author: Todd, J. Bermudez, C. J.

text:
    No. 8917.
    Charles A. Alba vs. D. Moriarty & Co.
    ■Where a person is employed at $1800 per year, and after lie lias notified his employers that he ■would make no engagement for less than a year, and for one year renders the services stipulated without complaint, and at the end of the year is not discharged, but continues to attend to the business as before, with the knowledge and apparent sanction of the employer, and at the end of a few months in the second year is discharged without cause, he will be entitled to recover the entire salary for the second year. The contract was a continuing contract by the year, subject to be terminated at the end of each year by the wish of one or both parties thereto.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Nlcholls & Cwroll for Plaintiff and Appellee.

      Jonas & Nixon and JE. D. White for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the defendant, David Moriarty, doing business in New Orleans as a wholesale grocer under the name of D. Moriarty & Co., for a year’s salary as traveling salesman, alleging that he had been employed for one year but had been discharged by the defendant before its termination, without cause.

The defendant’s answer contains first the general issue, and then further avers, substantially, that the plaintiff had been employed on November 15, 1880, for one year, by Moriarty & Craft, to whose business he (defendant) succeeded. That after the expiration of the year he did not retain plaintiff longer in his employment, but declined doing so.

That he was willing to engage him for another year upon different terms, but that after the term of his service had expired the plaintiff avoided him and gave him no opportunity of speaking to him about it. That finally discovering that there had been delays on plaintiff’s part in making returns of his collections, on 24th of December, 1881, he informed plaintiff that he would not employ him “any further on any terms” — the last sentence being a literal quotation from the answer.

The facts appear to be these:

The plaintiff, previous to his employment by Moriarty & Craft, was conducting a retail store in the parish of Assumption; that some time in the fall of 1880, he had some conversation with these parties looking to an engagement with them; that in the course of it plaintiff informed them that he was comfortably and permanently situated where he was, and that he would work for no house except by the year. A few days after he received the following communication:

Office of MoriartW& Craft,
Wholesale Grocers and Importers, Nos. Ill and 113 Poydras St.,
New Orleans, October 23, 1880.
G. 1?. Alba, HJsq., Nwpoleorwille:'
Dear Sir — We have talked the matter over, and will engage you (at $1800) per year. So please come to New Orleans and make arrangements. Drum around and bring few orders when you come to town.
Truly yours, MORIARTY & CRAET.
Craft.

Please excuse brevity, as it is nearly 12 o’clock.- -C.

The plaintiff, in response to this letter, came to the city, accepted the proposition it contained and entered upon the duties of his employment on the 15th of November of the year mentioned. He continued in the active discharge of these duties throughout the year.

In October, .1881, Moriarty bought out Craft’s interest in the concern and mentioned this fact to the plaintiff, and spoke of continuing him in his employment.

After the expiration of the year, plaintiff remained in the establish, ment, making his usual trips to the country and reporting orders as before, and without any further agreement with the defendant, when on the 24th of December he was discharged. Before that date the defendant had mentioned to him that the time of his first engagement was out, but did not propose any new terms touching his employment and salary, expressed no dissatisfaction with him, at least to the plaintiff himself, and delivered Mm on one occasion samples to be taken with Mm on one of his country trips. There was no want of opportunity between the end of the first year’s engagement and the date of plaintiff’s discharge for defendant to have submitted a proposition to him as to any change of terms or any new arrangement he might- wish to make, and no evidence of any effort or design on the part of the plaintiff to avoid the defendant, as charged. The answer of the defendant, and especially the part literally quoted above, virtually admits that defendant regarded the plaintiff as still in his employ until the 24th of December.

It is also shown by Moriarty’s own testimony that at the time he dismissed the plaintiff he had not been informed about the alleged irregularities in his collections, charged in the answer against the^plaintiff, and therefore they could not have entered into the reasons for his discharge. Even if they had, the evidence shows that they were not of a character to have justified defendant’s action, and were really an afterthought and an evident pretext. The plaintiff, by the terms of the letter evidencing the contract, was employed, not for one year, but at $1800 per year. It was, therefore, a continuing contract from year to year, until terminated by mutual consent or by timely notice given by either party at or before the expiration of the year.

The case was tried by a jury, who returned a verdict for the plaintiff for the amount of his salary as stated in the agreement, subject to a credit admitted by the plaintiff.

After a critical examination of the entire evidence, we do not see how a different verdict could have been returned.

An amendment in the phraseology of the judgment is asked for by plaintiff, to the effect that by its terms it be given against Daniel Moriarty, instead of D. Moriarty & Co., as rendered in the district court. This amendment is a proper one.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended by substituting for the words against the defendants, D. Moriarty & Co.,” the following: “against the defendant, Daniel Moriarty, doing business under the name of D. Moriarty & Co.;” and as thus amended it be affirmed, with costs in both courts.

DissentiNg- Opinion.

Bermudez, C. J.

The plaintiff claims that he was employed by the year, as drummer, by Moriarty & Craft, from the 15th November, 1880, at a salary of $1800, payable monthly.

There are several good reasons why he should not recover.

I.

His alleged contract is not proved. The letter written to him in which the words per year are found was an offer, which was accompanied with a request to come to see the writers to make arrangements. He, himself, says that the terms were to be reduced to writing. The record fails to show that if any were ever entered into, they were thus drawn up. The contract was not consummated.

The argument, based on the fact that he was paid his services at that rate, proves employment, but not the term for which it was to last.

II.

Tacit reconduction, which is the only ground upon which the claim can be made to rest, is expressly provided for by special legislation concerning leases of real estate, but it'is nowhere announced by law as applicable to the letting of labor or the hire of services. Commentators, themselves, say that it should not be inferred, unless from the strongest circumstances, justified by usage and custom.

If it be invoked by analogy, then the rules and restrictions prescribed as to the one should be observed as to the other.

In the case of property, the law is that if the tenant continues a week after the expiration of the lease, without opposition by the lessor, the lease will be presumed to be continued, but by the month only.

Why, then, claim that tacit reconduction exists in a case of hire ol labor or industry, and say that if the parties, or either, do not put an end to it formally at the expiration of the term, the contract must be deemed renewed for another year.

The law is positive, that a man may hire out his services only for a certain limited time, or the performance of a specific undertaking — not indefinitely.

Had the law intended that tacit reconduction should exist in cases of hire of labor, as it does it shall in cases of real estate, it would have said so. Silence on that subject induces the inference that it did not enter in the economy of the law that it should.

III.

Be that as it may, the difficulty is aggravated by the very circum stances of the case.

Concede that the contract of hire was entered into as claimed, who were the parties thereto ? 1st. The plaintiff; 2d. Moriarty & Craft, as a firm, not as individuals.

That firm was dissolved before the termination of the year of employment, Moriarty continuing the business.

No doubt the dissolution of the firm could not impair plaintiff’s rights under his contract with it; but it clearly was notice to him that it was to end with the year. After the dissolution, the partners continued bound as though it had not taken place, but for no longer term than the year.

The plaintiff sues to hold responsible, not the firm, not the partners thereof, eo nomine, but a former partner in his individual name.

If the contract which he relies upon be a continued contract, it can only be such between the original parties thereto in the capacities in which they acted at the time.

His claim could not stand against the firm for the second year, as it dissolved before the first year was out. How can the contract be enforced against one who was not a party to it, in Ms individual name, unless it has been alleged and shown that it was made the basis of one by the late partner, individually? There is no proof of such new contract for another year, to begin when the first would have expired, on the part of Moriarty. The plaintiff himself alleges that the dissolution occurred on October 1,1881, and that then the contract was renewed by Moriarty. If that be so, thc-n the second year would begin at that date and the defendant should be made to pay only the difference between the $1800 and the salary paid for October and November —added to the one hundred and forty-three dollars with which the plaintiff strangely credits his claim as so much received in advance. The judgment of the lower court, instead of being for $1657, should, at at best, be for $1337 only.

The pretension of plaintiff, under the circumstances of the case, is startling, and if sanctioned inflicts unwarranted loss and injury to an innocent party.

The case is simply that of a clerk employed for a year by a firm, subsequently dissolved before the end of his engagement, who sues individually a former member for a second year’s salary, without any contract on his part, merely because he was retained after the expiration of the first year by such party some fifteen oi’ twenty days.

Diligent search has been instituted here and elsewhere for a kindred precedent and none was found, no doubt because it never entered the mind of even the most rapacious subordinate that such a flimsy or bald pretension couLd be ventured to be built upon such nebulous foundation.

I, therefore, dissent from the opinion and decree.

Behearing refused.


source: Caselaw Access Project

author: MANNING, J.

license: Public Domain

text:
    No. 9157.
    W. T. M. Dickson vs. Samuel Hynes et als.
    In suits to uncover simulations tlie largest latitude is allowed in the reception of testimony.
    A judicial mortgage will operate upon land acquired by tlie judgment debtor after the recording of the judgment as well as that owned before, notwithstanding the titles do not appear in his name but in that of others who hold for him.
    Claims acquired by another after such recording of a judgment against the real owner are subordinated to that judgment, and cannot be satisfied until the judgment creditor has been paid in full.

