author: Niciiolls, C. J. Breaux, J.

text:
    No. 11,199.
    William J. Beatty et al. vs. Cornelius Hawkins et als.
    The items which figure on the credit side of an account furnished by an agenc at the instance of the heirs of his principal are not barred by the prescription of either three or five years.
    Where a principal in a written instrument dated in I88d acknowledging himself to be then indebted to his agent for his services authorizes him to pay the debt and interest from the net profits of a plantation of which he continues him the management and the possession, the heirs of theprincipal can not successfully plead against such claim either the prescription of throe or five years, when at their instance and being still in possession lie renders thorn an account and net profits to cover his claims are not shown.
    PPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      H. N. Sherburne for Plaintiffs and Appellees.
    J>. H. Cross, Yoist & Claiborne and Cross & Cross for Defendants and Appellants. ■
   The opinion of the court was delivered by

Niciiolls, C. J.

This action is instituted by William J. Beatty, alleging himself to be the executor of the estate of Robert Beatty, Sr., who died in the State of South Carolina, place of his domicil, in March, 1890, joined by a number of persons, most of whom are residents of that State and none of Louisiana, who aver themselves to be heirs of the said Beatty.

The petition represents that Glenn D. Peak, a resident "of South Carolina, was agent of the late Robert Beatty for the management, collection of money due for the lease and general supervision of a plantation in the parish of Iberville, known as the West Oaks plantation. That Robert Beatty, Sr., bought at sheriff’s sale the above described West Oaks plantation on the 17th of April, 1869, and died in tiie month of March, 1890.

That Glenn D. Peak still holds possession of the said West Oaks plantation and refuses to deliver possession thereof to the heirs and executor of Robert Beatty, Sr. That the said Peak has leased to Cornelius Hawkins the said West Oaks plantation for the present year (1891) for one-fourth of the cotton grown and gathered onsaid plantation this year. That the said Peak leased fo divers persons the said West Oaks plantation every year since and including the year 1866, for one-quarter of the crop of cotton r*aised and gathered on said plantation. That said price of lease was more than twenty-five bales of cotton for each year. That the said bales of cotton were worth more than 840 per bale, making the amount due petitioners on the cotton thus received $25,400. That the said Peak leased fifty acres of land for cultivation of corn each year up to 1881, inclusive, at $5 per acre, and collected the amount of .$3750 for said lease of corn land. That Glenn D. Peak, fraudulently pretending to Robert Beatty, Sr., that the said West Oaks plantation produced no revenues, obtained from Robert Beatty, Sr., various amounts at various times, amounting in all to $2582, which the said Peak pretended to use for repairs and improvements upon the said West Oaks plantation, whereas in truth and in fact the said amount of §6582 were used for the personal benefit of said Peak and not for repairs, etc. That possession of the West Oaks plantation has been demanded by petitioners of Cornelius Hawkins and Glenn I). Peak in vain. That the said Peak lias failed and refuses to pay over to Robert Beatty, Sr., or to his heirs or executor any portion of the amounts hereinbefore mentioned and obtained through fraud and misrepresentation, oí’ to render an account of his agency.

They therefore prayed that Peak and Hawkins be cited and that there be judgment decreeing the said West Oaks plantation to be the property of petitioners, and that they do have and recover possession of said plantation from said defendants. That a writ of possession issue and petitioners be placed in possession of said plantation. That there be judgment against Glenn D. Peak in favor of petitioners for the sum of §86,782.50. That Cornelius Hawkins be enjoined from paying to Peak any portion of the price of said lease of the West Oaks plantation for the present year (1891). That Glenn D. Peck be cited to appear and defend the suit through a curator ad hoe appointed to represent him.

Under the prayer of this petition Hardee Cross was appointed curator ad hoe to represent the absentee, Glenn D. Peak.

On the 7th January the defendant, Peak, through his attorneys, Yoist & Claiborne, with leave of court, filed a peremptory exception to the effect that plaintiffs are without capacity' to .maintain the suit.

1. Because the deceased, R, Beatty, Sr., left an estate in South Carolina which is under administration under the laws of that State. That his domicil was in South Carolina and an auxiliary' administration is necessary in this State in order to liquidate the affairs of his succession in this parish (Iberville). And the proper representative is the executor appointed under his will. That he himself (Peak) is executor appointed under his will, which has been probated regularly in South Carolina.

