The document marked Y is signed by me.” .

The five receipts given to plaintiff for the refit he paid in the absence of defendant were adduced in evidence, each $150 for monthly rent due by said defendant. Our attention hais' not-been called to any other ground contained in the rule. This testimony clearly shows that plaintiff was considered as a surety of the strongest kind; it cannot be pretended that he wanted to give nemo premmiíur'-denare; besides, defendant admits the debt in her answer; he was bound to pay, and, in doing so, he was subrogated by law to the right and privilege of the lessors. C. C. Art. "2157, No. 3. Besides, it is a well-settled rule that a surety who pays the debt of the principal debtor, takes- the lien and place of the creditor, so much so that when the creditor, by his., own act, cannot subrogate the surety to the right and privilege inherent to- the debt, the surety is discharged. C. C. Art. 3030. The District Judge, erred.

During the trial below, defendant offered-in. evidence, a note signed by her to her own order, and endorsed by her, dated 20th April, 1860, for $1,000, payable in. six months, to the introduction of which plaintiff objected, on the grounds that said note--.was ..not pertinent and did not shed any light upon any issue in the case; and the Court admitted said note, and a bill of exceptions taken to the decision of the Court. The defendant had given a statement of their 'account, and she had charged herself with the amount of said note to the credit of plaintiff, it was then proper for her to show that she had taken it up. We believe, under this circumstance, it was properly- received" .The- other bill of exceptions to the testimony of John Honhort, we cannot sustain : the objections were more to the effect of said testimony than t.o its admissibility.

We have carefully examined the testimony and we are not satisfied that .defendant has proved the payments and other matters by her set up in her defence. We think that justice ¿requires that the case should be_, remanded to be tried according to law. .‘

It is therefore ordered, adjudged and decreed, that, that part of the judgment of the lower Court, so far as it sets aside the writ of provissional seizure, be amended and reversed, and the provisional seizure reinstated. It is further decreed that the verdict of' the jury be set aside and the judgment of the Court upon it annulled and avoided, the defendant and appellee to pay the cost of appeal.

Hvman, C. J., and Howell, J., recused.


author: Lasauve, J.

text:
    Thomas Mulligan v. Daniel Mulligan.
    Every mechanic, workman, or other person, doing or performing any work towards the erection, construction or finishing of any building in this State, erected under a contract between the owner- and builder, or other person, whether such work shall bo performed as journeyman, laborer, cart-man, sub-contractor or otherwise, shall have a privilege upon the building.
    APPEAL from the Third District Court of New Orleans,

      Duvigneaud, J. Clarke <& Bayne, for defendant and appellant.