      If such creditor has paid the cases upon the lands pending the litigation to prevent a sale of them, he is entitled to reimbursement of the sum thus paid along with his judgment, and in preference to any other claims.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches. r\ Pierson, J.

      Watkins & Scarborough for Plaintiff and Appellant.

      Jack <& Disrmihes and M. J. Cunningham for Defendants and Appellees.

      Merrick, Foster & Merrick on the same side.
   The opinion of the Court was delivered by

MANNING, J.

The plaintiff obtained judgment against Samuel Hynes in May 1880 for $1,776 with interest, and had it recorded in the same month. Execution having been issued thereon, there was a return of nulla bona. He then instituted this suit to subject to his judgment two tracts of land nominally owned by John T. Doxey, but which he charges are really the property of Hynes. He alleges that Doxey acquired one of these tracts from J. S. Stephens and the other from Meyer, Weis & Co., and that these vendors were merely persons interposed who held title for Hynes, and who conveyed to Doxey at Hynes’ request, the object being fraudulently to place the property out of the reach of Hynes’ creditors and thereby defeat the collection of the plaintiff’s judgment. All these persons were made defendants.

Hynes pleaded the general issue pure and simple. Doxey avers that he acquired the lands for himself, paid his own money for them, and is the real bona fide owner of them. Stephens alleges that he bought with his own money and sold for a fair price to Doxey. Meyer, Weis & Co. answer that an act of sale was passed to Doxey by their agent Caspari for what they considered a legitimate profit, and was a bona fide transaction on their part. The lower court found that the conveyances to Doxey were simulations, and decreed that Dickson’s judgment was exigible upon the lands, but that Doxey was entitled to receive in preference to Dickson $2,284.36 out of the proceeds of sale — that sum having been loaned by Doxey to Hynes or paid for him.

When the plaintiff obtained and recorded his judgment against Hynes, Doxey lived in Missouri. They were brothers in law. Doxey removed to Natchitoches parish in October 1881 and the conveyance from Stephens to him was made in January following. Stephens had bought the land in April 1881 by Hynes’ request. Indeed Stephens was not present at the sale and Hynes bid it in for him, and Hynes paid him or repaid him the price $690. Stephens says that Hynes was the only person he knew in the transaction, and that Hynes paid him a consideration for buying the property. There were only forty-seven acres of it. But it joined the larger tract that Doxey acquired from Meyer, Weis & Co. and both together made a plantation of five hundred a'cres which the plaintiff alleges to be worth nine thousand dollars.

Meyer, Weis & Co. through their agent'Caspari bought this larger tract at the foreclosure of a mortgage thus. One Virginia Smith formerly held the title under a purchase by her for part cash and a larger part credit, for which her notes were given secured by mortgage. These mortgage notes wore obtained by Hynes, the nominal ownership of them appearing in Meyer, Weis & Co. through Caspari their agent. The mortgage was foreclosed at Hynes’ instance. The lawyer who conducted the proceedings was employed and paid by Hynes, and Cas-pari as agent of M. W. & Co. bought in the place on May 1, .1880, and thereafter transferred it to Doxey. In June following M. W. & Co. wrote Hynes agreeing to convey to him this plantation whenever he shall pay all his indebtedness to them and to Caspari. The firm say Hynes owed them nothing a month before this i. e. on May 1st, the day of sale. Their conveyance to Doxey was in fulfillment of their agreement with Hjmes. Doxey was interposed to take title for Hynes.

We forbear reciting even in an abridged or condensed form the voluminous evidence that culminated in the uncovering of Hynes’ tortuous methods to hide his real participation in the various transactions laid before the lower court. Exceptions were made to the reception of some of it, and bills were taken, but we approve the ruling below for the reason that the greatest latitude is permitted in the introduction of testimony where the object is to uncover simulation and to penetrate the disguises fraudulently adopted by a debtor to screen his property from his creditors. Gaidry v. Lyons, 29 Ann. 4.

The judgment decreeing the titles to Doxey to be simulations, and subjecting the lands to the plaintiff’s judgment is correct, but we think the postponement of that judgment to Doxey’s claim for money lent to Hynes is error.

Doxey invokes Wang v. Finnerty, 32 Ann. 94 as justifying this part of the judgment in his favour viz although the conveyances to him are simulations and void as sales, they may be good as a contract of security. This may be true, but it does not follow therefrom that this security should take precedence of Dickson’s.

Dickson’s judicial mortgage dates from May 1880. The CasxDari purchase in Hynes’ interest had been made shortly before. The Stephens tract was bought for Hynes within a year after. Dickson’s mortgage attached, to them. If Doxey lent money afterwards to Hynes and took these conveyances to secure it, Dickson’s mortgage primes the later one and should be first satisfied. Not only must it be first satisfied, but Dickson must also first receive out of the proceeds of sale $213 taxes paid by him in addition to the amount of his judgment. Hynes the real and Doxey the pretended owner refused to pay the taxes upon these lands, and they were about to be sold when Dickson paid them. He must recover wliat he has thus paid.

It is therefore ordered and decreed that the judgment of the lower courtis affirmed so far as it adjudges the titles; in controversy to be simulations, and authorizes the plaintiff to seize and sell the lands for the satisfaction of his judgment, and that in all other respects it is avoided and reversed. And it is further decreed that the plaintiff have judgment against the defendant Hynes and the lands for two hundred and thirteen dollars, amount of taxes paid by him, and that he is entitled to have this sum satisfied out of the proceeds of sale in addition to his former judgment, as well as the costs of the lower court and of this appeal which are hereby taxed against the defendants. .

Rehearing refused.


author: EekNer, J.

text:
    No. 9005.
    The State ex rel. E. L. Carrière vs. City of New Orleans.
    Relator, a creditor of the city of'New Orleans by judgment rendered upon a contract of warranty in a sale of property, entered into in 1837, when the city’s power of taxation was unlimited as to rate, is entitled to the remedy of mandamus to compel the levy of a tax for the satisfaction of his debt.
    The power of taxation existing at the date of the contract was read into the contract, and so far as necessary for the satisfaction of the obligation thereof, continues to exist as fully as if no subsequent limitations on the taxing power had been passed. •
    The duty of the city is clear and creditor has the right to exact its performance.
    PPEAL from the Civil District Court for the Parish of Orleans. Iíightor, J.

      Alfred Grima for the Relator and Appellee.

      O. R. Bucle, City Attorney, and Wynne Rogers, for Defendant and Appellant.
   The opinion of the Court was delivered by

EekNer, J.

Relator is subrogated owner of the judgment which was considered by us in the case of Rousseau vs. City, 35 Ann. 557.

In that case the judgment creditor had issued his writ of fi. fa. and had seized thereunder property belonging- to the city, when the latter enjoined the proceeding on the ground, amongst others, that execution, in the manner attempted by means of the writ of fi. fa. was prohibited by Act No. 5 of 1870.

Prior to that act, creditors of the city had two remedies, viz: the writ of fi. fa., and, in proper cases, mandamus, to compel the levy of taxes, within lawful authority, for their satisfaction.

The act assumed to destroy both remedies, but the Supreme Court of the United States, as well as this Court, had held that the portion of the act which took away the remedy by mandamus was unconstitutional, in so far as it affected contracts entered into prior to its passage. 102 U. S. 203; 103 U. S. 358; 34 Ann. 1149.

The plaintiff’s judgment was rendered on a contract entered into prior to 1870, and inasmuch as it had thus been held that his remedy by mandamus remained intact, the question arose whether that part of the act prohibiting writs of fi. fa. against the city must also be held unconstitutional.

We said: “The usual and ordinary source to which creditors of a municipal corporation look for satisfaction of their debts is the power of taxation. The potent and substantial remedy for the enforcement of municipal obligations is to be found in the compulsory exercise of that power within its -lawful limitations. So long as this principal and substantial remedy is left to the creditor, the question is whether the prohibition of the writ of fi. fa. destroys, or, to such extent abrades his remedy, as to impair the obligation of his contract.” Upon the principles and authorities cited in the decision we held that it did not, and maintained the city’s injunction.

Acting upon this hint the relator, in the instant case, resorted to the remedy of mandamus to compel the city authorities, at their next annual tax levy, to levy a tax sufficient to satisfy his claim and to set apart and appropriate the same to said purpose. From a judgment making the mandamus peremptory the city appeals.

In 1837, the city of New Orleans soLd immovable property, the price of which has been paid. In the act of sale the city entered into the usual contract of warranty against eviction. Subsequently, the title warranted by the city was annulled by competent judicial authority and the vendee was evicted.

Suit was brought on the contract of warranty and the final judgment, here involved, was recovered.

The judgment lias been duly registered as required by Act 5 of 1870, and it is affirmatively shown that subsequent budgets made no appropriation for its payment and that there exists no prospect of speedy satisfaction under that process.

At the date of relator’s contract, it is admitted that the city’s power of taxation was unlimited as to rate.