2. Because plaintiffs*are not his heirs as alleged in their petition. That in view of a duly certified copy of said will, the same be registered and the execution ordered, and that exceptor be confirmed as executor and letters issue to him, and that plaintiff’s demand be dismissed.

Plaintiffs alleging that the exceptions filed are in substance an answer, moved that they be referred to the merits to stand as an answer.

By agreement of counsel the exceptions were overruled and the case was continued. At the next term of court defendant filed an answer, first pleading the general issue, but admitting that he acted as agent for deceased, but that in 1884 he paid over the balance due him, and since that time his gestión is set forth in two exhibits, H and B, made part of his answer. That Robert Beatty, Sr., at the time of his death owed a judgment against him in -Pointe Coupee parish in suit of--, and also the share of Patsy Beatty, inherited by him, making in the aggregate $2000, and respondent was to receive salary as agent from 1884 at $500 per year, of which the share of Robert Beatty, Sr., was three-fifths or $300. That Robert Beatty, Sr., signed a counter letter setting forth that whereas he had advanced moneys for prosecutions of suits and claims for the heirs of Dr. Jesse Beatty in Louisiana in bringing to sale the West Oaks property, and the title was taken in his name, he agreed to reconvey to the heirs who should pay their portion of such advances; that respondent accordingly paid one-third of the purchase price of said property, and said Robert Beatty, Sr., always recognized respondent as owner of said one-third, to which he intended to convey title. That failing to do so he was responsible to respondent for the restoration of said purchase price; that on a fair settlement said estate of Beatty owes him at least $500, for which he reconvened and prayed for judgment against plaintiffs, each for his virile share, and for general relief.

In Exhibit” A” referred to, the defendant acknowledged to have received as agent from dates commencing February 23, 1885, and ending March 6, 1891, the sum of §6770.47, representing the proceeds of 162 bales of cotton.

In Exhibit “B” the defendant credits himself with the sum of ?3Jrl3..yi for taxes, lumber, merchandise and other bills alleged to have been paid by him for and on account of Robert Beatty, Sr.

The defendant, Hawkins, excepted peremptorily to plaintiffs’ demand and moved the court that the suit and order of injunction prayed for be dismissed so far as he was concerned; (1) because he was simply the lessee of said plantation for the year 1891 for one-fourth of the cotton grown and gathered on said plantation for said year; (2) because he has paid over said rent cotton to the party from whom he rented the plantation; (3) because no order for a writ of injunction was ever issued against him enjoining him from paying to Glenn D. Peak the portion of the price of the lease of the West Oaks plantation for the year 1891; (4) because upon a petition of all parties, plaintiffs and defendants, filed in court and order therein granted, said rent cotton was turned over to H. N. Sheburne, of counsel for plaintiffs, to be accounted for, and that therefore he is not concerned in the case one way or the other.

In May, 1892, the court, declaring that all parties consented thereto, dissolved the injunction and granted an order that the cotton now in the possession of the defendant, Cornelius Hawkins, for the year 1891, be shipped to G. W. Sentell & Co., New Orleans, by the sheriff of the parish for his account, and subject to the order of H. N. Sherburne.

In December, 1892, defendant, Peak, filed an amended answer, in which he declared that he found he was entitled to another credit of $147 for taxes paid in 1884 by him as agent, and prayed that he have judgment in accordance with the fact.

He filed a second amended answer, in which he declared that for the purpose of making his answer more explicit, that the amount paid by him to Robert Beatty, Sr., as well as can be stated (the same, being paid at different times) was about $6500.

Plaintiffs pext filed a plea of estoppel and prescription, in which they aver “that Glenn D. Peak is estopped from making any charge against the heirs of Robert Beatty, Sr., under Judgment No. 244, G. D. Peak vs. Margaret Young, late Fifteenth Judicial District Court of Pointe Coupee parish, by the allegations contained in the petition in said suit, and specially pleaded the prescription of three years against all items charged in exhibit marked “B,” and five years against defendant’s charge for services as agent, and also expressly plead the prescription of,- three, five and ten years against the claim made by defendant to be reimbursed for the one-third of the purchase price of the West Oaks plantation.

Admissions were placed of record “that the West Oaks plantation belongs to the heirs of Robert Beatty, Sr.', and Mrs. Peak also being one of the heirs; that there were seven branches of heirs, of which Mrs. Peak was one and the plaintiffs the other six; that the accounts current marked A, B, C, D and E of Gumbel Bros. & Mayer annexed to the testimony of Glenn D. Peak are true extracts from the books of said ñrm, also that the statement of defendant since 1.884 is correct in regard to the amount of cotton received and the amount of money realized on it.”