      M. GrivotandA. Pitot, for plaintiff.

    — The law says : “ Every mechanic, workman or other person performing any work towards the erection, construction or furnishing,” etc. If the lawgiver had to name all capacities of persons who may be employed by a contractor, the omission of one would have had the effect of depriving that one of a privilege which it was the intention of the Legislature to confer upon him ; and it is evident that the phraseology intended to secure such privilege to all those employed by the contractor in the erection of the building. If it were to apply only and exclusively to mechanics and workmen, it was useless ta insert the words “ or other person. ” Certainly, those words do not mean mechanics or workmen, who are already specially named, but must necessarily apply to persons not mechanics nor workmen, viz : “any other performing any work towards the erection of the building. ” Unless it be maintained that a superintendent who orders the work in every part of the building, examines the materials furnished, corrects the errors made, and in fact supervises the whole work, is not performing some work towards the erection and construction of a building, I cannot understand the objection made to the privilege awarded by the judgment. Under the point made by the defendant it would be necessary to be a mechanic or a workman of the lowest grade, and then the words “other person,” in the law, become void of sense and of no effect.
    The statute uses other words which would also have to be cancelled and annulled. It says : “Whether such work shall be performed as journeyman, laborer, cartman, sub-contractor or otherwise.” We see here that the sub-contractor is included; certainly he is not bound to work as a bricklayer or a carpenter ; he may be sub-contractor, and have the work ■done by mechanics and workmen ; therefore, the law is not solely in favor of mechanics and workmen. But again; here; instead of a nomenclature of all the persons who may be employed, the law says : whether the work be done as sub-contractor or otherwise. . Certainly, the superintendent is performing work towards the erection'of the building, otherwise than "those named, it is true, but much more in accordance with the meaning of the law than the sub-contractor, who may .never put his hand to the ■work contracted for. Such an interpretation would be going too far, principally when there is no straining of the interpretation of the words, “ or other person” and “ otherwise,” in their application to the superintendent of a building, employed by the contractor, and upon whom he places all the responsibility of the work 'done for him.
    In the suit of Hogg v. Taliaferro, 10-A. 562,'.the case was that of a foreman. - The foreman is not named in the statute. The foreman, on a large building, from what we all know of his'various dirties, may not effectually work with his hands on the building. ’ He is' not, however, deprived of -the privilege. "Why would a man, having a more extensive supervision -and a much more heavier responsibility; be deprived of the same right when he renders services of the same character, under a law which, after naming mechanics and workmen, says.: “any other person,” whether such work be done by so and so, “ or otherwise.”
    The law was made to protect all persons working under the contractor and looking to him for the payment of'their'services. Any exclusion of any such persons, not specially named, would be unjust, and unwarranted by the principles relative to the interpretation of. laws.
    “ A construction which would render important expressions of the law useless and of no effect cannot be adopted ; effect must be given, if pos•siblé, to every expression.” Hennen’s Digest, p. 829, No. 5, cases cited.
    “■Even when a law is clear and unambiguous, the letter may be disregarded with the honest intention of seeking its spirit. ” Hennen’s Digest, p. 830, No. 19, cases cited. ■
    ‘bln the interpretation of a statute, the 'intention of the law is to be deduced from a view of the whole, and of every part of the statute, taken (together.” Hennen’s Digest, p. 832, N.0..31.-,.
    “.A statute must be construed with .reference to its object, and if this be inconsistent with the precise words of the statute, the latter must yield ¡to the controlling influence of the will-of -the Legislature resulting from ■the whole.” Hennen’s Digest; p. 832, No. áÓ.

   Lasauve, J.

The plaintiff claims of;the defendant the sum of $2,010, -with interest; for this : that, in November or December, 1857, Ellen •Sheridan, know in religion by the name of Sister Theresa, Superioress of the Society of St. Vincent de Paul, and others, undertook to erect a hospital in this city, under the name of Hotel Dieu, and made arrangements with said Daniel Mulligan for the building, of said hospital; it being understood at the time that petitioner should have the supervision of, and give his professional attention to the erection of said building, either in the capacity of partner or as sole-superintendent; that petitioner gave his attention as architect and builder to the erection and construction of said building during one year, three months and fifteen days, at the rate of five dollars per day, exclusive of Sundays.

The defendant answered by a general denial. The District Court, after hearing the testimony, gave judgment in favor of plaintiff for $1,905, without interest, with mechanic’s privilege on the money seized in the hands of Sister Theresa.

The defendant appealed.

The testimony shows that plaintiff was generally present at the work and erection of the said building, called Hotel Dieu, giving instructions to workmen and supervising the construction. It appears, then, that the plaintiff acted as superintendent; but it is not clearly demonstrated when he commenced and ended his labor, so as to allow him five dollars per day for 381 days, it being proven, by some witnesses, that five dollars per day is generally the compensation granted to superintendents of buildings. The testimony is not satisfactory in every respect, and we do not feel authorized to allow plaintiff a compensation by the day. We will adopt the testimony of John Roy and George Purves. They both state that five per cent, on the cost of the building is an ordinary charge as a compensation for a superintenden 1 < the erection of buildings. According to the contract, the cost of the building was $33,975, making a compensation of $1,698 75.

