text:
    R. R. Barrow v. John McDonald.
    An attachment will not lie in an action for damages eec delicto ; nor in an action for the settlement of a partnership before any liquidation of accounts, when, from the nature of the business, it is impossible that the plaintiff can swear with certainty to the amount that will be found due to him on a final settlement.
    Appeal from the District Court of Terrebonne, Oole, J.

      Goode & Aycoelc, for plaintiff and appellant.

      Beatty & Bush, for defendant.
   Lea, J.

The plaintiff’s claim against the defendant in this case is based upon two causes of action:

1st. A claim for damages for the malicious killing of a slave, which was owned by the plaintiff and the defendant in the proportion of three-fourths by the former and. one-fourth by the latter. These damages the plaintiff has assessed at $1500.

2d. A demand for an alleged balance due upon a settlement and liquidation of accounts growing out of the management by the defendant of a plantation owned bj' them in common, in the proportions above stated.

The defendant being a non-resident, this suit was instituted by the attachment of a judgment which the defendant had obtained against the plaintiff.

The defendant, by his counsel, moved that the attachment be dissolved on the grounds : 1st, that the causes of action are insufficient to maintain an attachment; 2d, that the judgment against Barrow could not be attached on an unliquidated claim for damages. Prom a judgment dismissing the attachment the plaintiff has appealed.

We consider the doctrine too well settled to be longer treated as an open question; that no attachment can be maintained in an action for damages ex delicto. See Irish v. Wright, 12 Rob. 563; 2 An. 943; 3 An. 376, 445; 4 An. 63.

We consider it equally well settled that no attachment will lie in an action for the settlement of a partnership before any liquidation of accounts where, from the nature of the business, it is impossible that the plaintiff can swear with certainty to the amount which will be found due to him on a final settlement. 2 An. 277; do. 154; 11 La. 581.

There is nothing in the nature of either of the demands upon which this action is based which would make them exceptions to the application of the principles above set forth.

Assuming that the defendant promised to pay three-fourths of the value of the slave, it does not appear that any price was agreed upon. Moreover, we think the District Judge was right in holding that this was a matter which entered into and constituted a part of'the partnership transactions. It was an act done in the course of his administration as a managing partner, and as such, could not he separated from the affairs of the partnership so as to make it the basis of an independent suit. It is urged in support of the attachment, that the business of the partnership was so limited and simple in its features, that the plaintiff could swear with reasonable' certainty to a precise balance. We can scarcely imagine any kind of partnership in which an estimate of the ultimate rights of the respective partners would be more purely conjectural, than in a partnership for the management of a sugar plantation.

We think the judgment setting aside the attachment should be affirmed, but we do not consider that a proper case is presented for the infliction of damages for a frivolous appeal.

Judgment affirmed.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Sarah Phipps, Executrix, v. John Berger.
    When, at a public sale, the Deputy Sheriff proclaimed the negro sold to be unsound, the redhibitory action cannot be maintained by the purchaser on account of any latent defects, and parol evidence is admissible to prove such declaration. O. O. 2498.
    APPEAL from the District Court of Terrebonne, Gole, J.

      A. Beatty, for plaintiff.

      Goode & AycoeJc, for defendant and appellant.
   Buchanan, J.

Defendant being sued on his three notes, given for the price of a slave purchased at probate sale, pleads that the slave was affected at the time of the sale with a chronic disease, which defendant is not able to describe, but which he was informed was brought on by eating dirt, the existence of which disease was fraudulently concealed by the executors at the time of the sale, and that the slave was rendered entirely useless by the said disease, which caused his death about six months after the sale.

The unsoundness of the slave Eemy when sold is not only proved but admitted. But it is proved by four witnesses, introduced by plaintiff, that he was proclaimed to be'unsound from the stand, to the bidders at the public sale, by the Deputy Sheriff who cried the property sold. This brings the case within Article 2498 of the Civil Code, which says: “Nor can the buyer institute the redhibitory action on account of the latent defects which the seller has declared to' him before or at the time of the sale.”

It is hardly necessary to notice the bills of exception to the parol evidence of these declarations, for the same Article of the Code expressly allows this sort of proof.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Nicholson Barnes v. J. S. Crandell et al
    Interest cannot be claimed on a judgment which does not bear interest on its face, and which was rendered when no general law was in force by which interest was superadded to it.
    APPEAL from the District Court of Madison, Farras', J.

      Bemis & Wallace, for plaintiff.

      A. Steel, for defendants and appellants.
   Spofford, J.

This is an injunction sued out against an execution of a judgment rendered against the plaintiff, as surety upon the dissolution of a former injunction.

The plaintiff’s pleadings and proofs, on the main grounds urged in discharge of his liability, are equally unsatisfactory. Conceding, what is far from being clear, that the agreement between Lewis and Downs was admissible under the vague allegations of the petition, the instrument fails to show a discharge of the principal debtor. There was only a promise to discharge him after certain conditions precedent should be performed, which are not shown to have been performed.

The loose plea of compensation is also untenable. Bm'nes was not debtor and creditor of Downes in the same quality, if indeed he was his creditor at all.

The plaintiff, therefore, cannot recover the sum of eighty dollars on the ground that he paid it in error to the defendant Steel.

But this sum should have been credited on the judgment, and the injunction is to be perpetuated for that amount.

And as the judgment bore no interest on its face, and no general law in force at the date of its rendition superadded interest to it, the injunction must be perpetuated against that part of the execution.

It is, therefore, ordered and decreed that the.judgment of the District Court be avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered and decreed that the injunction herein issued be made perpetual as to the interest called for by the writ of fi. fa. enjoined, and also for the sum of eighty dollars, which should be credited as having been paid to the defendant Steel on the 20th April, 1855; it is further ordered that in other respects the said injunction be dissolved, and the defendants allowed to proceed in execution against the plaintiff for the sum of three hundred and thirty-three dollars and costs; and it is further ordered and decreed that the defendant, A. T. Steel, recover of the plaintiff in injunction and his surety, Ralph S. Goons, m solido, interest upon the said sum of three hundred and thirty-three dollars, at the rate of eight per cent, per annum from the 14th Court to be paid by the defendant, Steel, and those in this court by the plaintiff and appellee. July, 1855, until this judgment becomes executory; the costs in the District


author: Merrick, C. J.

text:
    State ex rel., John G. Gaines v. The Judge of the Second District Court.
    A bill of exceptions should be taken or reserved at the time the ruling of the Judge in the matter complained of was made. If not then reserved, the Judge cannot be compelled on a subsequent day to sign a bill of exceptions.
    ON an application for a mandamus to the Second District Court of New Orleans, Morgan, J.

