author: LAND, J.

text:
    G. F. Connely v. R. M. Harrison & Co.
    A judgment creditor garnisheed a third person who had funds in his hands belonging to the defendant m execution ; but it appeared that prior to the commencement of the proceedings in garnishment, the judgment debtor had given an order to his attorney upon tho garnishee for all funds belonging to him in his hands ; that this order had been accepted ; and it further appeared that tho attorney was, upon the collection of the funds, to pay them over to the creditors of his principal, and that he had so informed the creditors. — Held: That the attorney to whom the order was given, being nothing moro than tho agent of the judgment debtor, the acceptance of that order by the garnisheo was merely an acknowledgment of a pre-existing obligation to pay to tho judgment debtor tho money in his hands ; that it created no obligation in favor of the creditors ; and that as the judgment debtor still had the money under his control, it was subject to attachment at the suit of a judgment creditor.
    The mere promise of a debtor to pay his creditor out of a particular fuud wlion collected, docs not operate a transfor of tho fund to the creditor, and vest in him a right of action for its recovery.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Mott & Fraser, for plaintiff and appelllant. J. Ad. lloziev, for defendants.
   LAND, J.

The plaintiff a judgment creditor of R. M. Harrison & Co., having an execution in the hands of the Sheriff, garnisheed under the statute John Culbertson, who, as receiver of the Merchants’ and Planters’ Insurance Company, had funds in his hands belonging to the defendants in execution.

The garnishee, in his answer to the interrogatories propounded by tlie plaintiff, stated that prior to the commencement of the proceedings in garnishment, R. M. Harrison & Co. had given to Edward Rawle, Esq., an order on him for all sums of money in his hands due to them, and that ho had accepted the same.

It appears that Edwad Rawle was the attorney at law of R. M. Harrison & Co., and that he received the order on the garnishee, with instructions to pay the money when collected to certain creditors of his clients, and that he communicated these facts to one of the creditors for whose benefit the order had been given, before the plaintiff acquired any right on the funds in the hands of the-receiver, by virtue of his garnishment.

The question to be determined upon the facts above stated is, whether tlie plaintiff, the attaching creditor of R. M. Harrison & Co., has a claim to the funds superior to that of the other creditors for whose benefit the order on the receiver was given.

The material and decisive fact of this case is, that Edward Rawle was not the creditor, but the mere agent or attorney of R. M. Harrison & Co. The legal consequence of this fact is, that the order on the receiver to pay Edward Rawle, was an order to pay the funds to R. M. Harrison & Co.; for in law, an order to pay to the agent is an order to pay to the principal. And as a further consequence of this fact, the acceptance of the order by the receiver was nothing more than a promise to pay the funds to R. M. Harrison & Co.

The maxim, qm fooit pier (ilium faeitper se, is of universal application in matters of agency, and determines the legal effect of the communication which Edward Rawle made to one of the creditors for whose advantage the order had been given. When the attorney said to his creditor, I have an order from my clients on certain funds in the hands of the receiver of the Merchants’ and Planters’ Insurance Company, and am instructed to pay your debt out of these funds when collected, his declaration was simply that of his clients. If Harrison & Co. had said to the receiver, we request you to pay to us our money in your hands, we intend paying it over to certain creditors, and the receiver had promised so to do, would such promise, communicated to the creditors by Harrison & Co., have created a cause of action in their favor against the receiver, and have divested Harrison & Co. of their control over the funds?

Such a promise would certainly not create any right of action in favor of the creditors against the receiver, for the promise was not made to them, but to Harrison & Co., and was only the acknowledgment of a preexisting-obligation to pay tq them the money in his hands. As the promise created no new obligation in favor of Harrison & Co., and as it created no obligation at all in favor of the creditors, the receiver was still bound, at. the date of the garnishment, to pay the money to Harrison & Co; and as they still had the money under their control, it was subject to attachment at the suit of the plaintiff under his execution.

The mere promise of a debtor to pay his creditor out of a particular fund when collected, does not operate a transfer of the fund to the creditor, and vest in him a right of action for its recovery; for otherwise, the debt-would be extinguished by such promise, and the fund would bo at the risk of the creditor, contrary to the rules of law, and perhaps the intent of the parties.