The ease went to trial-, resulting in a judgment in favor of the plaintiffs and against the defendant of a character such as to necessitate our making a special reference at this point to a particular piece of evidence introduced on the trial by the defendant, in support of the allegation of Ms answer that he acted as agent of Robert Beatty, Sr., “ but in 1884 he paid over the balance due.” The instrument is referred to throughout the proceedings as document “0,’ and has, together with other papers bearing on the subject matter, been brought up in the original with the transcript. It is as follows :

“Received of Glenn D. Peak all the rents, profits and income from my Louisiana property in full satisfaction of his agency up to date, and as I am indebted to him in one-third of the sum or amount decreed in his favor in suit No. 244, Glenn I). Peak vs. M. A. Young et als., by the Fifteenth Judicial District Court, Pointe Coupee parish, La., the same being my part or portion of his claim for services as agent for heirs of Dr. Jesse Beatty, I hereby authorize and direct him as my agent in future for my Louisiana property to retain and apply all net rents, profits and income from my said property in Louisiana to the payment of said debt and interest thereon until paid. I by agreement with him was not be included in the above mentioned suit against the other heirs. March 14, 1884,

R. Beatty, Sr.

During the progress of the trial the genuineness of the signature of Robert Beatty, Sr., to this paper was questioned, and the decision of the question became a vital one in the litigation.

We have stated that the judgment of the District Court was in favor of the plaintiffs and against the defendant, Peak. It was as follows:

‘ ‘The law and the evidence being in favor of the plaintiffs and against the defendant, Glenn D. Peak, it is ordered and adjudged and decreed that the plaintiffs (naming them, but omitting William J. Beatty, as executor of the estate of Robert Beatty, Sr.) do have judgment against G. D. Peak, declaring, adjudging and decreeing the receipt reciting the payment in full of all indebtedness of G. D. Peak tc Robert Beatty, Sr., on account of his agency of and for the property of Robert Beatty, Sr., situated in Louisiana and marked “0,” to be a forgery and of no effect. It is further ordered, adjudged and decreed that there be further judgment against G. E>. Peak and in favor of the plaintiffs for the sum of §12,400, it being the value of 310 bales of cotton shipped from the West Oaks plantation, Iberville parish, by G. D. Peak to New Orleans, Louisiana, for his own account.
“ It is further ordered, adjudged and decreed that there be further judgment against Glenn D. Peak in favor of plaintiffs for the additional sum of §6770, price of cotton sold by him from the West Oaks plantation and for his own account since March 14, 1884.
“ It is further ordered, adjudged and decreed that this judgment be and the same is subject to a credit of §1065 in favor of Glenn D. Peak for taxes paid by him on the West Oaks plantation, and that all other demands made by him are rejected.”

Defendant’s motion for a new trial having been overruled he appealed, and has, besides, pleaded in this court the prescription of ten years “against the demand contained in plaintiffs’ petition for rents and revenues of the West Oaks plantation, claimed to have been received by the defendant as agent of Robert Beatty, Sr.”

The plaintiffs have asked no amendment of the judgment.

It will be seen from the preceding statement that a petitory action for the ownership and possession of the West Oaks plantation, coupled with a demand for the fruits and revenues thereof, has terminated in a moneyed judgment against the defendant, as upon a settlement and adjustment of all claims and pretensions between the plaintiffs (who are alleged to be the heirs of Robert Beatty, Sr.) and the defendant, Peak, and particularly in reference to his actions and doings as agent in Louisiana, of Robert Beatty, Sr., and in a judgment in which no allusion whatsoever has been made to the plantation. As Robert Beatty, Sr., lived in South Carolina and died there, leaving a last will and testament which has been probated in that State in which one of the plaintiffs (Wm. J. Beatty) was named one of the executors, and under which will it would appear that letters of executorship have issued to him; as all of the plaintiffs, with a few exceptions, and Glenn D. Peak and his wife (who is one of the heirs of Robert Beatty) all live where the testator died; as Peak himself (although he does seem to have accepted the trust) was named one of the executors of Robert Beatty, Sr., and the agency which has given rise to this litigation originated in South Carolina, it would be difficult to understand why plaintiffs should have resorted to the courts of this State rather than to their own, where all the parties, their character, credibility and standing are known, and where Beatty’s succession is under administration, were it not for an intimation in the pleadings that at one time the defendant laid claim to the ownership of one-third of the WestOaks plantation. This claim he has abandoned, and in lieu thereof has substituted a demand for the repetition of the price of said one-third, which he avers he had paid to Robert Beatty, Sr., in anticipation of a deed which was never passed.