As we have heretofore said, all the authorities agree that this power was read into the contract and could not be revoked to the prejudice thereof. State ex rel. DeLeon vs. City, 34 Ann. 483.

Quoad this contract, the power exists as fully as if no subsequent limitations of the taxing power had been passed. Id.

Thus recognizing the continued existence of the power, we consider that the right of the creditor to exact its exercise by the writ of mandamus was fully settled in our former decision.

The only authority quoted by the city attorney is that of United States vs. Macon, 99 U. S. 582, which is strangely inapplicable. There, the statute authorizing the contract limited the special tax for its satisfaction to one-twentieth of one per cent, and a general statute in force at the date of the contract limited the general power of taxation to one-half of one per cent, both of which powers had been exhausted, and the court naturally recognized its want of right to enforce additional taxation, saying: - “We have no power, by mandamus, to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new rights or confer new powers; all we can do is to bring existing powers into operation.”

Certainly this is sound law, and we should be the last to step one inch beyond it. All we are asked to do is to “bring into operation” the power of taxation existing at the date of the contract, and which, under the Constitution of the United States, as consistently interpreted by its highest judicial expounder, continues to exist as far as necessary for the enforcement; of the obligations of that contract.

There is no question here of a special tax. We simply compel the performance, of the city’s clear duty to exercise the power of taxation conferred upon it by the Legislature, and not exhausted, for the satisfaction of its valid Obligations.

Let it be well understood that this case stands upon its own bottom. It is the case of a valid contract, the legislative authority for which is not questioned, having no connection with budget revenues and expenditures, entered into long prior to Act No. 5 of 1870, at a time when the city’s power of taxation was not limited as to rate. The last feature removes it from any application of the decision in State ex rel. Griffin vs. Shreveport, 33 Ann. 1179.

We are particular in thus emphasizing the character of this case, because other cases are under submission involving questions touching the rights of creditors not here involved, as to which we wish it understood we express no opinion.

Judgment affirmed.


author: Bermudez, C. J. Fenner, J. Todd, J. Bermudez, C. J.

text:
    No. 8489.
    John T. Moore & Co. vs. Emory Clapp and John J. Gidière.
    Where factors agree with, a planter that they will pay to a third person a stated amount upon roceipt from him of a designated number of hogsheads of sugar, and the planter ships a portion of the sugar, the factors are liable to such third person on the stipulation in his favor, to the extent of the proceeds of the shipment. But where a portion of the crop is held by the manufacturers of the sugar under a pledge, which the factors are compelled to pay to get the sugar, and it is also subject to the privilege of the laborers, which they had to assume, and the sugar is shippod to the factors by the manufacturers and in their name, and its entire proceeds is absorbed by these preferred claims, the factors getting only their commissions on it, they are not bound to pay the amount of said proceeds to the said third person under the aforesaid stipulation.
    APPEAL from the Civil District Court for the' Parish of Orleans. Houston, J. ’

      Singleton, Browne & Choate for Plaintiffs and Appellees.

      Percy Roberts for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs claim to be creditors of the defendants for the sum. of $3000, in consequence of their acceptance of a certain stipidation in writing made in their favor by the latter.

The defense admits the writing, but is practically a general denial.

There was judgment for $1860, with interest in favor of plaintiffs and the defendants aiipealed. In their answer to'the appeal, the plaintiffs join' therein and pray that the judgment be increased to $2900, with interest.

The material facts disclosed by the record are simply the following:

On October 3, 1877, the plaintiffs were creditors of J. H. Aciden, a planter, for some five thousand dollars.

On that day, Clapp Bros. &-Co., Aclden’s merchants, wrote to him in these^terms:

“We beg to say to you tliat, on receipt of the first 100 liogsheacis of sugar of your growing crop, we will pay your draft to John T. Moore & Co. for two thousand dollars, and will pay your draft for $1000 in favor of said parties on receipt of each additional lot of 50 hogsheads sugar.”

This writing was immediately transmitted to John T. Moore & Co. by Acklen, who thus wrote to them:

“The enclosed letter from Messrs. Clapp & Co.' explains itself. Mr. Emory Clapp agreed with mo in reference to my drawing on my first shipments,, but said that part had been covered by my draft to you of $3000, already paid. I enclose you (2) two drafts of respectively $2000 and $2500, though this is hardly the shape I would have put it in, nor exactly what wo spoke of. Should you feel any uneasiness in this matter, let me know at once, for your courtesy in this transaction has been such that I am highly appreciative of it, I assure you,” etc.

On March 4th following (1878), Acklen notified his merchants not to pay those drafts.

This injunction -was notified by the defendants to the plaintiffs, who answered, protesting against any deprivation of their vested rights and notifying defendants to hold themselves in readiness to pay, without regard to Acklen’s letter.

On November 20, 1877, plaintiffs presented to defendants the $2000 draft, which the latter refused to pay, because they had not received 100 hogsheads of sugar, and could not pay until then.

Plaintiffs then instituted inquiry and subsequently ascertained from Foos & Barnett, the sugar planters who had a contract with Acklen to clarify his syrup and produce therefrom granulated sugar, that they had shipped to defendants 145 hogsheads of sugar, 93 in the name of Acklen and 52 in their own name; the last shipment being thus made under an understanding with Acklen and Clapp Bros.

The instruction from Acklen to Barnett, one of the firm, is dated New Orleans, January 10, 1878, and in these terms:

“ Mark entire balance of sugar: Foos & Barnett. Telegraph Clapp Bros. & Co. at once from Morgan City that you will ship over thirty hogsheads so marked. Show Nealy this; letter by mail.”

A letter to Foos & Barnett from Clapp Bros., dated New Orleans, January 18th following, contains the following: tlie balance is to be paid Mr. Acklen’s manager of the store for division among the hands. This is Mr. Acklen’s instructions. It is immaterial how the sugar is marked, let it be shipped in your neme and for your own account, and we will send you back the proceeds.”

“We have no interest in this sugar, as the proceeds will be divided among yourselves and the laborers, and you will therefore ship the sugar in your name and for your account, and when we will sell it the proceeds are to be returned to you and after you have paid your account

Barnett testifies that under their contract with Acklen for clarification and granulation, there was duo Eoos & Barnett some $3000 which were paid them by Clapp Bros, three or four days before they shipped the sugar. He further says that they afterwards had no interest in the sugar, and that it was only because of the instructions from Acklen and Clapp Bros. & Co. that it was shipped in their name. They instructed us,” says he, “to ship it that way and we did so. We had no interest in the matter whatever. It was Mr. Aelüen's sugarr and he could home it sent iohenever he pleased. It was none of our business."

Erorn this statement of the facts, as we find them, it would appear at first blush that the defendants had no valid reason to object to the payment which they were called upon to make; but they earnestly contend that they are not liable at all to the plaintiffs; that subsequently to their engagement of October 3,1877, they never received a shipment of 100 hogsheads, but one of 93 hogsheads only, and that such shipment not being that stiprdated in their engagement, they are not bound for the payment of the draft for $2000 already mentioned. They further contend that the 52 hogsheads which constituted the second shipment did not belong to Aciden, as it was made by Eoos & Barnett, in their own name and for their account, and were sold and the proceeds applied accordingly. They moreover urge that, if Acklen was the owner of the sugar, Eoos & Barnett had a lien on it for the amount due them; that they also, Clapp Bros. & Co., had a privilege on it for advances under two contracts with Acklen — one under private signature and another in the authentic form; the latter being an act of mortgage to secure $14,-000, both acts dated March 1,1877; the last mentioned only was recorded on the 3d following; that they had an interest in discharging the amount due Foos & Barnett; and that on doing so they were legally subrogated to all their rights against the sugar.

They finally insist that, under the terms of their letter of October 3, 1877, they are not bound to pay the drafts therein mentioned in favor of plaintiffs, unless the sugar shipped was delivered free from all liens and privileges, and that the 52 hogsheads in question arrived burdened with a claim upon it.

We consider the first objection as abandoned, as we find in defendants’ brief the following language:

There is bo issue between the plaintiff and ourselves as to the debit of the 93 hogsheads. It is agreed that under our letter of October 3, 1877, we are justly chargeable with them. But as to the 52 hogsheads, there is an irreconcilable difference of opinion. The question about which that difference obtains is this:
“ Is the receipt of the 52 hogsheads by the defendants to be held as a partial ñüfiUment by Aeklen of the condition on which defendants undertook the obligation in favor of the plaintiffs?”

Should it be claimed that we misunderstand this statement, and that the defendants nevertheless resist because they did not receive the one hundred hogsheads stipulated, then we simply remark that, although it would have been legitimate for the defendants to have declined receiving a number of hogsheads less than that mentioned, they cannot set up that objection after receiving a lesser quantity of hogsheads. They thereby relinquished their right to reject, and by accepting the shipment they made themselves liable pro tanto. Chitty on Contracts, 1083-4; 22 A. 150; Benjamin on Sales, 18 Pick. 178, 553.

This expression of our views applies not only to the first, but to the second; therefore, to both shipments.