      Glorio & Bayne, for the relator.
   Merrick, C. J.

This is an application for a rule to show cause why a writ of mandamus should not issue to compel the Judge of the Second District Court of New Orleans to sign a bill of exceptions.

The relator is the testamentary executor of Simeon V. Sicloles, deceased. In his capacity of executor, he made an application for an inventory which the Judge, after considering for some time, granted, but at the same time entered therewith an order appointing an attorney and counsellor-at-law to represent the absent heirs; that so soon as advised of the entry of the order and the ear of the court could be obtained in order to show his dissent from that portion of the decree, he tendered the Judge a bill of exceptions for signature, wherein he stated that the appointment was made without any prayer to that effect by petitioner, and that he excepted to the same as unnecessary, there being no heirs absent and unrepresented, the will instituting the city of New Orleans as heir, and that the court overruled the exception, and that thereupon the counsel tendered his said bill of exceptions to be signed.

The object of a bill of exceptions is to place on the record and make part thereof something which was done under the order of the court, during- the progress of the cause, which would not otherwise appear, in order that the question of law arising from the ruling of the Judge, in the matter excepted to, may be reviewed by the appellate court. It should be taken or reserved at the time the act objected to occurs. If not then reserved, the Judge cannot be compelled to sign a bill of exceptions at a subsequent day.

If the Judge of the lower court had seen-fit to embody in a bill of exceptions what occurred before him when the party was first advised of the order, such as a motion to set it aside and his refusal or the like, it would not have been improper; but in the hill tendered, it seems to us something more is stated than the Judge was bound to admit (viz), that the executor excepted to the appointment as unnecessary, &c., which would imply that the objection was made at the time of the appointment of the attorney for the absent heirs.

From the showing of the relator, we are satisfied that the record, as it now stands, declares truly what occurred at the date of the entry complained of. As no objection was made at the time of the entry of the order, the Judge cannot be called upon now to sign a bill of exceptions which implies contrary to the fact that an objection was made to the order at the time it was entered.

The application for the rule is dismissed at the costs of the applicant.


author: Lea, J. Buchanan, J.

text:
    W. L. Knox v. W. L. Thompson.
    When a motion is made to take the answers of parties to interrogatories for confessed, on the ground of their being evasive, the court must act on the motion, it cannot be referred to the jury to determine on the merits of the cause.
    It is only when there has been an actual delivery of immovables or slaves sold that the law receive^ as evidence of the sale the confession of the party when interrogated on oath. O. O. 2255, Parol evidence cannot be received to contradict the answers.
    Where a party who has been put upon oath gives all the facts of the case which are necessary to the determination of the question propounded to him, he has complied with the law, and he is not bound nor permitted to answer questions of law based upon those facts.
    Where, from the relation of the parties, as deduced from the answers to interrogatories, it is manifest that although both parties expected that the preliminary arrangements for a sale would be carried out, yet neither of them considered a sale had been concluded unaccompanied with conditions, a sale is not established. Damages incident to the institution of a suit for the recovery of any civil right cannot, as a general rule, be recovered upon a demand in reconvention.
    Appeal from the District Court of Carroll, Fa/rra/r, J.

      M Sparrow and Short & Parham, for plaintiff.

      A. B. Oaldwell and Benjamin, Bradford & Finney, for defendant and appellant.
   Lea, J.

This suit is brought for the recovery of damages incident to a breach of an alleged contract of sale. It is true the plaintiff asks that the defendant be ordered to execute an act of sale, and asks damages only in the event of his failure to comply with a specific performance of his alleged contract, but the evidence shows that the defendant had sold the property which is the subject matter of contestation to third persons before the institution of this suit.

The plaintiff alleges that he entered into a contract of sale with the defendant, by which the latter agreed to sell to him the undivided half of a plantation, with one hundred and fifteen slaves, together with the mules, cattle, corn, &c., belonging to the place, for the price of $78,225, payable upon the terms set forth in the petition; but that, although he has been ready to comply with his part of the contract, as stipulated, the defendant has refused to pass the act of sale, as he was bound to do. The plaintiff alleges that, by reason of this refusal, he has sustained damages in the sum of $10,000, for which sum he claims judgment on the alternative of the failure of the defendant to pass the act of sale, as above stated.

Interrogatories were annexed to the petition, which the defendant was called upon to answer under oath. The plaintiff, considering the answers of the defendant unsatisfactory and evasive, moved the court that the interrogatories be taken for confessed. The court did not act definitively upon this motion, but referred the matters in the motion set forth to be determined upon the merits. The case was tried by a jury, who found a verdict in favor of the plaintiff for the sum of $8000. From a judgment rendered in accordance with this verdict the defendant has appealed.

We think the court erred in not acting upon the motion to take'the defendant’s answers for confessed. It was the exclusive province of the court to determine what evidence should go to the jury. As the case was presented to them, they were called upon to determine the question whether the answers of the defendant were or were not in evidence, and whether the interrogatories were or were not to.be taken for confessed. Upon the sufficiency and effect of these answers the case must, in our opinion, be decided. No parol evidence could be introduced to contradict these answers.

The policy of the law extends a special protection to the titles by which immovable property and slaves are held. It does not permit them to be invalidated or attacked by parol evidence, and though it is permitted to one of the parties to a verbal sale of real property to probe the conscience of the other by calling upon him to answer interrogatories; even this can only be done when there has been an actual delivery of the immovable property or slaves sold. C. O. 2255.

We have but two questions, therefore, to settle in this case:

3 st. Are the answers evasive or unsatisfactory ?

2d. If not, do they establish a sale from the defendant to the plaintiff?