The defendant has contended that the plaintiff has no privilege or mechanic’s lien as superintendent. We are not of that opinion. The act of 1855, f 1, enacts that “ every mechanic, workman, or other person, doing or performing any work towards the erection, construction or finishing-of any building in this State, erected under a contract between the owner and builder, or other person, whether such work shall be performed as journeyman, laborer, cartman, sub-contractor or otherwise.” * * * * This law is very clear in spirit and letter, and leaves no doubt as to the intention of the lawmaker.

It is therefore ordered and adjudged that the judgment of the District Court be reversed and annulled; it is further ordered and adjudged that-the defendant and appellant pay to the plaintiff and appellee the sum of sixteen hundred and ninety-eight dollars and seventy-five cents, with legal1 interest from the 2d September, 1859, till paid, with mechanic’s privilege or lien on the money seized in the hands of Sister Theresa, the defendant to pay the costs in the District Court, and those of appeal to be by the: plaintiff.


author: Laeatjve, J.

text:
    John W. Blackman v. John Hoey.
    In every oontract a tender of the article is necessary to put the party in default; and it is at the risk of the vendor until it is so tendered.
    It is equally necessary that the plaintiff should put tho defendant in default before bringing his action.
    APPEAL from the District Oonrt of thé Parish of Jefferson,

      Oazdbai, J. 8. Preston and 8. Myers, for defendant and appellant.

      Buchanan <& Gilmore, for plaintiff.

    — Defendant’s answer acknowledges the contract, but pleads that it was not he, but plaintiff, who had violated his obligations; that, at the time stipulated, defendant was ready and willing to deliver the bricks as stipulated but that plaintiff refused to receive the same; demanded to be paid' in money for the tuition of defendant’s sons, and dismissed the boys from the college, because defendant would not consent to pay in money as demanded; and that the bricks thus refused were afterwards seized to the use of the Government, and lost to defendant. The answer concludes by a prayer in reconvention for one thousand dollars damages againstplaintiff.
    The Court thus perceives that both parties rely upon the contract, and claim damages for its violation, the plaintiff alleging a passive violation by defendant, and defendant an active- violation by plaintiff. In reviewing the evidence, we first call the attention of the Court to the proof .of putting in default of the defendant by plaintiff. This proof is found in the letter written by plaintiff to defendant, dated 9th February, 1864, and the testimony of John Smith of the delivery of said letter to defendant.
    The present suit was instituted on the 5th of March, 1864, about a month after the putting in default. ’By’tlie terms of the contract, the whole of the bricks were deliverable by the 19th of January, 1863, consequently, plaintiff had waited a whole year upon the defendant before taking measures to enforce his rights. . ,'
    . It should also be remarked that the answer states that defendant was ready to deliver the bricks at the, time stipulated in the contract, etc. Now the contract stipulated for their delivery, one-half on the 19th October, 1862, and one-half on the 19th of January, 1863. Both these dates, and particularly the latter, were after the ’Government seizure, of which Kage speaks. Yet, defendant alleges that he was ready to deliver at those dates, and that plaintiff refused to receive.
    The claim of a thousand dollars damages in reconvention is simply ridiculous. If defendant had proved a tender of the bricks, and, upon a refulsal to receive them, a deposit pf.tb.em, made with legal formalities, the bricks would have been at plaintiff’s risk, and defendant would have been discharged of his obligation. O. P. Arts. 408, 411, 412, 413, 414. In such a case, the bricks would have represented the amount of the obligation, and no more. But, in defendant’s theory, those bricks, which have never been tendered, and never deposited, having been lost to him by force majeure, represent, not only the amount of his obligation, lint one thousand dollars more, which he asks to be allowed to recover from plaintiff, and thus to be a gainer to that extent by this pretended confiscation of his property.
   Laeatjve, J.

The plaintiff claims of the defendant the sum of $565, for tuition of defendant’s sons.

On the 19th July, 1862, the parties entered into an agreement, by which, the defendant obligated himself to deliver, on lots of plaintiff, in Bouligny, City of Jefferson, 56,500 bricks, of good quality; one-half within three months, and the other half within six months, from the date <sf the contract, and, in consideration thereof, the plaintiff obligated himself to educate the three sons of the defendant, at Dolbear’s Commercial College, in the commercial course, and two of them in the full course of English.