It dispenses us from examining and passing upon the abstract and interesting question which defendants’ learned counsel has discussed with his usual sagacity and ability and submitted to our consideration, namely: “Is the accomplishment of a suspensive condition of a contract divisible or indivisible?”

From that statement and admission, and from our views in addition, it clearly follows that as the judgment appealed from subjected the defendants to liability only for the amount thus confessed to be chargeable, the finding of the district judge must be affirmed in that respect.

The remaining question consists in determining: whether, under the answer of the appellees, the amount allowed by the lower court should be increased so as to hold the defendants responsible besides, in consequence of the shipment of the fifty-two hogsheads by Foos & Barnett.

We deem it proper to premise that the obligation assumed by the defendants in their letter of October 3, 1877, in favor of plaintiffs, was not a nudum pactum, one for which no consideration passed.

Moore & Co. had a heavy claim for supplies furnished the plantation and considered that they had a right to a privilege which they could enforce, with a preference on the crop.

The testimony of one of the defendants indicates pretty clearly that the arrangement culminating in the letter, was the result of a sort of compromise devised to avert litigation. The object was then to silence plaintiffs. This was done by securing only part of their claim. Had not this been accomplished the defendants might have been losers.

The resistance now offered by them to the plaintiffs cannot be sustained, unless justified by law or equity.

There can be no doubt that these hogsheads never ceased to belong to Aciden, to the knowledge of the defendants and of, Poos & Barnett. The transactions relative to them clearly establish that fact. While it is true that Poos & Barnett had for the clarification and granulation of the syrup converted into the sugar, a lien and privilege upon the sugar, the result of their work, it is no less so, that, on payment to them of the amount due them, before the shipment, their claim and their lien and privilege, at least as far as they are concerned, vanished completely. They, themselves, aclcnoioledge that they then had no interest in the sugar, which xoas Aclclen’s exclusive property. The sugar was never theirs. They never claimed it as belonging to them. They merely asserted a claim upon it. The moment that claim was satisfied, the sugar was disencumbered and was Acklen’s absolutely.

Had Poos & Barnett not been previously paid and had they consigned the sugar to Clapp Bros. & Co., in their name, to be sold for their account, a different case might have been presented. Whatever, even then, the responsibilities of Clapp Bros. & Co. might or not have been to the plaintiffs, they merely would have been accountable to Poss & Barnett, their assignors, for the proceeds. But as Poss & Barnett had been satisfied before the sugar was shipped, Clapp Bros. & Co. had no further responsibility towards them.

An examination of the text of the two contracts, under private signature and authentic, invoked by the defendants, leads us to the inference that it was not thereby understood that, as a security for the reimbursement of advances made by them, they would have a lien on the crop. No dortbt, privileges are the creature of the law, but they are strieii juris and arise only in the cases and in the circumstances specified by law.

Whatever the terms and stipulations in those acts be, it is clear that a privilege does not exist in favor of one not shown to be a creditor, for it is an accessory. There can exist no accessory in the absence of a principal. At the time the contracts were entered into,-1877, such privilege was regarded by the jurisprudence as one which should have been recorded.

It is not shown, however, that the defendants were creditors for advances made anterior to the date of their payment to Poos & Barnett of the $3000 already mentioned, and that there was a registry from which such privilege,' in favor of Eoos & Barnett, could be deduced.

But, even conceding that the defendants were privileged creditors and were legally subrogated by the payment of a claim which was secured by a lien and was preferable to theirs, the question still remains: whether, under the terms of the letter of October 3, 1877, containing formal stipulations in favor of John T. Moore & Co., which became irrevocable by their acceptance, they, the defendants, can be heard to set up, successfully, their own claim thus acquired as against their obligees.

Clapp Bros. & Co. aver and insist that, under the letter and spirit of that contract, they bound themselves to pay, only on condition that the sugar would come to them free from all liens cmd privileges, and that the fifty-two hogsheads in question were burdened when they were shipped by Foos & Barnett.

The letter is couched in clear and unambiguous language. By it, Clapp Bros. & Co. bound themselves to pay Acklen’s drafts in favor of Moore & Co. on one condition only, which was the shipment of the sugar, the payment to be made on receipt of the sugar and to be graduated by the quantity received.

The condition that the sugar, consigned and received, was to he free from all encumbrance, was not inserted by Clapp Bros. & Co., and cannot be interpolated by this Court to the damage and injury of the third parties to whose benefit the stipulations were otherwise unquali-fiedly made and who acquired vested and irrevocable rights to the same by their acceptance of them. R. C. C. 1890, 1902.

If the case was doubtful, the agreement would have to be interpreted against them, for they contracted the obligation. Where doubt or obscurity arises for the want of necessary explanation which one of the parties ought to have given, the law provides: that the construction most favorable to the other party should be adopted, be that party obligor or obligee. R. C. C. 1957, 1958.

It is good evidence of the existence of doubt or obscurity, that the members of this Court are divided in opinion on the subject.

Even if the contract contained the condition that the sugar should come free from ail liens, it could not be plausibly argued that such a clause would cover liens in favor of the obligors, for such could not be within the interest of the parties.

The law applicable to this case is too plain to be misunderstood and misapplied.

A stipulation pour cmiriá may be revoked at any time before acceptance, but not afterwards. 3 N. S. 207; 11 L. 44; 6 A. 26; 6 R. 410 ; 12 R. 152 ; 2R. 304.

Creditors may avail themselves of a third person’s obligation, ex ceguo et bono, to their debtor. 3 A 294.

A creditor suing a third person who has assumed the debt on a contingency which has happened, cannot be defeated by equities which the latter may have against the original debtor. 8M.60; 4L.238; 18L.42.

Where a letter authorizes the party to whom it is addressed to draw, up to a certain amount, on the writer and is evidently to be exhibited to third persons to induce them to take the bills so drawn, the promise which the letter contains is a promise to any one taking a bill on its faith. 3 A. 690 ; also 10 A. 340; 12 R. 52; 18 A. 678; 27 A. 653 ; 28 A. 140; 18 Wall; E. Converse, 30 A. 199; 28 A. 88.

Factors who promise to accept the draft of a shipper as soon as they receive a bil! of lading of the consignment are bound on receipt of the bill and can only apply to a debt due them by the owner, the surplus of the proceeds of the consignment. 19 L. 218.

From whatever standpoint the matter can be viewed, it is undeniable that the crop consigned: the sugar and molasses (including the fifty-two hogsheads shipped by Foos & Barnett), have realized more than was necessary to pay the shippers, the hands and the plaintiffs’ present claim $2900.

After a full review of the facts as shown by the record and an attentive consideration of the law applicable to the case as stated by counsel and as found by us, we are unable to come to the conclusion that the obligation sued on is to be construed as incorporating the condition that plaintiffs’ drafts would only be honored, if the sugar mentioned in the instrument should be received free from all lions. We cannot even then admit that uffien it was received, it was in any way burdened.

It is, therefore, ordered and decreed that the judgment appealed from be 'amended by striking therefrom the words eighteen hundred and sixty dollars” ($1860), and substituting thereto the words “twenty-nine hundred dollars” ($2900), and that thus amended, said judgment be affirmed, with costs in both courts.

Justices Fenner and Manning dissent.

Fenner, J.

I concur in the decree except as to the fifty-two hogsheads received from Foos & Barnett. Those hogsheads were not in Adden’s possession and control, and could not have been shipped by him without first paying the $3000 due thereon to the manufacturers. Had the latter shipped the sugar with instructions to pass to Aclden’s account the surplus over the stun due themselves, clearly this surplus would have requesented the value of all of that sugar, which could, under any circumstances, he said to have been received from, or for Aciden. The case is not, in my judgment, altered by the fact that defendants paid the sum due the manufacturers before the latter shipped the sugar, instead of afterwards. I think, therefore, that of the second draft only such proportion is due to plaintiffs as the surplus going to Acklen’s account bore to the value of one hundred hogsheads. To this extent I dissent from the opinion and decree.

Maiming, J., concurs in this opinion.

On Rehearing.

Todd, J.

Since the rehearing was granted in this case we have reexamined with the greatest care and patience all the questions of law and fact presented by the record, which have been so ably and elaborately discussed by the learned counsel for the respective parties.

The result of this revision, even conceding that the errors of fact suggested by defendant’s counsel in oru’ previous opinion are correctly charged, has been to confirm us in the conclusions announced in that opinion as to the liability of the defendants to plaintiffs, to the extent at least of the ninety-three hogsheads of sugar received by them from Aciden.