The defendant, on being asked whether he did not sell to the plaintiff the undivided half of the property described in the petition upon the terms therein set forth, and whether the said Knox did not agree to comply with said terms, answers “that he did not sell and deliver the property described in the petition.” If the answer had gone no further, it probably should be considered ■evasive, but to avoid all misapprehension, the defendant made a full statement of all the facts connected with the transaction, which, so far from being evasive, is unusually minute and specific, and appears to us to indicate good faith on the part of the respondent.

When a party who has been put upon oath gives all the facts of the case which are necessary to the determination of the question propounded, he has ■complied with all that the policy of the law requires. He is not bound, nor indeed would he be permitted by his answer to settle questions of law based upon the facts.

Whether the facts set forth in the defendant’s answer constitute a sale is a question of law, which the plaintiff himself would not be willing to submit to the opinion of the defendant. In stating the facts of the case, therefore, the defendant has done all that the law requires of him.

The defendant answers that the plaintiff represented to him that he was a man of means and credit, familiar with the business of planting, and that, therefore, with a view to the establishment of a partnership between them, he was induced “to entertain a proposition from said Knox to become a partner in his, respondent’s plantation. Ho, the said Knox, -proposing to live on the said plantation all the year and manage the affairs of the same as a perma/nent partner, and that he did accordingly verbally agree on the basis or preliminaries of a sale or partnership in one-half of respondent’s plantation,”- &c. That after said vei'bal agreement, he requested the said Knox to enter into writings with him previous to his departure for Now Orleans, “and thereby complete amd close the agreement, which said Knox declined to do.”

Respondent avers that befere the sale was completed he ascertained to his great astonishment that Knox was worth nothing; that his wife had obtained a separation in property from him; that no debt due by him could be collected, and that he was not only without means but without credit; that under these circumstances he sent the plaintiff a written notice that his proposal for a purchase did not suit him and that ho therefore declined his offer.

We deem it unnecessary to transcribe the whole of the defendant’s answer, nor do we think it is necessary to consider the question of bad faith on the part of the plaintiff, as displayed in the answers.

The only question which we consider it essential to determine is whether, from the scope of the answers themselves, it appears that the defendant had irrevocably bound himself by a contract of sale.

If we are to consult the intentions of the parties, as deduced from the answers, we think it manifest, that although both parties expected that the preliminary arrangements would be carried out, neither of them considered that a sale had been concluded, unaccompanied with conditions or reservations having reference to the management of the place. This conclusion relieves us from the necessity of examining the other questions presented in the record.

' There is no legal ground for the demand in reconvention in this case. Damages incident to the institution of a suit for the recovery of any civil right cannot, as a general rule, be recovered upon a demand in reconvention.

It is ordered, that the judgment appealed from be reversed; that upon the plaintiff’s demand there be judgment for the defendant, and that the demand in reconvention be rejected. It is further ordered, that the plaintiff pay costs in both courts.

Buchanan, J.

In addition to the remarks of Mr. Justice Lea as the organ of the court, in which I entirely concur, I would add that, in my opinion, the proof of a sale of immovables or slaves by interrogatories, under Article 2265 of the Civil Code, is only admissible for the purposes of perfecting the title in the vendee or of recovering the price by the vendor, in cases where actual delivery has been made of the immovables or slaves sold verbally. Erom the words of the Article, it cannot have been intended as a means of recovering damages from the vendor for a refusal to deliver. The Article requires that actual delivery should have been made.


author: BucnANAN, J. Buchanan, J.

text:
    Succession of William Regan.
    The claim of the appellant, for interest upon her judgment against the estate as heir of her father, was rejected on the ground that the judgment carried no interest on its face.
    A suit brought against the husband on notes due by the community, interrupts prescription as to the heirs of his deceased wife. C. O. 8517.
    As a general rule it is too late, after the evidence has been closed and the argument commenced, to allow new issues of fact to be made. The plea of payment, however, is highly favored. Courts always lean to the correction of an error that works injustice, and the strict rules of practice may with more propriety be relaxed, when the parties litigant are not the original contracting parties. The rule relaxed under the facts of this case.
    APPEAL from the Eourtli District Court of New Orleans, Reynolds, J.

      J. Dunlap, for Mrs. Fanny Gutter, appellant. Thomas Gilmore and Ben-ya/nm, Bradford, & Finney, for Mrs. Regam, Admirmtratvw, also appellant. Gha/i'lesDe-Choiseul and Thomas A. Olorice, of assignee for Kohn, Darron & Go., appellees.
   BucnANAN, J.

Two appeals are before us from the judgment of the District Court, rendered on the 9th of November, 1855, upon an account of administra^ tion of this estate; 1st, that of Mrs. Fammy Outterr, and 2d, that of the administratrix.

So far as Mrs. Gutter is concerned, the judgment appealed from is the supplement of that rendered by this court at the May term of 1854 See 9 Ann. 364. By our decree in that case, the rights of Mrs. Cutter as heir of her mother were reserved.

The Judge of the District Court has now fixed the amount of those rights •at $1,978 33, and the calculation by which he has arrived at that result seems to follow the evidence. The data for the ascertainment of the amount of the community of Reg an and his first wife, are necessarily vague and uncertain. But this vagueness is not the fault of the appellant. It is owing to the neglect of her stepfather, the survivor of the community, to take the proper and legal steps for settling the community; and the appellant ought not to be made responsible for such neglect. Mrs. Cutter's claim of interest upon her judgment against the estate of Regan, as heir of her father, was properly rejected. That judgment carried no interest on its face. See Saunders v. Taylor, 7 N. S. 41.

Mrs. Cutter complains that the syndics of Miller and the assignee of Kohn, Da/ron & Co., who are judgment creditors of William Regan, are improperly preferred to her, because, she argues, the community between her mother and William Regan was dissolved by the death of the former before the debts accrued upon which the said judgments were founded. Mrs. Cutter's mother died in January or February, 1843. The judgment of the syndics of Miller against Regan was rendered on the 20th of December, 1842.

The judgments in favor of Kohn, Damon & Co.’s assignees, arc three in number, and were all rendered after Mrs. Regards death; but of the promissory notes upon which those judgments were founded, the following were executed during- the community:

Six notes of $460 each, dated 1st November, 1842 ; total due by community $2,760. Two other notes, respectively $468 50 and $466 28, were dated 25th March, 1843, consequently after Mrs. Regards death. Total of notes due by Regan alone $934 78.