The plaintiff avers that, pursuant to said contract, the three sons of defendant entered said college, as follows : Hennen, on the 21st July, 1862; John, on the 22d July, 1862; William, on the 13th October, 1862, and continued to attend until the following dates, when they ceased to attend said college: Hennen, on the 26th May, 1863; John, on the 26th September, 1862; William, on the 27th May, 1863.

The answer contains a general denial; admits the contract, but states that defendant was ready to deliver the bricks according to contract, and that plaintiff refused to receive them, and demanded money; and that the bricks were afterwards seized by the Government; and that defendant, having refused to pay money, the plaintiff dismissed defendant’s sons.

The District Court gave judgment against defendant, in favor of plaintiff, for $500, with interest from judicial demand.

The defendant appealed.

The defendant failed to show that he had made a tender of the bricks to the plaintiff; consequently, the bricks were at the risk of the defenfendant. The plaintiff, before bringing this suit, put the defendant in default. The Court below was of opinion that plaintiff had made out his case; and, after having carefully examined the testimony, we are of opinion that justice has been done.

Judgment affirmed, with costs.


author: Hyman, C. J.

text:
    Succession of Louise Hardoin, Widow of Girodeau.
    She law declares that the curator of an interdicted person cannot borrow money for such person, without the authority of the Judge, granted on the advice of a family meeting; and it further declare# fcfeafc whatever is done, in contravention of its prohibition, is void.
    APPEAL from the Second District Court of New.Orleans,

      Whitaker, J. Castera, and Durant & Hornor, for Boisdoré, opponent.

      Duplantier, and Fellows <fi Mills, for appellant.

    — The question 'in this case arose on the trial of the opposition of Boisdoré to the application of 3?heo. Drouet, for the curatorship of this estate.

      As stated by the Court, in its reasons for judgment, the only question was, whether Boisdoré was a creditor or not...
    The deceased had been for many years an interdict, by reason of insanity, and her estate, of some $17,000, was administered by one Aicard. The property was all improved, and bringing in quite a revenue. The debt alleged to exist in favor of Boisdoré was for money claimed to have been borrowed of him by Aicard, for the benefit of the interdict. The curator, Aicard, had never rendered an account of his curatorship, and there is no proof that there was ever any necessity for his borrowing money of Boisdoré, or any one, for the benefit of the interdict. He had no authority by family meeting, or order of Court, to borrow, and no necessity was shown to exist.
    If, then, Boisdoré loaned money to Aicard, it was for his own use ; and although he might sign his name to a note, with curator attached, it proved no liability of the estate of Hardoin to the payee. Boisdoré loaned the money to Aicard, and to him alone, and although that identical money might have been used to pay taxes, or make improvements on the property of Hardoin, it may have, and probably only did, make up a deficiency in the account of Aicard with the estate of the interdict, and coiild not be a debt of this succession.
   Hyman, C. J.

Jean Batiste Francois Boisdoré opposed the application of Theodule Drouet to be appointed curator of the vacant succession of Louise Hardoin, deceased, on the ground that he, Boisdoré, was a creditor of the deceased, and, as such, had a better right than Drouet to. be appointed.

He prayed that Drouet’s application be rejected, and that he beap-. pointed curator.

The Court rendered judgment sustaining Boisdoré’s opposition ; from this judgment Drouet appealed.

The deceased, while living, was interdicted, and a curator was appointed for her.

This curator borrowed money from Boisdoré to enable him to pay a debt of his ward.

The money was applied by the curator to the payment of the debt;

It is not pretended that the money was .borrowed by authority of the Judge, or on the advice of a family meeting. -

The law declares that a curator of an interdicted person can not borrow money for such person without the authority of the Judge, granted on the advice of a family meeting; and it further declares that whatever is done, in contravention of its prohibition, is void. See Civil Code, Arts. 402, 318, 12.