The plaintiff’s garnishment can only be defeated by showing a valid transfer of the funds in the hands of the receiver prior to its date, — which the order to Edward Rawle, the attorney of Harrison & Co., fails to do.

It appears from the record, that the garnishee paid the money in his hands to the Sheriff, under an order of court, to abide the event of the litigation involving the conflicting claims of the creditors of Harrison & Co.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff’s right to the funds placed by the garnishee in the hands of the Sheriff, to an amount sufficient to satisfy his judgment against R. M. Harrison & Co., together with interest and cost, be recognized and enforced as against the parties to this suit, with costs in both courts.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Carl Moller v. John Gauche.
    Where the charge of the District Judge to the jury is suchas to mislead the jury upon the facts, the verdict will ho set aside, and such judgment rendered on the appeal as the evidence justifies.
    Appeal from the Eiftli District Court of New Orleans, JSggleston, J., presiding.

      Wcvples (&JSustis, for plaintiff. Q. Schmidt, for defendant and appellant.
   Buchanan, J.

In tlie year 1856, plaintiff entered into a written contract with defendant to paint and glaze defendant’s house for a certain sum. After the work was partly completed, plaintiff refused to continue, and abandoned the work', on the ground that the price stipulated was too small; whereupon it was agreed between the parties, that defendant should pay plaintiff by the day, as well as the other workmen employed upon the work by plaintiff. This was done. Plaintiff and the other workmen were paid two dollars .and a half a day each. The payments were made every Saturday night. Plaintiff also paid for all the materials used in the work.

Plaintiff now sues for compensation, as upon a quantum meruit

Defendant pleads the two contracts above mentioned, and that he has fulfilled the same on his part. He denies indebtedness to plaintiff, and alleges that plaintiff has caused him damage by his delays in performing the work.

The first contract alleged by defendant is proved by written and parol evidence.

Its abandonment by plaintiff, and the substitution therefor of a contract for daily wages, are facts proved by three witnesses introduced by defendant, Jung, Chance and Conner. Their testimony is corroborated by the production in evidence of many receipts for day’s wages, signed by plaintiff. From these receipts, it appears that plaintiff and the other painters employed on this work were paid by defendant -weeldy, at the rate of two dollars and a half per day each.

In opposition to this ■ evidence, plaintiff relies upon the testimony of Adolphe Conrad, one of the painters employed in the work, to let in proof of a quantum meruit.

Conrad testifies, in substance, that when plaintiff had abandoned the work, defendant offered him two dollars and a half a day wages, to continue; but that plaintiff refused this offer. “ Gauche then told him to go on, and finish the work, and he ivouldgpay what was right.”

The Judge charged the jury (thirdly) “that notwithstanding either contract, if the jury believe that Gauche promised to pay the value of the work, and that that promise was designed to make plaintiff improve the work, that defendant is bound for the value of the same. ”

Defendant excepted to this charge on the grounds: 1st, that it was not law applicable to the case; and 2d, because it encroached on the province of the jury, and instructed them in relation to facts which it was their duty to determine.

We think these objections were well taken. The second point of the Judge’s charge to the jury had assumed (what is indeed proved) that the original contract between these parties for a fixed price to be paid for the work, had been replaced by another contract for day’s wages. That sec-0nd contract, by which Moller, tlie plaintiff, was reduced to the position of a day laborer, working upon this job with other day laborers, and for the same wages as them, in the service of Gauche, the defendant, is inconsistent with a right on the part of Moller to a quantum meruit compensation for the work thus executed by himself and his fellow workmen.

Again, the charge excepted to, misled the jury upon the facts. The witness Conrad does not swear that Moller was to receive day’s wages, in common with the other workmen, and, in addition thereto, the value of the work when done, according to the estimation of experts, byway of stimulus to extra exertion, and reward for superior execution of the work. On the contrary, plaintiff’s witness disproves the second contract in tolo. He says that Moller rejected Gauche’s proposition to pay him by day’s wages. If this witness’s testimony prevails, there was no such second contract between the parties, as the Judge’s second and third charges assume.