A payment of $1,802 12 was made on the aggregate claims of Kohn, Dan'on & Co., by the sureties of a former administratrix, on the 31st July, 1854; which is imputable, pro rata, to those notes due by the community, and to those due by Regam, individually.

The appellant pleads prescription of ten years against those claims of Miller and Kohn, Daron & Co. ; but we think that plea cannot avail her. The suits brought against Regan in 1843 and 1844 upon those notes barred prescription as to the heir of his deceased wife. O. O. 3517.

We now proceed to the appeal of the window Regan, administratrix. This appellant attempts to revive the question of the marriage of Regan and the mother of Mrs. Cutter. But this question must be considered as settled by our decision in 9th Annual. She also excepts to a decision of the District Judge refusing her permission to plead on the argument of the cause and after the evidence was closed, that the claim presented by the assignee of Kohn, Daron S Co. does not really belong to said assignee, but had been transferred to another party, with whom William Regan, in his lifetime, compromised and settled it.

The Judge did not err. The plea presented on the 18th July, 1855, declares that the appellant had discovered the facts therein set forth, on the 7th of the same month, or six days previously to her calling them to the notice of the court. It is obvious what confusion would be introduced into the trial of causes if such a practice were tolerated, as to allow new issues of fact to be thus kept in reserve until after the evidence was closed and the argument had commenced. Such new issue, if entertained, would require new evidence to substantiate the affirmative; and the opposite party couid not, of course, be refused the right of producing' evidence to rebut. The case might be different were the fact pleaded, one which had just come to the knowledge of the party pleading it.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, bjr giving to the assignee of Kohn, Daron & Oo. a preference over Mrs. Gutter, in the distribution of the assets under this account of administration, only for the following notes, with interest, till paid, and costs, viz: two notes, $460 each, interest from 4th of May, 1843 ; two notes, $460 each, interest from 4th of August,’ 1843 ; two notes, $460 each, interest from 4th November, 1843 — subject to a credit of $1,346 paid on the 31st of July, 1854; that the two notes of William Regan of $466 28 and $468 50, with interest and costs upon the same, held by the assignee of Kohn, Daron & Go., be postponed in rank of distribution of those assets to Mrs. Gutter's claim, as allowed by the judgment appealed from ; and that in all other respects the said judgment be affirmed; the costs of the court below to be paid by the succession, those of the appeal of Mrs. Gutter by the appellees, and those of the appeal of Widow Regan, administratrix, by the said appellant.

SAME CASE ON A RE-HEARING.

Buchanan, J.

The claim of Miller's syndic, allowed by the judgment of the District Court, is for the amount of a judgment against Regan, rendered the 20th of December. But it was proved on the trial of the oppositions to the account of administration in the court below, that the said judgment had been fully paid in the hands of Miller's syndics, on the 29th of April, 1843, by one Brind/y, with funds furnished by William Regan, the judgment debtor. This claim should, consequently, be rejected.

The administratrix offered a plea of payment against the claim of Kohn, Daron S Go.’s assignee, on the same day (July 18th, 1855) that she offered a similar plea against the syndic of Miller ; and offered at the same time evidence to sustain the plea. But the assignee of Kohn, Daron & Go. having objected, the court ruled out the plea of payment and the evidence in support of the same, on the ground that the evidence was closed and the argument commenced.

The plea of payment alleges, that the facts set forth in said plea had been discovered by the administratrix for the first time on the 7th of July, 1855. In our decision heretofore pronounced, we considered that this interval of six days, between the discovery of the fact of payment and its being brought to the notice of the court, excluded the party from the right of interrupting the argument of the cause, in order to place a new issue before the court.

In his petition for a re-hearing, the counsel of the administratrix has brought to our attention from the record, that on the 7th of July, the day of the alleged discovery, the cause had been on trial for many days, and had been continued over for want of time, from the 6th of July to the 10th of July ; on which day (without anything being done) it was continued over until the 13th of July, and that it was not finally submitted to the court until the 14th of July.

A review of these proceedings inclines us to doubt the correctness of our first impression, that the administratrix had been remiss in bringing the fact of payment to the notice of the court as soon as practicable after its discovery. The plea of payment is highly favored in our practice; and the length of time that elapsed between the rendition of the Kolm, Demon & Go. judgments and the death of the judgment debtor, without those judgments having been pressed, is a circumstance, as the counsel of the administratrix argues, that may he explained by the evidence offered at this late hour. The argument on the other side is, that the judgments have been admitted in various accounts of administration, as valid claims against William BegaKs succession. So was Miller’s judgment; yet the proof of the satisfaction of that judgment, under the plea filed (without objection) at an equally late day, is perfectly conclusive. Courts always lean to the correction of an error that works injustice ; and the strict rules of practice may, with more propriety be relaxed, where the parties litigant are not the original contracting parties. This cause abounds with incidents out of the ordinary line of events. It would seem that it was Began! s policy, about the time of the judgments in question, to appear more in debt than he really was. And it is not at all surprising, that his widow and the female children of his first wife, should have been ignorant of the true state of his affairs, and should have taken for granted that claims avouched by judgments, were valid subsisting debts of the succession of their husband and father. The party who is urging the claim of Kolm, Daron & Go., is also acting in a representative capacity, and may well be supposed ignorant of the facts, which are the subject of this rejected plea.

We think the ends of justice require that the administratrix have an opportunity of establishing the defence thus offered by her. ,

The judgment heretofore rendered by this court upon these two appeals, is therefore avoided and annulled; and it is now adjudged and decreed, that the judgment of the District Court, so far as relates to the claim of Mrs. Fanny Gutter, be affirmed; that as regards the syndic of John F. Miller and the assignee of Kolm, DcmonS Oo., the judgment appealed from be reversed; that upon the claim of Miller's syndic, there be judgment in favor of the succession of Began, and against the syndic of Millw'; that as regards the claim of the assignee of Kolm, Dem'am S Go. the cause be remanded, with instructions to the District Court to allow the administratrix to file the answer and plea by her tendered on the 13th July, 1855, and in other things to be proceeded in according to law; and that the costs of appeal be paid by the appellees, the syndic of Miller, and the assignee of Kohn, Da/ron & Go.


author: Lea, J.

text:
    Lafourche and Terrebonne Navigation Co. v. John Collins.
    Where the mandatary has made no agreement for a compensation for his services, and it cannot be inferred, either from the nature of the employment or the relation of the parties, that it was in contemplation of both parties that the mandatary should receive compensation for his services— it is a case of a gratuitous procuration, and the mandatary is not entitled to compensation. O. O. 2960.
    APPEAL from the District Court of the parish of Lafoureh, Gole, J.