The interdicted person was not benefited by the loan. The extinguishment of the debt by the curator, with the money borrowed, gave him, the curator, not the opponent, a right to claim of his ward the amount, as an advance made to her.

The opponent can not, therefore, invoke the equitable principle of the law, that no one shah enrich himself at the expense of another.

The manner in which the money was borrowed being prohibited, opponent did not become, by the loan, a creditor of the interdicted person.

He has shown no better right in law than Drouet to be appointed curator of the vacant estate.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the appointment of Jean Batiste Francois Boisdoré, curator of the vacant succession of Louise Hardoin, deceased, be annulled.

It is further ordered, adjudged and decreed, that Theodule Drouet be appointed curator of said vacant estate, on his complying with therequirements of the law.


author: Jones, J.

text:
    Robert W. Rayne v. David Taylor.
    In the assessment of damages, in cases of offences, quasi-offences and quasi-contracts, much discretion must bo left to the Court or jury.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Singleton <& Clack, for plaintiff. Randall Hunt, A. RT. Ogden, and Durant & Hornor, for defendant and appellant.
   Jones, J.

This is a libel suit. The defence was a justification of the truth of the facts, alleged in the petition to be libellous. Upon the trial, before a jury, the plaintiff obtained a verdict against the defendant for $11,820 01; which verdict, upon appeal, was set aside by this Court, upon the ground that the lower Court refused to instruct the jury : “ that, if the jury found, from the evidence, that the facts stated by the defendant in his answer were substantially true, there can be no verdict of damages against him.” Upon a second trial before a jury, after the cause was remanded, the defendant had the full benefit of this instruction; but, nevertheless, the jury again rendered a verdict against him for $7,500, from which this appeal was taken. C. C. Art. 1928 declares that, “in the assessment of damages, * * * in cases of offences, quasi-offences and quasi-contracts, much discretion must he left to the Court or jury.”

In the exercise of a sound legal discretion, we would be authorized to reduce the damages of a jury when excessive ; but the facts of this case do not warrant our interference in this respect.

Judgment is therefore affirmed, with costs.


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    V. Lacroix v. Charles Derbigny.
    Every marriage contracted in this State, superinduces of right, partnership or community of acquets or gains, if there be no stipulation to the contrary.
    All property hereafter acquired in this State by non-resident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which now regulates the community of acquets and gains between citizens of this State.
    Husband and wife are prohibited from contracting with each other except for certain specified purposes.
    A pledgee of a promissory note to secure a certain sum on it, cannot deprive the maker of all equitable defence against the payee, who is still a part owner thereof.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant & Hornor, for plaintiff." Óyprien Dufour, for defendant and appellant.
   Hyman, C. J.

Defendant is appellant from a judgment condemning him to pay plaintiff the sum of $1,648, with eight per cent, interest thereon from 2d March, 1863, cost of protest and cost of suit.

The judgment is based on a promissory note made by defendant in March,-1863, payable six months after date to order of Auguste Damerest.

In argument it was admitted by defendant’s counsel, that plaintiff was entitled to judgment for $800 with interest and cost; we are therefore exempted from the necessity of enquiring whether plaintiff has an interest in the note to that extent, whether-the debt is divisible, or whether others should be made parties to this suit.

The note was endorsed in blank, and before its maturity was pledged by the wife of Damerest to plaintiff'for the purpose of securing the payment of her note, owned by plaintiff, for $800. In the act of pledge she styles herself Ida Richer, but the evidence discloses that she and Dame-rest lived together as husband and wife and recognized each other as such. There is no evidence to cause a doubt of this relationship between them. Indeed the attorneys of plaintiff,-.in argument, admitted that Dame-rest and Ida. Richer were husband and wife before the note sued on was given.

Defendant in his answer averred want of consideration, and that Dame-rest was the owner of the note. The note, if valid, was, at the time it was given, community property of Damerest and wife. See Civil Code, Articles 2369, 2371.

The evidence introduced, if it should not be contradicted, would prove that no consideration was given for the note.