We are of opinion that the defendant has substantiated by proof his defence to this action.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the verdict of the jury be reversed, and that the plaintiff’s demand be rejected at his costs in both courts.


author: Mebbick, C. J.

text:
    John M. Bach v. Syndic of Miller.
    Where there is an exclusion of warranty in an act of sale, the vendee, on eviction, can only recover, besides costs, the price which he paid, which will bear interest'from the date of the eviction.
    Where a party is cited in warranty, and he neglects to call in his warrantor, in a separate action, he can only recover from his warrantor the costs of the former suit up to the date of the citation.
    Where tiie creditors of an insolvent have been enriched by an unauthorized act of the syndic, the successor in office of such syndic may be compelled to refund the amount.
    Appeal from the Fifth District Court of New Orleans, Dnvigneaud, J., presiding.

      Whittaker c6 Fellows, and H. H. Taylor, for plaintiff. IT. Tí. Strawhridge and 11. D. Ogden, for defendant and appellant.
   Mebbick, C. J.

This is an action in warranty. The facts are correctly stated in defendant’s brief as follows, viz:

“ On the 9th of May, 1833, by act before Caire, notary public, John E. Miller and John H. Holland purchased in common two lots of ground, Nos. 9 (otherwise and more properly called No. 10,) and 4, in square 08 of Eanxbourg Annunciation, — lot No. 10 having 00 feet front on Pryta-nee street, by 120 deep, French measure.”
“Miller and Holland both became insolvent about 1840, and cessions of their property ensued,”
‘ ‘ Miller’s interest in the two lots figures on his schedide as ‘ the undivided half of two lots of ground on Prytanee street, value $2,000.”
“In January, 1847, Wm, Turner and John F. Miller, as syndics of the latter’s estate, presented to the court having cognizance of the insolvency a petition for authority ‘to sell and dispose of the right and title of John F. Miller to the undivided half of two lots of ground situated on Prytanee street, known as Nos. 8. and 9 of square 68, in the Fauxbourg Annunciation, in Municipality No. 2, of the City of New Orleans.’ On the 27th of the same month an order was given accordingly.”
“ It does not appear by vliat description the property was advertised; but, by an act of sale of 17th April, 1849, before Chiapella, purporting to be in pursuance of a public adjudication made at a sale effected on the 4th March previous, i», obedience to the order of court of %7th Jamuary, 1847, the two syndics conveyed to John M. Bach, without any guarantee whatever, all that piece or lot of ground situate in the suburb Laeourse, above this city, and being designated by the No. 9 of square or ilet No. G8, said lot of ground measuring 60 feet front on Rrytanee Walk, by 120 in depth.”
“ The syndics, therefore, sold more than they had petitioned or been authorized to sell by court, and more than really belonged to their insolvent. Instead of his ‘ right and title ’ to an undivided half, they sold the lot itself, and the whole lot, but without any warranty. The price was §1,500, to remain deposited in the Notary’s hands until the mortgages on tlie property should be cancelled.”

Bach divided his purchase into two halves or lots, each of 30 feet front on Prytanee Walk, by 120 deep. The half next Prytanee street he sold to Josephs, and the half next Coliseum street he conveyed to Wray, who sold to Stinson, who sold to Jackson.”

The sale to Josephs was without warranty.

The syndic of Holland’s creditors brought suit to recover the undivided half of the two lots against the possessors, A. K. Josephs and Robert Jackson, and by consent, in order to avoid a partition, judgment was rendered for the one undivided half of the value of the lots, viz, .§1850. Mr. Bach having been called in warranty, judgment was rendered against him in favor of his immediate vendee, for the sum of §925.

Bach has brought this suit to recover of the syndic of John E. Miller’s creditors the amount he has thus been compelled to pay, and costs, and §200 attorney’s fees.

Judgment was rendered in favor of plaintiff for §1,125, with interest from the date of the first judgment.

Defendant appeals. He contends that the insolvent estate cannot be made responsible for the illegal acts of the former syndic; that Bach having faded to call his vendor in warranty, cannot recover costs of the former suit, or damages, nor anything more than the price, and that such price can bear interest only from judicial demand.

The judgment of the lower court is erroneous. There being an exclusion of warranty, the only amount the plaintiff can recover, besides costs, is the price which he paid, viz, §750. C. C. 2481, 5 An. 314. If the creditors have been enriched by the unauthorized act of the former syn-dic, there is no reason why the present syndic, their agent, should not refund the amount.

The sum due by the syndic, bore interest as a debt from the date of the eviction.