      Beatty S Bush, for plaintiff. Connelly & Bighter, and Clifford Beleher, for defendants.
    Both parties appellants.
   Lea, J.

This suit is brought to recover from the defendant the sum of $30,000, being an alleged balance due by said defendant for moneys received by him as the mandatary and treasurer of the plaintiff, of which moneys he has refused to render an account.

The defendant avers that on or about the 26th March, 1848, he was appointed by the said company their general agent for the receiving and forwarding of freight and the transaction of its other business in general, without any agreement as to the rate of compensation for his services ; that since that time he has devoted much time and labor to the concerns of said company, which services are worth $2000 per annum. Defendant moreover avers that he has paid and expended for the benefit of said company sums amounting in all to $60,000, for which amount, together with his compensation for the services above mentioned, he claims judgment in reconvention. The defendant rendered an account, which was examined by an auditor whose report was homologated without opposition, the auditor having declined to pass any opinion upon the correctness of the defendant’s claim for remuneration for services.

The balance reported by the auditor to be due to the plaintiff by the defendant, viz : $5479 45, was adopted as the basis of the judgment of the court, and upon the reconventional demand the court allowed the sum of $4200, as a compensation for the services referred to in the petition. Both parties have appealed, the defendant averring that the amount allowed is an inadequate compensation, and the plaintiff contending that the defendant is entitled to no compensation whatever. No other question is presented on the appeal except that having reference to the claim for compensation. The District Judge has made a careful analysis of the testimony having reference to the value of the services of the defendant, and has fixed their value at $700 per annum, and if the case were one in which any compensation should be allowed, we would consider this as probably a just valuation. On the other hand, we are relieved by the pleadings themselves from all difficulty in determining the nature of the contract, out of which this litigation arises. The defendant in his answer avers that he was appointed the genei'al agent of the company for the receiving and forwarding of freights and the transaction of other business in general “without crn/y agreement as to the rate of compensation for his services.” The relation of the defendant to the plainiiff was, therefore, that of a mandatary who has made no agreement for a compensation for his services; a case coming within the application of the 2960th Article of the Civil Code, which says that “ the procuration is gratuitous unless there has been a contrary agreement.” Though this language is comprehensive and almost positive in its terms, many cases have been recognized in our jurisprudence as constituting exceptions to the rule; such, for instance, as those in which the services of the mandatary are rendered in the course of an employment or profession where it is customary to make charges for such services; thus, lawyers, brokers, commission merchants, land agents, &c., though mandataries, are not presumed, even in the absence of any special agreement for compensation, to render their service gratuitously. It has even been held also, and we think correctly, that where the relations of the principal and agent were such as to justify the conclusion that there was an understanding between them that the services should be remunerated, the mandatary might recover the value of his services. It was upon this doctrine exclusively that the decision in the matter of Fowler's Succession was placed. The language of the court in referring- to this point is as follows: But we do firmly believe from their relations and the evidence that the one intended and the other expected that, if their relations terminated, a very liberal reward would be made for those servicessee 7 An. 211 : in other words, a contract is presumed or inferred from the nature of the employment and the relation of the parties.

But, can any such implied contract be inferred in the case at bar, either from the nature of the employment or the relation of the parties ? The character of the employment was that of a general superintendent of the affairs of a company of which the defendant was a corporator and a director. It is not shown that it is customary to pay agents of this kind, and from almost all the facts of the case, as disclosed by the evidence, we should infer that a direct pecuniary remuneration was not intended or expected by either of the parties.

To none of those employed in the service of the company, not even to his own partners, did the defendant over intimate any expectation of compensation. Witnesses well acquainted with the affairs of the defendant state, that the relation of the defendant to the company, as their general agent, was attended with advantages in his business which might of themselves be considered a sufficient compensation. Again, the defendant himself, who had no motive to withold any claim against the company, as was the case with the curator of Fowler's Succession, does not appear to have made any charge against the company on his own books, or on those of the company; and yet he was six years in their employ without ever asserting a claim to any compensation for services which he alleges were worth $2000 per annum.

Upon the whole, we see nothing in the evidence which would justify us in inferring from the relations of the parties, that there was an understanding between them that the defendant should be paid for acting as the general agent of the company.

The case at bar has no relation or analogy with one in which a claim upon a contract for services or labor is made, as upon a quantum meruit; in such case the contract for compensation is the basis of the action, and there exists no presumption of law in reference to such a contract, as in the case of mandate, that the services are gratuitous ; neither is the defendant’s claim analagous to the demand of a negotiorum gestor for a reimbursement of all necessary expenses made by him on account of another, for the management or preservation of his property. If the Article of the Code is to be so construed as to have any practical application, it is evident that a mandatary seeking compensation for services rendered in his capacity as such, must bring his claim within the scope of some exception to the general rule that the contract is gratuitous, and must show that his demand is made under circumstances from which it must be inferred that compensation for his services was in contemplation of Tooth parties at the time the mandate was conferred.

It is ordered that the judgment appealed from be reversed, and that the plaintiff, the Lafourche and Terrebonne Navigation Company, do have and recover of the defendant, John Gollins, the sum of $5179 45, with interest thereon at the rate of five per cent, per annum, from judicial demand till paid, and costs of suit, and that the costs of the auditor be taxed at $150. It is further ordered that the demand in reconvention set up by the defendant be rejected, and the costs of this appeal be paid by the defendant Gollins.


text:
    Fernando Aguilar v. Lucien Bourgeois.
    The mere designation of the Recorder’s office, as the place where the note is to be paid, does not authorize the payment of it to the Recorder himself.
    Without a special authority to the Recorder to collect it, the money left with him is to be considered a deposit and at the risk of the depositor. The fact that the creditor endeavored to collect from the Recorder the money which had thus been deposited for him does not imply that he considered the deposit as a payment, nor bar his recovery from the debtor.
    APPEAL from the District Court of Terrebonne, Gole, J.