Husband and wife are prohibited from contracting with each other, except for certain specified purposes, and as it is not shown that the note was transferred by Damerest to his wife for one of these purposes, the presumption is that it belonged to the community of which he has the control. See Civil Code, 1784, 2421, 2373.

There is no evidence that Demarést parted with the remainder of his interest in the note to plaintiff. On the contrary, it is shown by an agree-meat between plaintiff and Damerest’s wife, entered into subsequently to the pledging of the note, that it should be placed in the hands of the attorneys who brought this suit, for collection, and out of the collection plaintiff was to be paid the amount of the $800 note owing by her to him.

No provision in this agreement is made for the excess of the collection over Mrs. Demarest’s indebtedness.

The plaintiff’s claim, that he is the sole owner of the note, is not established by the evidence; and he cannot, by being pledgee to secure * sum for less than half of the amount for which the note was given, deprive the maker of all equitable defence against the payee, who is still • part owner thereof. See 3 Rob. Rep. 146.

. It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed; and it is further ordered, adjudged and decreed, that plaintiff recover of the defendant the sum of eight hundred dollars, with interest thereon at the rate of eight per cent, per annum, from the second day of March, 1863, till paid, three dollars and seventy-five cents cost of protest, and the cost of suit in the District Court; the cost of appeal to be borne by plaintiff; reserving to the defendant the right of any equitable defence that he may have against the payee of the note.

Howell, J., recused.


author: Howell, J.

text:
    F. E. Robertson v. Green & Brummell.
    Interest can only be allowed from the date of tbe judgment liquidating the damages in an action of trespass, not from judicial demand.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Simonds& Fenner, for plaintiff. Paxton, for defendants and appellants.
   Howell, J.

This is an action of trespass, to recover the value of timber and wood, cut and carried from plaintiff’s property, by and for the use of defendants.

The defence is a general denial, and the prescription of one year.

The written agreement between plaintiff and Green, one of the defendants, takes the case out of the prescription pleaded; and we concur further with the District Judge, that the testimony of the witnesses, independently of the informal award in the record, establishes the quantity and value of the timber and wood in question.

Plaintiff has joined in the appeal, and asks that the judgment be amended so as to allow interest from judicial demand. It is now settled that interest on such claims can be allowed only from the date of the judgment liquidating the damages. See 6 A. 569; 10 A. 33.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be amended so as to allow five per cent, interest thereon, from 19th January, 1861, the date on which it was rendered; and that, as thus .amended, it be affirmed, with costs in both Courts.


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    G. Holtzman v. L. Millaudon.
    A legal agreement is a concurrence of two minds upon the object, and consideration of a contract The will of both parties must unite on the same point.
    A claimant must establish his claim with legal certainty. It is not enough that he make it probable.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. Fellows & Mills, for plaintiff. JDurell and Dufour, for defendant and appellant.
   Howell, J.

Plaintiff claims from the defendant the sum of $5,200, as balance due, under a special agreement, in the sum of $5,550, for services-as engineer, in repairing and superintending the repairs of the machinery of two plantations, “Estelle” and “Front,” in the parish of Jefferson, belonging to defendant, being $3,300 for the “Front” (of which, $350 is-admitted to be paid), and $2,250 for the “Estelle” plantation. The' agreement is alleged to have been made about the 1st of April, 1861, and the contract completed by the 12th November, same year.

Defendant pleaded the general issue, and judgment was rendered in-favor of plaintiff for the sum of $4,650, the exact amount of the contract, in the opinion of the Judge a quo, not having been shown, but that it. exceeded the sum of $5,000, which amount he adopted, deducting the $350 paid on account, from said sum of $4,650.

The case rests solely upon facts, and, after a careful review of the evidence, we are unable to concur in the conclusion of our learned brother of the District Court.