As it Respects the costs, the plaintiff is only entitled to recover those due up to the date of the service of citation in warranty on himself. Delacroix v. Cenas’ Heirs, 8 N. S. 356. How much those costs are, the record does not inform us.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now here ordered, adjudged and decreed, that the plaintiff do recover and have judgment against said Mills Judson, in his capacity of syndic of the creditors of the insolvent, John P. Miller, for the sum of seven hundred and fifty dollars, withfive per cent interest thereon from the 20th day of April, 1868, until paid; and it is further ordered, that plaintiff’s demand to recover costs paid by him in the case of James Ogilvie, syndic, v. Robert Jackson et al., be dismissed, as in case of nonsuit; and it is further ordered, that the defendant in his capacity pay the costs of the lower court, and that the plaintiff pay the costs of the appeal.


author: Dukeed, J.

text:
    Nimick, McClosky & Co. v. The Louisiana Tehuantepec Company.
    Vessels and steamboats employed in navigation in and out of the waters of the State, are, like other property, subject to the law of attachment for debts not yet duo.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Glarlce Bayne, for plaintiff. Hunton c6 Miller, for defendant and appellant.
   Dukeed, J.

The present contest is between two subsequent attacking creditors, the Merchants’ Bank of New Orleans and the Louisiana State Bank, and the case presents a single question of law for our determination, and that is whether a vessel employed in navigation, in and out of the waters ef the State, is liable to an attachment while the debt is not yet due.

The articles 242, 243 and 244 of the Code of Practice, as amended by the Act of 1826, p. 170, sec. 7, authorize, in general terms, the issuing- of the writ, whether the obligation be due or not.

It is however contended, that vessels and steamboats, which, from their nature. and destination, must necessarily be taken out of the State, can not, by a sound construction of the law on the subject, fall within the general rule, and that they are impliedly exempted from attachment, as long as the debt is not demandable; and'we are referred to the cases of Jkissel el al. v. Wilson, 18 La. 370, and W. H. Hogan v. <?. W. Garras, 12 An. 49.

The plaintiffs and defendants in those suits were all non-residents and stood in the relation of vendors and vendees of the steamboats attached to satisfy the unmatured obligations which had been given in part payment of the price; and as the contracts had for their immediate object vessels whose destination, in and out of any particular State, varies according to circumstances, it was rightly held, that the parties must have been aware, when contracting, that those .steamboats would, in all likelihood, run through different States, hence the exception.

It is true that the argumenta! part of those decisions takes a wider range; and we are now asked to adopt the same, in its most enlarged sense, by absolutely decreeing that a vessel can, in no case, be attached for a debt not yet due.

Were we to so declare, all exporting raw materials and goods generally, would likewise, by a parity of reason, be exempted; for example, cotton skipped by a Mississippi planter to New Orleans for sale, and Louisiana sugar in transit for a Western market, could not be reached by such a process; for it is well known by all creditors that cotton is seldom sold in the gin-house, and sugar on the cistern.

We understand tire exception to be, tliat ail contracts made with the owners and employees of vessels, knowing them to be such, and for debts chargeable to such vessels, cannot be enforced by the process of attachment before the maturity of the obligation.

The case at bar does not fall within the exception; for it is not in evidence that the attaching creditors, the Merchants’ Bank of New Orleans, contracted with the acceptors of the bills of exchange sued on, and defendants herein, Hargous Bros,, a commercial firm in the city of New York, in their character of owners of the property attached, the steamship Ooatzacoalcos. We will here add, as a further reason, that the Merchants’ Bank were, in some measure, forced to adopt this mode of proceeding for their own protection, as other creditors had already sequestered and attached the steamship for debts contracted by the Louisiana Tehuantepec Company, who were the apparent owners of the vessel.

The District Judge maintained the attachment, and ordered the Merchants’ Bank to be paid by preference over the opposing and subsequent attaching creditors, the Louisiana State Bank, out of the proceeds of the sale of the attached property.

Judgment affirmed, with costs.


text:
    J. Bruneau v J. B Haughton et al.
    Where the party who enjoins the execution of a judgment is the defendant in execution, the amount in dispute, and not the value of the property seized, determines the jurisdiction of the Supremo Court, and the appeal will be dismissed if the amount iu dispute is less than $300.
    Appeal from the Third District Court of New Orleans, Diuvigneaud, J. •

      J. II. & J. D. Holland, for plaintiff and appellant. J: A. BarileU, for defendant.
   Buchanan, J.

This is an injunction to, arrest the execution of two judgments rendered against plaintiff by a Justice of the Peace.