      Goode & Ay took, for plaintiff and appellant.

      Gonnelhj & Bightor, for defendant.
   Lea, J.

This is an action on two promissory notes drawn hy the defendant, which were given as the price of a tract of land sold by the plaintiff to the defendant on the 23d of October, 1854. One of these notes, viz: the one for $400 was made payable in all March, 1855, and the other for $225 was made payable in all March, 1856.

By a clause in the act of sale, it was expressly stipulated “that the note for $400 was to remain deposited in the office of the Recorder of the parish of Terrebonne, until such time as the said vendor will cause to be cancelled certain judicial mortgages existing against him, and when he shall have complied with all the above conditions and agreements, then the said note shall be retywmed to him?'

The plaintiff avers that the mortgages referred to in the stipulation above referred to have been erased, and that he has obtained possession of the above described note, upon which he now brings suit.

It is needless to recapitulate all the matters set up in defence to the plaintiff’s action; the only matter at issue, as the case is presented to this court, being whether the defendant is liable on the note for $400. As respects this note, the defendant avers that “the same has been fully paid and satisfied; that as soon as the same became due and exigible, viz: on or about the first of April, 1855, respondent repaired to the office of the Recorder of the parish of Terrebonne, in whose possession the said note had been left, and at whose office the same was payable, and plaintiff not being there to receive payment, respondent paid the same to J. Adrien Leblanc, the then legally qualified Recorder of the parish of Terrebonne, who was fully authorized to receive said payment. That the plaintiff was duly notified of said payment, and frequently demanded payment of said Recorder, and never called upon the defendant for payment until after the death of Leblanc, who died insolvent.”

No exception having been taken to the prematurity of the plaintiff’s demand, and the plea being paAjment, our inquiry is confined exclusively to the validity of this alleged payment. And first we will remark, that a mere designation of the Recorder’s office as the place where the payment of the note was to be made by no means authorized a payment to the Recorder himself. The Recorder was not a banker, nor is it shown that the note was left with him for collection. On the contrary, the stipulation in the act of sale would indicate that a payment of the note at maturity was not contemplated by the parties, unless certain judicial mortgages were erased, and in case the mortgages should fee erased, then it was provided that the note should be given up to the plaintiff. The Recorder retained the note for the security of the defendant, not of the plaintiff, and if he is to be considered as standing in the relation of mandatary towards either of the parties, it must be the defendant, not the plaintiff.

Again, the endorsement upon the note made by the Recorder at the time he received it, shows that he did not consider it as deposited with him for collection. It is as follows: “Deposited for safe keeping for F. Aguila/r, until he raises the mortgage on the land sold.”

Indeed we should infer from the terms of the bill of sale and the acts of the parties, that the note was not to be intrusted to the plaintiff at all until he had complied with the stipulation respecting the mortgages. A delivery of the money under such circumstances to the Recorder must be considered as a deposit, not as a payment, and, as such, was at the risk of the depositor. O. O. 2136.

Indeed, so far was the defendant from considering the deposit as a payment to the plaintiff, that at the time it was made the defendant left express instructions with the Recorder that it was ‘■'■not to be paid to Mr. Aguilar till Mrs. Malbraux's renunciation had been procured.”

But it is contended that the plaintiff himself has ratified the validity of this deposit as a payment. The plaintiff certainly made repeated and ineffectual efforts to collect the amount from the Recorder, and he is shown to have spoken of this deposit as “his money in the Recorder’s office.” There is nothing, however, in such conduct and language which implied that he considered the deposit as a payment, or that he intended to release the defendant.

The case of Breen v. Schmidt, 6th Annual, though applicable so far as it relates to the principles announced, did not present a similar state of facts with that now under consideration. The judgment for the defendant in that case was placed exclusively upon the ground, that the plaintiff had instructed the defendant to make payment to the notary of the first instalment upon the purchase of a lot. It was held that by so'doing the defendant consented to consider the delivery of the money to the notary as a payment.

In a subsequent case, of Brown against the same defendant, it was held that as a general rule such -a delivery of money to the notary was a deposit, not a payment. See 7 An. 349.

We find no evidence in the record of a consent on the part of the plaintiff to consider the delivery of the money to Leblamc as a payment of the note.

It is ordered that the judgment appealed from be reversed; that the plaintiff, Fernando Aguila/r, do have and recover of the defendant, Inicien, Bomgeois the sum of $625, with interest at the rate of eight per cent, per anuum on $400 thereof from the 1st day of April, 1855, till paid, and with like interest on $225 thereof from the 1st day of April, 1856, till paid, with costs of suit, and that the plaintiff’s right of special mortgage, stipulated in the act of sale referred to in the petition, be recognized, together with the privilege of said plaintiff as vendor upon the property described in the petition, and that the same be sold to satisfy the plaintiff’s claim, and the proceeds applied to the payment of the plaintiff’s demand, with privilege and preference as aforesaid. It is further ordered, that the costs of this appeal be paid by the defendant and appellee.


author: Merrick, O. J.

text:
    P. F. Helluin v. W. J. Minor.
    When a patent from the United States issued to the assignees of parties who had purchased tract of land from the United States, and obtained the Receiver’s receipt for the same, the title will not be invalidated on the ground that the act of transfer from the original purchaser from the United States to the patentees expressed that it was made for vahie received, without mentioning the price.
    The assignment was executed in the form recommended by the Land Department of the United States, and the patentee is the holder of the legal title.
    Appeals from the District Court of Terrebonne, Cole, J.

      A. Gentile and Malhiot & Mills, for plaintiff and appellant.

      Goode & Aycoclc, for defendant.
   Merrick, O. J.