There is no doubt in our minds from the plain text of the letter of the 3d of October, 1877, so often referred to, and the basis of the defendants’ obligation, and from the circumstances under which it was written, that it was the true intent and understanding of the parties that defendants were to pay the amounts stipulated therein to the plaintiffs upon being placed in funds by means of the contemplated shipments, to the extent specified; and that the sugar so consigned, whether one hogshead or one hundred, was to enure to the benéfit of the plaintiffs, and to furnish funds to pay them in the relative proportion of the entire amount promised to each consignment, or its proceeds. The stipulation of defendants in plaintiffs’ favor in this letter should be viewed without reference to the condition of accounts between defendants and Aciden at the date of the letter, and, in fact, without taking into consideration the indebtedness of Acklnn to the defendants; and the matter should be treated, so far as plaintiffs were concerned, as if Aciden did not owe the defendants at the time any amount whatever — for in our view the indebtedness of Acklen to the defendants at the time constitutes no factor' for determining the question of their liability under their engagement. The plaintiffs were strangers to the condition of affairs between them, or to be so presumed ; and the only thing we have to deal with in determining their rights is the written promise in their favor, and whether or not the condition or the consideration of that promise was fulfilled. The condition expressed in the writing formed, in our opinion, the sole consideration for the payments promised, or the only one entitled to be considered; and the pertinent inquiry is, was that condition complied with, and if so, to what extent.

Were it necessary to look further for a consideration, it could be found-in the fact that plaintiffs were the creditors at the time of Ack-len, and so acknowledged by the defendants, and whether privileged creditors or not is immaterial. That upon receiving this promise, looking to the payment of their debt, they rested content, and took no step to collect or otherwise secure it, although at that time, so far as the evidence shows, there were no recorded privileges or pledges on or against his crop in favor of defendants or any one else.

We are thoroughly satisfied that from no standpoint from which it can be viewed could the contract or engagement be considered as a rmdwrn pactmi; and at the same time convinced that it was not of that class of contracts cited by defendants’ counsel, containing an indivisible condition and dependent upon the happenings or fulfillment of that condition in its entirety for its obligating force. We have studied closely the authorities cited to sustain the counsel’s propositions on both points mentioned, and find them inapplicable.

Returning to the inquiry as to whether the conditions of the contract were fulfilled in whole or in part by shipments of sugar by Acklen, it is undisputed that he shipped to the defendants ninety-three hogsheads ; and under the views announced, plaintiffs were clearly entitled to the net proceeds of the same.

II.

As to the fifty-two hogsheads subsequently shipped, we are equally as well satisfied that our conclusion, as announced in our former opinion, was erroneous, and defendants should not be charged with their proceeds.

In the first place, these fifty-two hogsheads were not shipped by Acklen nor received from him. The evidence, moreover, fully establishes that it was not in the power or within the resources of Acklen to ship them. Before their shipment and receipt by the defendants they were beyond his control.

In point of fact, Acklen had abandoned all claim and interest in this lot of sugar, and had so announced to the defendants, owing to its being-in possession of Foos & Barnett, the manufacturers of it, under pledge for three thousand dollars; and besides, as we are fully satisfied, subject to the privilege of the laborers for all that it was worth over that sum. It is true that the sugar had not been seized by the laborers, but a number of barrels of molasses had been seized by some employees on the plantation; but whether all of the laborers, or any of them, made or joined in the seizure, the evidence does not inform us. That the wages of the laborers had not been paid and is still owing is proved, and such debts to the laborers necessarily carried with it a privilege on all the products of the plantation.

Consequently, Acklen did not and could not comply with the condition on which plaintiffs were entitled to be paid anything out of its proceeds, and on which their right to look to defendants for payment solely depended. That such was the case was owing to no fault or connivance of the defendants.

In this condition of affairs the defendants went forward, paid the amount of the pledge, afid assumed to pay the laborers; and when the sugar was received and sold, remitted the balance of the proceeds, which was paid over to the laborers, as shown by the evidence in the record; and thus defendants realized or received nothing for this sugar except their commissions on its sales. Under these circumstances, how can it be said that the condition, and the sole condition on which payment was to be made as relates to this lot of sugar, was ever fulfilled ? The contract evidently contemplated — -and neither party could have misunderstood it in this respect — that it was out of the proceeds of the sugar, as realized by the defendants, that plaintiffs were to be paid: in other words — in accordance with the testimony of one of the defendants — that the sugar was to furnish the means to pay the plaintiffs.

Suppose, for instance, that the defendants had not interposed to rescue this sugar from the claims upon it, and that it had been seized — as probably it would have been — to pay these debts, and whilst under seizure it had been shipped to the defendants and they had sold it and remitted the proceeds to the sheriff to pay off these claims, could it be held that, in such case, the defendants would still be bound to again pay the amount of these proceeds to the plaintiffs'?

Defendants were not bound to wait till this impending event happened before acting; and in taking measures and spending their money to avert it they should not be placed duriori casu than if they had delayed till the threatened complication had become an accomplished fact. In, either event, they would have been stripped of the entire proceeds of the sugar.

Much has been said in argument as to the effect of the payment made by defendants to Foos & Barnett and to the laborers, and whether such payment subrogated them to the rights of the creditors, and whether the sugar was not still the property of Aciden when received by defendants. The determination of these and other questions suggested are not necessary, in our opinion, to the decision of the case and have no important bearing on it.

The substantial facts to be considered, and they are all-sufficient for our conclusion, are, that under the contract Acklen was to ship so many hogsheads of sugar as a condition precedent for the payment stipulated to be made the plaintiffs by defendants, and thus furnish the means out of which those payments were to be made. To the extent that Aciden complied with the condition and furnished the contemplated means the defendants were bound; but when he failed to provide the means by the expected shipments, whether the failure was from one cause or another, so it was not by the fault of the defendants, they were not bound. The fact that in order to get the sugar defendants had to pay out the entire value of it, amounted to the same thing as if they had never received it and it had never been shipped to them at all.

For these reasons the decree heretofore rendered is now set aside; and it is ordered/adjudged and decreed that the judgment of the lower com’t be affirmed, defendants to pay the costs in both courts.

Dissenting Opinion.

Bermudez, C. J.

To decline to recognize that the plaintiffs are entitled also to the proceeds of the 52 hogsheads of sugar, is simply to refuse to admit the existence of facts and to embarrass the application of the law.

The theory upon which defendants rest such resistance is, that this sugar, which was in the possession of Foos & Barnett, had ceased to be in Acklen’s control and was affected at the time of shipment with a lien and privilege in favor of the granulators and others; that it was received by defendants thus encumbered and that the proceeds of sale were applied to the extinction of the claims upon it.

The sugar never ceased to belong to Acklen, even after it bad been granulated. It continued to be bis until it was sold by defendants. When tiras sold the proceeds representing it belonged to Acklen.

It may be that Foos & Barnett could, have exercised the right to detention for the payment of their claim for granulation, but whatever their rights were, they never were the owners of the sugar.

They might have parted with it and transferred their rights over it in favor of any one they pleased, but this could have taken place only by means of a contract, which never was entered into. Some party having an interest might have paid them and thus become legally sub-rogated to their rights; but the defendants have no interest which could, on payment, have entitled them to a subrogation. They were utter strangers in that respect and can no more claim to be in the shoes of Foos & Barnett, and others pretending to have claims over the sugar, than if they never existed.

It was by the joint action of Acklen and of defendants that the sugar passed from Foos & Barnett’s possession, and this too without any notice whatever to the plaintiffs, in whose favor stipulations had been •made by those parties, which they had duly accepted.

Foos & Barnett expressly say that they had no interest in the sugar at the time of shipment; that they shipped it as it was, by the orders of both Acklen and of defendants; that it was none of their business how it was done.

The supposed instances of a seizure by Foos & Barnett of the sale of the sugar by defendants, far from justifying the conclusions reached,are antagonistical to and completely demolish them.

No doubt the proceeds in such case would be subject to the claim, if recognized, of the seizing creditors; but who can dispute that, if the latter had no privilege, or if a third party without interest had paid them without obtaining a transfer and subrogation, that those proceeds would have remained subject to the claim of the plaintiffs under the tripartite contract?

Take the familiar instance of a seizure of real estate to satify a claim secured by vendor’s privilege and mortgage, or still the more common and analogous case of a landlord who has a right of retention, seeking under a writ payment of his rent or possession of the property seowr-ing it.

Suppose that one not a mortgage creditor, or one having no interest to pay the claim, should come forward and discharge the same without any transfer or subrogation from the suing creditor, could such party, even as regards the defendants, claim a right to enforce the writ or claim with privilege or in any manner ? How, then, could he do so as against parties who have by contract adverse rights, or who at least are third parties. Such person would become and remain simply an ordinary creditor.

The supposed cases cannot be dissimulated from that at bar.

One who has no privilege or right of detention cannot transfer any. If he have and be paid by one having no interest, the right to the security is not transferred but is extinguished for ever.

This is precisely what has occurred here. Poos & Barnett had no privilege. If they had, they were not paid by anyone having an interest and did not, by contract, transfer their claim with its security, as understood by the defendants and Aciden, himself. How then can they claim any preference over plaintiffs ?

The only question decisive of this branch of the case, is that of transfer and subrogation vel non. Tested by it, plaintiffs position is impregnable and the validity of their claim is undisputable. It is to regretted that it was not considered and determined.

I think that the previous decree is correct, that it has done justice between the parties, and that it should be maintained, not only in part as it is, as concerns the ninety-three hogsheads, but also as to the fifty-two remaining ones.