The aggregate amount of the two judgments is one hundred and eighty-five dollars. The groxmds of injunction are, nullities and illegalities in the xiroceecling's.

The value of the property seized under the executions enjoined (consisting of three mules and a wagon) is stated in the petition for injunction to be one thousand dollars; and the claim set forth in the petition is for the restitution of said property, and for five hundred dollars damages.

Judgment having been rendered by the District Court, dissolving the injunction, plaintiff appeals.

The appellees now move to dismiss the appeal, on the ground that the amount in dispute is less than three hundred dollars.

As the party who enjoins the execution is no other than the defendant in execution, the real amount in dispute must be considered to be the amount of the two judgments of the Justice of the Peace. Holland v. Duchamp, 12 An. 784.

It is, therefore, adjudged and decreed, that the rule be made absolute, and that this appeal be dismissed, at costs of appellant.


author: Duffel, J.

text:
    Peet, Simms & Co. v. G. S. Whitmore.—McKleroy & Bradford, Garnishees.
    The liability of a [garnishee in an attachment suit cannot extend beyond the amount of funds in his hands belonging to the defendant.

      Appeal from tlie Sixth District Court of New Orleans, Howell, J.

      T. J. cB A. G. Semmes, for plaintiffs and appellants. Hunt é Dene-gre, and GUm'lie S Bayne, for appehees.
   Duffel, J.

The plaintiffs seek to recover from the Sheriff of the parish of Orleans, the sum of $3,068 94, being the amount received by him from the garnishees, as representing the entire property in their hands belonging to the original defendant, G. S. Whitmore.

It appears that C. Tale Jr. & Co., first attaching creditors, took a rule on the garnishees, on Peet, Simms & Co., and others, to show cause why they should not be paid by preference; out of the property of the defendant attached in the hands of the garnishees. The rule was made absolute, and the garnishees were ordered “ to pay to C. Yale Jr. & Co., by privilege and preference over the other attaching creditors, the amount of the judgment rendered in this case. ”

The garnishees appealed, and urged in this court that, since the return of the writ of attachment, and pending the proceedings on the rule, they had paid over to the Sheriff all the funds of the defendant in their hands. But this court, considering that the payment to the Sheriff, after the return of the writ, and without an order of court, or consent of the parties, could not operate as a discharge to the garnishee, who, notwithstanding, remained, as before, responsible for the amount voluntarily confided by them to their agent, the Sheriff, affirmed the judgment. (See reported case, 15 An. 63). The judgment was accordingly satisfied out of the attached property, then in the hands of the Sheriff.

Peet, Simms & Co. now contend that the judgment of C. Yale Jr. & Co. on the rule, was personal against the garnishees, and should, therefore, have been satisfied out of their personal property, and that consequently the funds attached must be exclusively applied to the.payment of their claim. The District Judge thought otherwise, and ordered the payment of the balance of the funds remaining after deducting the amount paid to C. Yale Jr. & Co., as above stated.

It is not pretended that the garnishees are responsible to G. S. Whit-more in an amount exceeding $3,068 94; nor is it contended that they have, by their omission, or default, rendered themselves absolutely liable for the debts of Whitmore; and we are therefore at a loss to understand how the plaintiffs can urge their demand in law, still less in equity. The judgment of C. Yale Jr. & Co., on their rule, absolutely ordered the garnishees to pay their claim by privilege and preference over Hie attaching creditors, and they were so paid; and the present plaintiff's, who were parties to those proceedings, are bound by them.

Judgment affirmed.


author: Voorhies, J.

text:
    Harriet Waring et als. v. M. J. Zunts.
    A Sheriff sale of community property, under a judgment on an individual debt of the surviving spouse, does not divest tho undivided half-interest of the heirs of the deceased spouse.
    The right of the survivor in community to claim the usufruct of the deceased spouse’s interest in the community property is coupled with the obligation to furnish security in favor of the heirs.
    Where the property belonging to the community has been purchased at a Sheriff sale, under a judgment rendered on an individual debt of the surviving partner in community, the minor heirs of the deceased partner are entitled to a judgment in revendication, without any alternative or conditional allowance.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Hunton <& Miller, for plaintiffs. R. & H. Marr, for defendant and appellant.
   Voorhies, J.