Basile Richard and Joseph Richard having a claim by preemption to the tract of land in controversy, under the Act of Congress approved 19th June, 1834, reviving the Act of 29th of May, 1830, relative to pre-emptions, on the 23d day of June, 1843, obtained the Receiver’s receipt for the same. On the 27th day of the same month, they executed an act in the following words, viz:

“ Eor value received, we, Basile Richm'd and Joseph Richm'd, of the parish of Assumption, State of Louisiana, do hereby assign, transfer and set over, unto Van Pm'hins Winder, of the parish of Terrebonne, and Wm. J. Minor, of Natchez, Miss., all of our right, title, claim and demand, to a tract of land purchased by us on the twenty-third day of June, 1843, as per Receiver’s receipt No. nineteen hundred and ninety-four, designated as the-of section No. eighty-three, in township No. seventeen, of range No. seventeen, East, situated in the district of lands subject to sale at New Orleans, and request that a patent may be issued to the said Van Pm'hins Winder and Wm. J. Minor,. their heirs or assigns.
“Witness our hands, this twenty-seventh day of June, 1843.
His “Basile + Richard. His “Joseph + Richard.
“Acknowledged before me, this twenty-seventh day of June, 1843.
“A. M. Eolet,
“ Justice of the Peace of the parish of Assumption.
“Marcellin Richard, Témoin.”

A patent issued to Van Perhirn Winder and William J. Minor, as assignees of Basile Richm'd and Joseph Richan'd, on the 27th day of December, 1843.

Minor purchased the interest of Winder.

The present suit was commenced against the defendant Minor in April, 1853, in the usual form of petitory actions. The plaintiffs set up the certificate of the Register of the Land Office in favor of Basile and Joseph Richard, and alleged that a patent issued to said Basile and Joseph Richard for the same.

They further allege that Willimn Minor,' in the year 1846, unlawfully and In bad faith, took possession of the land.

The defendant, among other things in his answer, set up the transfer from the two Richards, the patent to Winder and Minor, and transfer from Winder of his interest to Minor.

Judgment was rendered in favor of the defendant, and plaintiff appealed.

The plaintiffs state the controversy as follows:

“ The issue then,” they say, “ involved in this suit, regarding- the respective titles of the plaintiffs and defendant, is whether the Rieha/rdi title has passed, to the defendant ? Defendant avers it has, in virtue of the assignment of the Richards to himself and Winder, and the patent issued to them as the assignees, of Richards.”

In this statement of the case, it is evident that plaintiffs’ counsel have assumed that the Register’s certificate and Receiver’s receipt are the title. Now, as between the holder of the Register’s and Receiver’s receipt and the patentees,, the question -might be much more pertinently asked, which party holds the. legal title ? the General Government, we believe, has uniformly held that the patentee is the holder of the legal title. 3 An. 87. If so, the defendant’s title must prevail, unless there are equities to defeat it.

But the defendant has exhibited his title, and he claims in virtue of a transfer from Basile and Joseph Richan’d, and if the assignment were invalid,, it is possible that in a proper case it might be decreed that the patentees being without equity should hold for the benefit of the equitable owner.

In this case, however, the plaintiffs have not in their petition attacked the transfer or patent by alleging that they were improperly and fraudulently obtained, and the plaintiffs cannot, in this suit, raise the question, except perhaps by showing that the transfer made by Basile and Joseph Richard to Wilder and Minor, when produced, is absolutely null and void upon its face. The plaintiffs contend that it is thus absolutely null upon its face.

The act was executed in the form recommended by the Land Department at Washington, after the passage of the Act of January 23d, 1832, authorizing-the assignment or transfer of the certificate of purchase or final receipts of settlers under the Act of 1830, and authorizing the issuance of patents in the name of the assignee. Statutes at Large, vol. 4. p. 495.

The plaintiffs contend that if the Act referred to be considered a sale, it is void for want of a fixed and determinable price, (C. O. 2414, 2439 j) if it be considered as a donation, the assignment is void, not having been passed before, a notary public and two witnesses. C. O. 1523.

There cannot be any doubt that our courts would consider the instrument invalid as a donation, and it may not be (technically considered) a sale under the Civil Code; but it does not necessarily follow that the contract itself, after its execution, is to be considered as void because it cannot be classed under the contract of sale. Trop. Yente, No. 148.

An illustration of this occurs where a planter or a head of a family sends his servant for, or orders himself in person, without agreeing upon the price, such articles of merchandize at a store where he has a credit as he may need. The dealer charges the goods upon his books at such prices as he deems just. Here no price is agreed upon, and at most it can only bo implied that the planter will pay a price equal to the value of the goods at the end of the year or pox-iod of credit. Now, although there has been xxo fixed price agreed upon, the planter, after having consixmed the goods or injxxred the same by wear, would not be listened to for a moment in a court of justice, with a plea that in the delivery to him of each article there was xxo contx-act of sale, because there was no price agreed upon, as required by Article No. 2439 of the Civil Code. The court would at once conclude that the property in the goods, by a contract analogous to the contract of sale, had vested in the one party, and the value of the goods was due to the other party, and that if the contract was not a sale, it was an innominal contract, not the less obligatory.

So in the contract before us. We find it has been executed. The vendors have received what they considei'ed the value of the land; the vendees have received what was contemplated, a patent, and with it the possession of the soil.

Now, as this instrument was made to conform to the instructions of the department at Washington, where it was to produce its principal effect, we think we may safely infer from the language used, “ for value received,” that the price was agreed upon and paid, or its equivalent given in exchange. A contract is not invalid because the cause has not been properly expressed. O. O. 1894. As the contract was not attacked by the pleadings, the defendant was not bound in the present case to administer proof of the real price, the consideration of the sale.

Judgment affirmed.


text:
    Rufus K. Howell v. Andrew E. Crane.
    When one has acquired a negotiable note after its maturity, he will, notwithstanding, be protected as an innocent holder if the immediate party who transferred the note to him took it by endorsement bona fide for value, before it was due.
    Appeal from the District Court of the parish of St. James, Ratliff, Judge of the Seventh District, presiding.

      C. A. Johnson, for plaintiff.

      Berault & Legendre, for defendant and appellant.
   Spofford, J.

This is a suit by the holder of a negotiable promissory note against the maker.

The defence is, that the maker has been disquieted in his title and possession of the slave for which the note was originally given by him to the payee, and that he is entitled to set up this defence because the plaintiff acquired the note after its maturity.