It will be observed that the plaintiff sets out, with great particularity, the work to be done, and the price to be paid on each plantation. Only one witness was present, when the-alleged agreement was made; and his testimony is too general and indefinite in its character, and insufficient in law, to establish the contract declared upon. He testifies only to general remarks of the parties about doing a job, of which they had previously been talking: “the repairing of some machinery on the two plantations.” He does not describe the work, or fix the price. True, he says, the price was to be over $5,000; how much over, he does not say. We are unable, from his testimony, to ascertain what kind and amount of work plaintiff was to perform, or what remuneration he was to receive. A legal agreement, a concurrence of two minds upon the object and consideration of the contract, is not shown; and, without this, there is no contract which can be enforced as demanded. “The will of both parties must unite on the same point.”

The testimony upon the demands made of defendant does not remove the uncertainty nor show corroborating circumstances to complete the sufficiency of the evidence. It does not enable us to determine whether the work was done under a quantum meruit, or a special contract. A plaintiff must establish his íolaim with legal certainty. It is not enough that he make it probable. The application of this principle is appropriate here, as the record shows the significant fact that the plaintiff was, at the time the alleged contract was made, and had been, for months, in the employment of defendant, as an engineer, at the rate of $100 and $135 per month, while the contract sued on makes his computation for his individual services only considerably over $700 per month; $5,550 for the labor of about seven months. Some of the witnesses say he completed the repairs on the machinery about the end of October, and he begun them in the early part of April, of the same year.

We are clearly of the opinion that plaintiff has failed to make out his case.

It is therefore ordered that the judgment of the lower Court be avoided and reversed; and that there be judgment in favor of the defendant, as in case of nonsuit, with costs in both Courts.


author: Labauve, J. . Labattve, J.

text:
    Augustus Armstrong v. W. G. Bakewell.
    The place in which a succession is opened, is, and in future shall he held to he, as follows, notwithstanding any former law to the contrary: In the parish where the deceased resided, if he hada domicil or fixed place of residence in the State; in the parish where he left landed property, if he had neither domicil nor place of residence in the State; or in the parish in which it appears from tho inventory that his principal property was situated, if he had property in several parishes; in the parish where he died, if he had no certain or any fixed property. O. P. 929.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Ad. D. Dapré, Jr., and J. Q. Bradford, for plaintiff. Hynes & Gordon, for defendant and appellant.
   Labauve, J.

The plaintiff alleges that he is duly qualified as curator to the vacant succession of Henry Ackerman, who was domiciled in the Parish of St. Bernard, and that he was appointed by the District Court of the Second Judicial District of Louisiana, holding sessions in said Parish of St. Bernard.

That subsequently to petitioner’s application W. G. Bakewell applied to the said Second District Court of New Orleans to be appointed, and was, after publication, appointed curator to the same succession. He avers that the judgment appointing said W. G. Bakewell curator, is null, for this: That the said Ackerman died domiciled in said Parish of St. Bernard, and the said District Court of New Orleans had no jurisdiction over the said estate. He further alleges that the said Bakewell was justly indebted to the said deceased in the sum of $441 35, balance due upon a note.

The plaintiff prayed that the judgment appointing said Bakewell be annulled, and that there be also a judgment decreeing said Bakewell to pay plaintiff, as curator, the said sum of $441 35, with interest.

The defendant answered in substance by a general denial, and pleaded specially that the deceased died in New Orleans. The Court below, after hearing the testimony, gave judgment as prayed for. The defendant took this appeal.

This case depends entirely on matters of facts as to where was the succession of the deceased opened. The Judge who tried the case below, was satisfied that the said succession was opened in the Parish of St. Bernard, and not in New Orleans, under his own jurisdiction, and accordingly annulled his judgment appointing said Bakewell, and also ordering said Bakewell to pay plaintiff as prayed for.

We see no reason to reverse the judgment appealed from, and it must be affirmed. O. P. Art. 929.

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

Same Case — On a Reheabin».

. Labattve, J.

In this case, a rehearing has been granted, on the ground that the judgment of this Court had been prematurely rendered, and before the delay of one week, granted to the appellant to file his brief, had expired.

We have re-examined the case, and we are satisfied that the judgment first pronounced was correct.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs, as it was by the judgment heretofore rendered in this case.