This is a partition suit.

The plaintiff and intervenor set up title to an undivided half of a slave, which is in the defendant’s possession. The latter claims title to the slave by virtue of a Sheriff sale, in a suit against the former’s mother, Harriet Waring. The judgment in that case had been obtained on an individual debt of Mrs. Waring, and the slave in question was community property.

It is evident that, under such proceedings, the undivided half-interest of the heirs was not divested.

But the defendant contends that, inasmuch as the surviving widow in community was, by law, entitled to a usufruct during widowhood, the plaintiffs’ action does not yet accrue.

The right of the widow to claim the usufruct is coupled with the obligation to furnish security in favor of the heirs. It does not appear, nor is it alleged, that Mrs. Waring has taken any steps to comply with the law in this respect, nor that the defendant, her creditor, has even offered to do so in.her stead. The seizure and sale made by the Sheriff did not, in fact, point to the usufruct; and, without deciding that such usufruct could be legally levied upon, it is clear that, in the present instance, the adjudication did not vest the usufruct in the defendant.

The judgment of the District Court, after recognizing the plaintiffs’ claim and ordering the partition, condemned the defendant to pay the sum of five hundred dollars, in case the slave should not be produced. In this respect, the decree must be amended : the minor’s right in revendication cannot be divested in this manner.

It is, therefore, ordered, that the judgment of the District Court be amended, by striking out the conditional allowance of five hundred dollars; and that, in other respects, the judgment be affirmed; the appellees paying the costs of appeal.


author: Merrick, C. J.

text:
    Margaret Christensen, wife of, &c., v. Michael Stumpf.
    In order to constitute a married woman a public merchant, within the meaning of Art. 128 C. C., it is not merely necessary to show that her name has been used in conducting the business of a particular trade, but it must also appear that she has had some activo agency m the business which is thus conducted in her name.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      J. M. Dirrhammer, for plaintiff. A. Phillips, for defendant and appellant.
   Merrick, C. J.

The defendant, holding a note and mortgage against the plaintiff, a married woman, obtained an order of seizure and sale upon the same. She injoined, on the ground that the money did not inure to the benefit of her separate estate.

Judgment was rendered in her favor, and Stumpf appeals. He contends in this epurt that the money was employed in a commercial partnership between herself and one Shifferstein.

The Notary shows, that when she gave the mortgage upon her property, it was for the purpose, as she said, of paying off some pressing mortgages and debts.

The proof shows that it was employed in a business in which her husband, Christensen, and Shifferstein were engaged, and which was in fact conducted exclusively by them; and that she was not at the place of business more than twice during the existence of the partnership. One witness, however, says she agreed to the partnership. It further shows, that the bank account was kept by them in her name, and many, if not all of the transactions, were also conducted by Christensen or Shifferstein in her name also.

The proof is very far from showing that the money borrowed inured to thq benefit of the separate estate of the wife.

The only question, then, is : do the facts show that she was a public merchant, carrying on a separate trade, in the sense of Art. 128 of the Civil Code ?

The question must be answered in the negative. It is evident that her name was used merely for the benefit and protection of Christensen and Shifferstein, who, it appears, were insolvent.

She had no participation in the “ Western Produce búsiness ” (the subject of the partnership) which previously had been conducted by Shifferstein, the lessee of the store in the same place, further than the passive use of her name, and the carrying on a separate trade mentioned in the Article seems at least to imply some active agency of the married woman in the business which is conducted in her name. See also C. C. 1719.

Judgment affirmed.


author: Düffel, J.

text:
    Wm. R. Bell v. Lacy & Co.
    The rodhibitory action cannot bo maintaitfod where the latent defect or vice of character of the slave sold is brought home to the knowlege of tho purckasor, and the sale was made with a guarantee of title only.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Michel & Koontz, for plaintiff. J. Perera, for defendants and appellants.
   Düffel, J.

The plaintiff sues the defendants for the recovery of the price of a slave purchased by him from them, on the ground that the slave was, at the time of the purchase, addicted to the vice of running away, to the knowlege of the vendors, who fraudulently concealed the fact from him.