Pochó, J. concurs in this opinion.


author: Pociié, J.

text:
    No. 9027.
    Succession of Ellen Welch, wife of Roger Dixon.
    The appointment of an administrator is not necessary, and it will bo refused, in a proceeding intended for the settlement of a community between the surviving spouse and the forced heirs of the deceased, when the succession owes no debts, and when it appears that the community can be legally settled by means of a partition between the heirs and the surviving spouse who has contracted a second marriage.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Halm, J.

      B. 0. JEJlliott for the Appellant.

      B. Shachélfórd, contra.

   The opinion of the Court was delivered by

Pociié, J.

Roger Dixon prosecutes this appeal from a judgment rejecting his application to be appointed administrator of the succession of his wife, Ellen Welsh. His application is resisted, by the two surviving forced heirs of his wife, who contend that no administration is necessary to a succession owning only community property and owing no debts.

The record shows that Ellen Welch died in 1853, and that her surviving husband has since contracted á second marriage, and that her succession owes no debts.

Appellant urges that this negative proposition is not established by opponents; and he contends that the court will not presume that there are no debts.

As he failed to allege the existence of any debts, as thirty years have elapsed since the death of Ellen Welch, and as her succession was opened in September, 1883, only, we think it is not a violent presumption, to conclude that, if the deceased had left any debts, they have been extinguished by prescription, and that, therefore, the succession owes no debts.

The avowed purpose of appellant in this proceeding is to effect a settlement of the community heretofore existing between his deceased wife and himself, the usufruct of which he has lost by reason of his second marriage. The law points to the action of partition as the proper mode of accomplishing that result; and it does not contemplate, nor will it sanction, the expense of an administration, the costs of which would fall exclusively on the succession of the deceased wife, when the costs of a partition would be borne in equal shares by the whole community.

Appellant has entirely failed to advance any reason, either in law or by the facts and circumstances of the case, which would justify the court in burdening this succession with an administration. Succession of Story, 3 Ann. 502; Burton vs. Brugier, 30 Ann. 478; Succession of Walker, 32 Ann. 322.

The judgment appealed from is correct, and it is therefore affirmed, with costs.


author: Todd, J.

text:
    No. 9163.
    John Pasley vs. Mrs. Ann McConnell.
    In a suit to recover immovable property and to annul a Sheriff’s sale, under which defendant claims title thereto, accompanied by more than one year’s possession, a sequestration of the property should not be ordered without the usual bond, on an allegation that the defendant is collecting the revenues and fails to pay the taxes and make the necessary repairs to the property.

      PPEAL from the Civil District Court for the Parish of Orleans. f~\ Tissot, J. -

      W. 8. Benedict, for Plaintiff and Appellant.

      J. Magiorvi, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffbrought suit against the defendant to recover certain immovable property situated in this city, and to annul a sheriff’s sale, under which defendant purports to have acquired title thereto. Alleging that the defendant was collectingthe revenues of the property and failing to pay the taxes due thereon, and also failing to make the necessary repairs, the plaintiff asked that the property be judicially sequestered during the pendency of this suit.

Subsequently he took a rule on the defendant to show cause why the sequestration should not issue. He made affidavit to the facts of the petition, but tendered no bond. The judge below rejected the application and dismissed the rule, and from this judgment the plaintiff has appealed. We think the judgment should not be disturbed.

We learn from the petition that the defendant is in possession of the property in dispute, and had been for more than eighteen months prior to the institution of the suit under a sheriff’s sale.

We know of no law that would authorize the court, under the facts shown, to judicially sequester the property without requiring a bond.

Article 274, C. P., authorizes a court to order a sequestration ex-officio, of real property where the title to such property is in dispute and where one of the parties does not seem to have a better right than the other.

It is further provided — C. P. 275 — that a sequestration may be ordered at the request of one of the parties to the suit; and the third clause of this article authorizes the issuing of the writ for the very causes set forth in this instance, i. e. — wasting the revenues and suffering the property to become dilapidated, etc. The next Article (C. P. 276) prescribes, in substance, that a party demanding a sequestration for any of the causes set forth in the preceding article must annex to his petition his affidavit as to the facts and execute his bond for such amount as the judge shall determine, with proper surety, to be responsible for such damages as the defendant may sustain, etc.

We see nothing in the instant case to dispense the plaintiff from compliance with this positive requirement of the law touching the giving of the prescribed bond.

Judgment affirmed, with costs.


author: Fenner, J.

text:
    No. 9049.
    Leisy & Co. vs. Wm. Buyers et al.
    The condition in a charter-party, “ Vessel to have lien on cargo for freight, dead freight and demurrage,” though binding between the parties, only aifects cargo shipped by third persons when the latter, expressly or impliedly, have consented thereto.
    Mere knowledge of the existence and terms of the charter-party, if accompanied by no modifying facts, might suffice to bind the third shipper to its conditions. But when the course of dealing of the vessel has been such as to lead shippers to suppose that the conditions would not be insisted on, and, under such boliof, the goods had been sent to the vessel, and when the vessel’s agents must have known, when they received the goods, that the shipper would not assent to the conditions, the implication of consent must fail and defendants should not have laden the goods unless they were willing to give clean bills.
    Under the circumstances of this case, hold tbat defendants were bound either to give clean bill of lading or return the goods.
    PPEAL from the Civil District Court for the Parish of Orleans. £1 Tissot, J.

      W. S. Benedict for Plaintiffs and Appellants.

      T. J. Semines & Bayne and Henry Denis for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The case here arises under the same charter-party which was considered by us in G-omila vs. Adams, recently decided; but the relations of the parties and the questions presented are very different.

Here the plaintiffs are third persons whose goods went on board the ship without any express agreement as to their being subject to the conditions of the charter party. On presenting their bills of lading, in the ordinary form, for signature, the captain refused to sign without inserting in them the clauses referring to the charter-party and binding the shippers -tb its conditions including the stipulated lien for freight, dead freight and demurrage.”

Plaintiffs refused to accept such bills, and demanded clean bills or return of their goods.

This demand being denied, they brought the present suit, accompanied by process of sequestration, wherein they ask judgment against the captain and owners condemning them to return the goods, with damages.

Prom an adverse judgment plaintiffs have appealed.

Following plain principles of the law of contracts and well considered authorities, we held in the Qomila case, that the stipulation in the charter-party, vessels to have a lien on the cargo for freight, dead freight and demurrage,” was valid and binding as between the parties, and gave the vessel the right to refuse cargo not subjected to such lien.

The effect of such stipulation upon cargo shipped as the property of third persons has been considered in sundry cases. It is well settled that where the shipper has accepted bills of lading expressly subject to the conditions of the charter-party, his goods fall under the lien. Porteous vs. Watney, 8 L. R. Q. B. Div. p. 534.

Even in absence of such clause in the bills, the original shipper might perhaps be bound if he shipped with full notice of the charter-party and its special provisions, though indorsers of his bill would not be bound. Foster vs. Colby, 3 H. & N. 705; McLean vs. Fleming, 2 L. R. Sc. App. 128.

On the other hand, it is firmly held that third persons shipping without notice of the charter-party, are not bound, and if their goods have gone on board, are entitled to demand clean bills or a return thereof. Peck vs. Larsen, 12 L. E., Eq. C. p. 377; Grand vs. The Ibis, 3 Woods, U. S. C. C. 28.

We think we stated the correct doctrine, in general terms, in the Gomila case, when wo said that the vessel would have no such lien upon cargo shipped by third persons, unless the latter had expressly or impliedly consented thereto.”

Indeed, even when the bill of lading contains express reference to the charter-party, the rule seems to be that, in order to charge the shipper or endorsee of the bill with any other obligation than the payment of freight, plain words to that effect shordd be used. Smith vs. Sieveking, 4 E. & B. 945; Wegner vs. Smith, 24 L. J. C. P. 25; Chappell vs. Comfort, 31 L. J. C. P. 58; Grey vs. Carr, L. R. 62 B. 522; Russell vs. Niemann, 33 L. J. C. P. 358; Gage vs. Morse, 94 Mass. 401.

The touch-stone of the present controversy lies in the determination of the question whether or not the plaintiffs, expressly or impliedly, assented to these conditions. If they did, the vessel had the right to require them to accept bills making such conditions effective, and was not bound to incur the labor, expense and inconvenience of unloading the goods. If, on the other hand, the goods were received without such consent, the vessel was bound either to sign clean bills or to return the goods. Peck vs. Larsen, above cited.

If there were no other attendant facts than the existence of the charter-party, and knowledge thereof by plaintiffs or at least by their agent, prior to and at time of sending the goods, we should have little difficulty in inferring tlie clearly implied consent of plaintiffs, to its conditions, and in maintaining tlie judgment appealed from.

But if we find from tlie evidence tliat, notwithstanding -tlie charter-party, the course of defiling of defendants with shippers generally and with plaintiffs’ agent in particular had been such as to lead them to suppose that its conditions would not be insisted upon, and that goods would be received under clean bills of lading, and that under such supposition and belief the goods had been sent to the vessel, and that defendants must have known, when they took the goods on board, that plaintiffs would not be willing to assent to the conditions of the charter-party ; we think that the attempted implication of consent must fail, and that defendants should not have taken the goods unless they were willing to meet the known expectations of plaintiffs.