It is probably true that the plaintiff acquired the note after its maturity ; but there is no other reason for suspecting his good faith. And it is proved that the endorser, from whom he acquired it, took the note from the payee and first endorser long before its maturity, in good faith, and for a valuable consideration.

Under these circumstances, the plaintiff succeeds to the rights of the endorser under whom he holds ; and the equities pleadable, as against the payee, are not open to inquiry in this action.

“ If the immediate party transferring an overdue bill might have sued thereon, as, if he took the bill by endorsement, Iona fide, for value, before it was due, the holder is invested with his rights.” Chitty on Bills, ch. 6, p. 245. See also 3 Kent Com., *p. 92; Story’s notes, §178; Chalmers v. Lanier, 1 Camp. 383.

Judgment affirmed.


author: Voorhies J.

text:
    William Spencer v. Henrietta Amis, Executrix and Tutrix.
    A judicial mortgage affects the debtor’s slaves attached to a plantation in a parish where the judgment was not recorded, from the date of the registry in the parish of the debtor’s domicil. C. C. 8318, 8328, 381T, 8296, 8217.
    Appeal from the District Court of Madison, Farrar, J.

      Alexander' Steele and J. B. Lyman, for plaintiff and appellant.

      Stacy, Sparrow da Snyder, for defendant.
   Voorhies J.

This is an hypothecary action based on the following state of facts: On the 12th of June, 1843, Goodwin, Fishes’ and Spencer obtained for the use of the plaintiff a judgment against L. A. Gollier in the Ninth District Court of this State for the sum of $1916 80, with eight per cent, per annum interest thereon from the 7th of October, 1841, until paid, and costs of suit, which judgment was duly inscribed in the office of the Recorder of Mortgages of the parish of Concordia, the domicil of Gollier, and reinscribed in the same office on the 19th of June, 1853. Gollier then owned and possessed a plantation in the parish of Concordia, where he continued to reside until January, 1844. On the 16th of March, 1841, he acquired bypurchase at Sheriff’s sale a plantation and slaves in the parish of Madison, which he continued to own and possess until the 9th of January, 1844, when they were sold by the Sheriff, under an execution against him, to Amis and Featherston for the price of $25,866 66. The interest of Featherston therein was subsequently conveyed to Junius Amis, who died in 1852, leaving a widow and several minor children as his legal heirs. After satisfying the writ against Collins, and making an allowance for the value of a portion of the property from which Amis was evicted subsequent to the sale, there remained a surplus of $13,739 66 in the hands of said Amis to pay the debts of Oollies\ Out of this surplus, Amis applied the sum of $11,000 to the payment of the claim of the Planters’ and Commercial Bank of Natchez, secured by a mortgage originally given by Hunter & King, from whom Gollier derived his title under the Sheriff's sale, leaving still in his hands, as cash, a balance of $2739 66, on the 9th of January, 1844. Other mortgages existed on the property ; hut it is evident could not affect the plaintiff’s rights, as more than ten years had elapsed since their inscription, and they do not appear to have heen reinscribed.

The admission of the parties shows, that the slaves, on which the plaintiff seeks to enforce his judicial mortgage, have been employed in cultivating the plantation acquired by Gollier at Sheriff’s sale, in the parish of Madison, ever since the year 1841; and that said plantation and slaves belonged to the community of acquets and gains which existed between the late Junius Amis and his surviving spouse, Henrietta Amis, natural tutrix of her minor children, issue of their marriage.

It is contended by the defendants that the inscription of the judgment against Gollier in the parish of Concordia, the place of his domicil, could not affect his slaves attached to his plantation in the parish of Madison, that in order to have effect, such inscription should have.been made in the latter parish, where the plantation is situated; whilst on the other hand it is insisted that no mortgage unless recorded in the parish in which Gollier had his domicil could affect his slaves, and hence the plaintiff’s mortgage was entitled to precedence even over the execution under which the slaves were sold to Amis in 1844. t

The Civil Code, Article 8318, declares : “The inscription of mortgages only hinds the property of the debtor, when it has been made, with regard to immovables, in the office of mortgages for the parish where the property lies; and with regard to slaves, in the office of mortgages for the parish where the debtor has his domicil or usual residence. If the debtor has immovable property lying in more than one parish, the inscription ought to be made in the ■office of mortgages for each of them.” See also C. C. 3328, 3317, 3296.

Under this Article, in order to bind slaves, it is perfectly clear that the inscription of a conventional or judicial mortgage must be made in the office of mortgages for the parish where the debtor has his domicil or usual place of residence. But it is insisted that the exception to this general rule exists in ■cases where slaves are attached to and permanently employed in the cultivation of a plantation; and have become immovables by destination or operation ■of law.

The Articles of the Civil Code on which the defendants rely, do not, in our ■opinion, warrant such a conclusion. In the division of things in the Civil Code, “ slaves, though movables by their nature, are considered as immovables by the operation of law.” (Art. 461). Thus classed, independently, it is evident that they cannot be considered as falling within the scope of Article 459, or the ■category of things which become immovables by destination: Article 459 applies, we think, exclusively to movables placed by the owner for the service and improvement of a tract of land, and to such also as are attached permanently to the tenement or to the buildings thereon erected. A destinction between immovables and slaves in relation to mortgages appears to be carefully observed in our different statutes upon the subject, and cannot be disregarded by us. Moreover, the proposition assumed by the defendants is sought to be deduced merely from inference and, as we conceive, in opposition to the clear letter and spirit of the law.

It is proper to observe that the only question strictly before us is, whether a judicial mortgage affects the debtor’s slaves in another parish from the date of its registry in the parish of the debtor’s domicil, and we hold that it does. There is no conflict of mortgages here; and we are not called upon to say whether a vendor’s privilege might not override this judicial mortgage bjr registry in the parish where the plantation to which the slaves belonged was situated, under the following- Article of the Code: “The privilege granted to the vendor on the immovable sold by him extends to the slaves, beasts, and agricultural implements attached to the estate and which make part of the sale.” O. O. 3217.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the plaintiff’s judicial mortgage on the slaves described in his petition be recognized as valid, and that in default of the payment of the judgment in his favor against said L. A. GoUier, including principal, interest and costs, said slaves be seized and sold according to law to satisfy the same, and that the defendants and appellees pay the costs of both courts.