The evidence, however, contradicts the averment of the petition as to the concealment, and shows, on the contrary, that the vendee was informed of the vice before the sale; consequently, the slave was sold “ guaranteed in title only.”

The latent defect, or vice of character, having thus been brought home to the knowlege of the plaintiff, he cannot maintain his action. C. C. 2498; Hough v. Vickers, 6 An. 724; Phipps v. Berger, 12 An. 111; Hennen’s Digest, p. 1408, Nos. 14 and 19.

The District Judge was of a contrary opinion.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court a qua be avoided and reversed; .and it is further ordered, adjudged and decreed, that the demand of the plaintiff be rejected with costs in both courts.


text:
    S. H. Gilman v. Edward Pilsbury—D. Greig, Warrantor.
    The acceptor of a bill, when suod by tho payoo, has a right to call the drawoo of tho bill in warranty, in tho caso where tho drawee is requested to pay not unconditionally, but in accordance with a contract, and ho has been notified by the drawer because tho consideration of tho draft had failed.
    When cited in warranty by tho drawee, the drawer may plead the failure of consideration asa defence to the suit.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Bonford, Singleton & Clack, for plaintiff. Race & Foster, for defendants and appellants.
   Buchanan, J.

Duncan Greig drew upon Edward'Pilsbury, at V'ermillion-ville, August 3d, 1859, requesting the drawer to pay on the 1st March, 1860, agreeably to and in accordance with a contract to Mr. S. H. Gilman, the sum of three thousand dollars, with eight per cent, interest until maturity.

This bill was accepted by drawee, and suit was brought upon the same by payee against acceptor, on the 6th March, 1860.

The acceptor answers to the pleading, that he had been notified by the drawer of the bill, before its maturity, not to pay the bill, because the consideration 'of the same had failed : that he verily believed there was a good defense to the bill; and prayed that Greig might be called in warranty to defend .the suit. The District Judge, by written order, allowed the call in warranty. A citation in warranty was issued to Greig, who appeared and pleaded that the bill was given for a steam engine and sugar mill, to be furnished by plaintiff to.him, warrantor. That the engine and mill were furnished,but turned out tobe defective ; whereby warrantor lost a large portion of his crop of sugar. He denies plaintiff’s right to recover upon the draft, and claims damages in reconvention. Annexed to this answer is the contract referred to in the draft, and a bill of particulars of damages.

Pour days after the filing of the answer of warrantor, an order was granted on motion of his counsel for a commission to take testimony of witnesses in the parish of Lafayette, and thirty days allowed by the same order for return of commission.

The cause was called for trial the same day with this order for commission— the 9th April, 1860. Defendant and warrantor moved for a continuance, in order to procure evidence under the commission.

The continuance was opposed and refused by the court, on the ground that the acceptor of a hill, when sued by payee, had no right to call the drawer in warranty; that the warranty was irregular, and the drawer should have intervened, in order to present the defence relied upon herein. Defendant and warrantor excepted to this ruling, and appeal from the judgment rendered against the defendant.

The appellee relies in argument upon the case iii 4 N. S., 286 ; 2d Rob., 256 ; and 14th Annual, 409, as authorities for the doctrine that the acceptor of a a bill has no right to enquire into the consideration as between drawer and payee.'

These authorities are not applicable to the case at bar. In all those cases, the acceptor of the bill was the only party defendant before the court. In the present case, the drawer of the bill is made party defendant by order of court, and appears by answer and petition in reconvention filed.

It would seem that the form of appearance — as warrantor, and not as inter-venor — was regarded as irregular. The tenor of this bill, however, takes it out of the strict rules of negotiable paper, The drawee is requested to pay, not absolutely and unconditionally, but agreeably to and in accordance with a contract. This would be notice, even to a third holder, of the guarantees and-stipulations of payee contained in the contract, which was the consideration of the bill. And the plaintiff in this case is not a third holder or indorsee of the bill, but the payee himself. In the case of Smith v. Adams, 14th Annual, 409, quoted by couuscl of appellee, the court declined to decide (as unnecessary in that case), whether failure of consideration might not be pleaded by acceptor in a suit by the original parties to an unconditional bill.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the cause remanded for further proceedings according to law upon the pleadings of defendant and warrantor ; and that plaintiff and ap-pellee pay costs of this appeal.