We’have studied the evidence with great care, and although plaintiffs’ agent perhaps acted with loss caution than extreme prudence might have dictated, we are yet convinced that the dealings and communications of defendants authorized him to believe that the cotton would be received under clean bills; and still more clearly are we convinced that the defendants knew, at the time when they took the goods on board, that plaintiffs would be unwilling, under any circumstances, to subject their goods to. the objectionable lien. Such being the case, defendants had no right to infer or to exact their consent, and should not have received the goods unless they were willing to waive it.

As to their course of dealing, we cannot better signalize its character than by stating that out of 7500 bales of cotton shipped on the vessel, part received before and part after that of plaintiffs, the one hundred bales of the latter, are the only ones for which clean bills were not given.

It is undisputed that for a considerable period and up to the very moment of reception of plaintiffs’ cotton, defendants had been receiving shipments indiscriminately and giving clean bills therefor. The like course was resumed and continued immediately afterwards.

Plaintiffs’ cotton reached the vessel and was taken on board, part on the 19th and part on the 20th of October. The 19th was the day when, under defendants’ construction, the demurrage began to run. The agents of the ship had received a cable from the owners to give no more clean bills, unless the denmrrage was paid day by day. It is true that plaintiffs’ agent was advised of this after the order for sending down their cotton had been given, but as the charterers had not refused to pay tlie demurrage and liad asked time to consider; it was not deemed worth, while to stop the cotton.

On the 19th, the agent, who represented also another shipper, Mr. Jeanrenaud, had an interview with the captain and agents of the sliip about his cotton, in which it was stated that, although if demurrage was not paid, he could not got a clean bill under his contract with tlie charterers, yet if he would obtain a cancellation of the order of G-omila & Co., the charterers, the ship would take his cotton under direct contract and give a clean bill. What more natural than for the agent to infer that plaintiffs would be treated likewise and to conclude that either the demurrage would be paid, or if not, it would only be necces-sary to obtain a cancellation of G-omila’s order, and, in either case plaintiffs’ would get their bill?

Tlie demurrage was not paid, but Jeanrenaud’s cotton went down on the 20th, the very day that the last of plaintiffs cotton was received, and, on Ids procuring cancellation of Q-omila’s order, clean bills were given him. Plaintiff obtained like cancellation, but his bills were refused on the inequitable pretext that he was caught by having his cotton down, without first getting the agreement which Jeanrenaud had secured.

Such unjust discriminations cannot be countenanced. The contract sought to be imposed upon plaintiffs is so hard that we share the surprise expressed by one of the learned English judges that any man should ever be willing to enter into such an one. We will enforce the contract nevertheless, when consent thereto is brought home to parties, expressly or by clear implication. But, under the circumstances of this case, we feel that an unjust advantage is sought to be taken of a confiding shipper; that he never consented or intended to consent to this ruinous bargain; and that defendants, when they received his cotton, well knew that he did not and would not consent.

Acknowledging the force and ability with which strict, technical principles of law are arrayed in support of defendants’ position, we are of opinion that the circumstances of this case remove it from their application, and that it is one for the application of the maxim, “apices juris non sunt jura."

It is, therefore, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs and against the defendants in solido, condemning the latter to return to defendants the one hundred bales of cotton shipped by them on October 19 and 20, 1882, on board tlie ship “Altnacraig,” or to account for the same, and that the sequestration herein issued be maintained, defendants to pay costs in both courts.

Rehearing refused.


author: Manning, J.

text:
    No. 9182.
    The State of Louisiana vs. Joseph Hyland.
    Hew trials in criminal cases are not grantable for newly discovered evidence if it be only cumulative.
    The word ‘ imprisonment ’ alone and unqualified, when used in criminal statutes, is in contradistinction to ‘ imprisonment at hard labour,’ and means any other confinement than the latter.
    Where the punishment of a crime is imprisonment at hard labour and a pecuniary fine, and both are inflicted, and in default of payment of the fine, the criminal is sentenced to another term of imprisonment at hard labour, the alternative punishment must be altered to imprisonment.
    Every convicted criminal should be adjudged to pay the costs of the prosecution, and should be compelled to pay them, if legal process can be made effective.
    PPEAL from the Criminal District Court for the Parish of Orleans. Bomcm, J.

      J. G. Egan, Attorney General, for the State, Appellee.

      Jas. O. Wallcer, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This case was remanded with instructions to the lower judge to hear and preserve the testimony of the witnesses offered by the defendant in support of his affidavit on his motion for a new trial, and to consider the same and to act thereon. The judge has obeyed those instructions, and has refused a new trial.

Two of those witnesses were no longer accessible. One of them had left the State, and the other could not be found. A third witness is not produced nor is his affidavit, and Ms absence is not accounted for. The affidavit of the fourth witness is alone taken, and the judge permitted that to be supplemented by two others whose names were not in the original application.

The judge states that this new testimony is identical in character with that given on the trial — that it is merely a repetition of what was sworn by others before the jury, and that the counter testimony prevailed, was believed by the jury, and a conviction followed.

New trials are not grantable for newly discovered evidence if it be only cumulative. Roberts v. State, 3 Kelly, 310; Com. v. Flanagan, 7 Watts & Serg. 415; Com. v. Murray, 2 Asbmead, 41; Com. v. Williams, 2 Ashm. 69; Giles v. State, 6 Geo. 276.

It cannot be expected tliat we should order a new trial because two of the witnesses are not accessible. If they could not be had when their affidavits were needed on the trial of this motion, they cannot be had for a new trial on the merits. There is no suggestion that there is any probability or possibility they can ever be reached. But the defendant has not been injured by their disappearance. On turning to his affidavit and motion for a new trial in the former transcript, which is brought up with this, their names are mentioned along with the others, and the nature of the testimony they would have given is stated, and it is the same with all, and is therefore only cumulative like that of the others.

The sentence is identical with that in Ryder’s case, wherein we held that the word 'imprisonment’ alone and unqualified, when used in criminal statutes, does not import imprisonment at hard labour, and therefore when one has been sentenced to imprisonment at hard labour for a crime and to a pecuniary fine in addition thereto, and in default of payment of the fine to another term of the same kind ,of imprisonment, the latter part of the sentence is illegal. The sentence of this prisoner to the full term of two years at hard labour and to a fine is legal, and he may be sentenced, in default of paying the fine, to imprisonment otherwise than at hard labour for not longer than one year. Rev. Stats, sec. 980.

Another correction is prayed of what is termed an inadvertence or irregularity in the sentence whereby an ambiguity is introduced to the prisoner’s prejudice. The sentence quoad the fine fixed it at five hundred dollars inclusive of costs, and in default of payment, inflicted additional imprisonment and “to pay the costs.”

There is no ambiguity and no inadvertence since it is the duty of every judge presiding at criminal trials to condemn every party convicted to pay the costs, and to compel him to pay them if legal process can be made effective. •

,The sentence is perfectly intelligible. If the defendant shall pay five htmdred dollars, that discharges the fine and costs. If he does not pay that sum, he must suffer one year’s imprisonment, but must pay the costs in any event.

The case must be remanded for the sole purpose of sentencing the •défendant anew.

It is therefore ordered and decreed that the judgmont below is set aside, and the case is remanded for sentence to be passed upon the prisoner according to law.


author: Beemudez, C. J. Fenner, J.

text:
    No. 9170.
    The State ex rel. Joseph Menge vs. N. H. Rightor, Judge of the Civil District Court, etc.
    Prohibition is the proper remedy to arrest further proceedings in an appealable case where a suspensive appealhas been obtained from the judgment therein rendered and where, the surety being suoh as the law requires, the lower court assumes to order execution to
    Under the provisions of Act 24 of 1876, amending Article 575 of the Code of Practice, the surety must not only be good and solvent and reside within the jurisdiction of the court, but have property susceptible of being legally reached by the sheriff and subjected by him to the payment of the pressing creditor. A surety who carries all his property in his pocket is not such a surety as the law requires on judicial bonds furnished to suspend the execution of judgments. 28 Ann. 884, overruled.
    The surety in this case is not a sufficient one and the order of appeal was properly rescinded.
    Application for prohibition.

      Braniglm, Bucle & Bmkelspiel and W. 0. Han't for the Relator.

      James Wilkinson and Jos. H. Spewring for the Respondent.
   The opinion of the Court was delivered by

Beemudez, C. J.

This is an application for a prohibition. The relator complains that the district judge has rescinded an order for a suspensive appeal obtained by him on the ground that the surety in the bond furnished is not good and solvent, as the law requires.

The district judge returns, objecting that the present proceeding is not the proper one and that the surety is insufficient.

I.

It is now a well-settled rule of practice that when a suspensive appeal is set aside by a lower court on the ground that the surety does not possess the qualifications required by law — (when in truth such is not the fact) — the proper remedy is a prohibition.

It has been thus held, on the theory that, as the lower court is divested of jurisdiction the moment that a suspensive appeal is obtained and perfected by the giving of a sufficient bond with proper surety, that court cannot resume jurisdiction and execute the judgment sought to be suspended, unless the bond or the surety are in reality not such as the law requires.

Tlie district judge claims that there has been made an. innovation in the law by Act 24 of 1876, which provides that “the party furnishing the security shall prove his solvency, to the satisfaction of the court, whenever it is questioned by any party interested in the appeal.”

The object of this formal legislation was to do away with an offensive jurisprudence of several years’ standing, which had just previously established that the insufficiency of the surety had to be shown by the attacking party, and to fasten beyond cavil the burden of proof as to the sufficiency of the surety, on the principal in the bond. See 22 Ann. 592; 23 Ann. 714; 25 Ann. 616. The onus now rests on the appellant. See 35 Ann. 737.

No doubt inferior courts have always had, and still have, primarily, jurisdiction to test the sufficiency of the bond and of the surety, but their determination on that subject has never been considered beyond review by the appellate court. This, necessarily, should take place in as summary a manner as practicable, in furtherance of the ends of justice.

An attempt to execute a judgment from which a suspensive appeal has been taken and perfected, by the giving of such bond and surety as should be furnished, is, therefore, deemed a usurpation of authority, restrainable by prohibition.

II.

The evidence shows that the surety owns a piece of vacant real estate, negotiable securities and his room furniture; that he is indebted in the sum of $1100 — $452 whereof are secured by mortgage on the property and the balance by pledges worth between $700 and $800, assessed for taxes at $500 or $600; that the negotiable securities are worth $1000 and over, without stating how much.

The surety, on the stand, states that the notes are in his possession, and that it would be very difficult for the sheriff to seize them undor execution, if he could seize them at all.

Conceding that the collaterals given to secure that portion of the surety’s debt, which is not protected by the mortgage, are not in the surety’s possession but in the creditor’s, and that this indebtedness is as though it did not exist, because well guaranteed, it is clear that the only tangible property which the surety does not carry about his person or conceal is the real estate, which is encumbered to pay not only the capital but also the interest, and eventually the costs of suit in case of non-payment. Deducting the capital, $452, from the highest valuation put on the property, $800, the balance left wouM be sufficient to cover tlie amount of the bond; but it is not prudent to accept the value of property assessed at $500 to be $800, and to suppose that the debt secured by mortgage, when demandable, will consist of its capital only, and will be promptly and fully paid. Should it not be so, and were legal proceedings required to enforce payment, the probability, not to say certainty, is, that the property would bring less than the valuation put on it by its owner, and that the margin between the mortgage debt and the price of sale will be absorbed by the costs of suit.

The other tangible property, the room furniture, which is not described in detail, and so insignificant that it is not even appraised, would no doubt, for the better part, be exempt from seizure under the provisions of Act 79 of 1876, sec. 1, amending Art. 644, C. P.

The only remaining property owned by the surety would then consist of the negotiable securities, which are in his possession and which he says the sheriff would not reach if lie did not choose to let him.

It is true they are valued at $1000 and more, but are they that kind of property which a surety on a judicial bond should be required to own to be such surety as the law requires ?

It is worthy of note that, as regards the qualifications of a surety on a bond for a suspensive appeal, the law has provided from the beginning to the present time, that such surety must be good and solvent; but that in 1876, the Legislature, amending Art. 575, C. P., has super-added that the surety should have property liable to seizure to the amount of the obligation.

So that the qualifications of a surety are, that he should be good, solvent and have property liable to seiewe. Act 24,1876, pp. 49, 50.

A surety must be good; that is, must be of full age, compos mentis, resident, qualified to serve; namely, competent to enter into the contract.

He must be solvent; which means, able to pay fully his debts and lia-biliities, including the amount of the bond.

He must have tangible property susceptible of seizure.

It cannot be assumed that when the Legislature undertook to amend the article by requiring that the surety should have property liable to seizure, it only meant property not exempt from seizure, for that would have been doing a vain thing, and for the reason that a surety who owned only property exempt from seizure never was deemed to be good and sufficient, as no execution could be legally levied on and satisfied from that sort of property.

What the Legislature intended to say, and did say, is, that the surety should have tangible property not exempt from seizure, i. e., assets susceptible in nature of being easily reached by the sheriff and subjected by him, by sale, to the payment of the pressing creditor’s claim.

We have taken pains to review the reported cases in which the question of sufficiency of a surety on a judicial bond has been considered, and we have failed to discover a single one in which a surety has ever been held to be, such as the law requires, who carried all his property in his pocket, a locus to which the sheriff’s grasping hand cannot, without molestation and danger, usually find its way. Such surety, we think, is not that which the law demands shall be furnished for the safeguard of a creditor whose rights, recognized and liquidated by a judgment, are designed to be kept in abeyance by a suspensive appeal or otherwise.

Pothier says that, in judging of the solvency of the surety and the sufficiency of Ms property to answer for the debt, no regard is commonly paid to movable property, as that is easily alienated and is not followed by hypothecation. Nevertheless, if the debt is moderate and the engagement is not to continue long, merchants who have a well established business are admitted, although their fortune may consist in movables. Pothier Obi. p. 319 (390), quoting Busuage.

On the report of Article 2018 N. C. which is our Article 3042 R. C. C. Freilhard says that the object of suretyship is to make certain the execution of the obligation. Hence, the surety must have property, the discussion of which is not too painful. The facility of suing a debtor forms part of Iris solvency. See Chabot Rapport, 11 Feb. 1804; La-liarz, 14 Feb.; Trielhard; 3 Feb.; Exposé du Corps Legislatif.

It is true that in France the law requires the ownership of real estate, but the authorities referred to are anterior-to the N. C. Pothier is the commentator from whom Art. R. C. C. 3042, is substantially taken.

From this stand-point, the decision made by the same Court (the effect of whose jurisprudence was abridged) in State ex rel. Fabre vs. Judge Fifth District Court, 28 Ann. 884, which comments on the act of 1876, as far as in conflict with the present views, must be considered as hereby overruled.

We here append a note of the authorities, or precedents, which we have re-examined on the question of form of proceeding and qualification of surety: 2 R. 551; 21 Ann. 43,114, 364, 735; 22 A. 115; 23 Ann. 279, 491; 24 Ann. 316, 328; 27 Ann. 662, 685, 697; 34 Ann. 90.

We concur with the district judge, that the surety offered in this case is not such as the law requires, and that he was right in rescinding the order for a suspensive appeal.

It is, therefore, ordered that the restraining order herein made in limine he annulled and that the application for a prohibition be refused, with costs.

DissentiNG Opinion.

Fenner, J.

I am perfectly satisfied that the surety in this case possessed all the qualifications required by law. Negotiable securities, and even money, are undoubtedly, under the law of this State, “property liable to seizure.” No law exempts them from seizure, and this is the only test imposed by the law-maker. State, etc. vs. Judge, 35 Ann. 737.

Under the definitions of the terms “good” and “solvent” given in the majority opinion, the motive of the Legislature in making the amendment of 1876 is sufficiently apparent.

Tho opinion says, “good” means “of ful] age, compos mentís, resident, qualified to serve, namely, competent to enter into the contract;” “solvent” moans “ able to pay fully his debts and liabilities, including the amount of the bond.”

Obviously, a man might, under these definitions, be good and solvent without possessing “property liable to seizure to the amount of the obligation.”

I am satisfied tho amendment was made with reference to the enlarged homestead exemption which had been granted by the act of 1865, under which a man might possess as much as $2000 worth of property without .owning a dollar, and yet be practically worthless as a surety, because his property would not be “liable to seizure.” Hence the necessity for and motive of the amendment.

The rule now adopted by the majority sots up the habitat of property as the tost of sufficiency, and practically makes the surety himself the arbiter of his own competency. If he desires to qualify, he has only, as he goes on the stand, to take his money or securities out of his pocket and hand them to a third person, and he is a good surety. If he wishes to be rejected, let him take his money and securities out of bank and put them in his pocket, and, presto, he is disqualified. What practical purpose is accomplished by such a rule 1 Though he place his property within reach of the sheriff on the day when he is called to qualify, he may put it in his pocket an hour afterwards and laugh defiance at the officer.

Indeed, whatever be the nature and amount of the property possessed by a surety, nothing prevents him from converting it into cash and pocketing it, to the discomfiture of legal process.

It is clear that the law-maker proceeded on the supposition that a man who is good for his debts and possesses “property liable to seizure” sufficient to pay them, will do so, and that he will not suffer his means to lie idle and profitless on his person in order to escape their payment.

“Straw bail” is proverbially odious; and if the Legislature desired to secure the absolute ultimate responsibility of judicial sureties, it might do so by requiring the possession of tangible property and securing- the bond by mortgage or lien thereon.

The rule now adopted does not improve the ultimate responsibility of sureties, and it imposes, in my view, a new qualification which the Legislature has not required.

I, therefore, dissent.

Pooi-ié, J. I concur in the dissenting opinion of Mr. Justice Fenner.

Rehearing refused.