Tiie defendant has submitted the issues involved in the litigation to the court without objection.

The portion of the judgment condemning the defendant to pay the sum of S 12,400 as the value of 310 bales of cotton, shipped from the West Oaks plantation, Iberville parish, by G. D. Peak to New Orleans, Louisiana, for his own account, rests upon the production by the plaintiffs of extracts from the lull of lading book of the Grosse Tete, Baton Rouge & Opelousas Railroad Company, showing shipments by that road of cotton for the account of the defendant at different dates between October 29, 1873, and January 26, 1883, and by testimony as to the average weight of a bale of cotton and its value. In order to sustain this part of the judgment, which concerns transactions prior to the 14th of March, 1884, at which date defendant sets up a full, settlement between Robert Beatty, Sr., of his antecedent acts of agency, this court will have to utterly disregard the document “C” found in the record. That paper was simply offered as a piece of evidence, and there was no pleading or prayer by the plaintiffs to support a substantive direct judgment by the District Court that it was a forgery. We have besides carefully examined the testimony in regard to it, and not only do we not concur with the court below in pronouncing it a forgery, but we are satisfied that the attack upon the genuineness of Robert Beatty’s signature thereto has utterly failed.

The defendant in his testimony said: “Referring toa receipt of March, 1884, the same was actually signed by Robert Beatty, Sr., on the date indicated in said receipt.”

We are bound to give effect to the declaration, unless the defendant in this case has sworn falsely and his contentions are based upon both forgery and perjury.

It would require evidence of a very strong character to justify any such conclusion. As not only property rights, bub as a question of vaster importance, affecting the honor and integrity of Glenn D. Peak is involved in this matter, we think it well to place on' the record the testimony upon the subject.

From the note of evidence it would appear that the document marked 0 ” having been offered in evidence, the plaintiff placed I. L. S. Hill (the husband of one of their number and the son-in-law of Robert Beatty, Sr.) on the stand, and a certain paper marked “F” bearing the signature of Robert Beatty, Sr. (offered for the purpose of showing that the signature of Robert Beatty, Sr., to the document marked “O” is not genuine, and that it is a forgery)9 having been submitted to him, said the signature of Robert Beatty, Sr., to the document marked ‘ F’ is genuine.”

The document “C” was then offered. The witness was then cross-examined by the defence and the following questions asked and answers given.

Q,. What induced you to believe that the signature to the receipt marked O ” was a forgery?

A. I have never expressed the belief that it was a forgery.

Q,. How did it happen that the document marked F” was brought here?

A. There was a suspicion in the mind of Dr. Beatty, but I did not suspect it.

Q,. Did you or any of the heirs ever see that receipt, so that it induced you to believe that it was a forgery, before you came here?

A. I never saw it myself until I came here. From what I know of the standing of Mr. Peak in South Carolina, I do not think he would be guilty of forging a document.

At this point defendant produced a document entitled “Depostion of Robert Beatty, Sr., No. 244, 15th Judicial District Court, Parish of Pointe Coupee, La., G. D. Peake vs. Margaret A. Young et al.” marked “ BB,” and asked the witness to compare the handwriting on this document with the handwriting to the document marked “ C,” but plaintiffs’ counsel objected, on the ground ” that the document marked ‘ BB ’ and offered to compare with the signature of Robert Beatty to the document marked ‘ C ’ is not authenticated as the law directs, and is inadmissible in evidence.”

The court overruled the objection and the plaintiffs took a bill of exceptions and the cz-oss-examination was resumed.

Q. Mr. Hill, compare the signature to the document marked “E” and the document marked “0.”

A. I think that the signature to the document marked “0” is not a forgery.

Re-Examination.

A. I was intimately acquainted with the handwriting of Robert Beatty, Sr., during his lifetime. The signature of Robert Beatty, Sr., to the document marked “ O ” resembles his signature. I am certain that it looks like his signature. I have never professed to be an expert in handwriting, and I do not now.

Recalled.

I am the son-in-law of Robert Beatty, Sr. I married one of his daughters. I am a brother-in-law of Glenn D. Peak, defendant in this suit. I was at the home of Robert Beatty, Sr., in the year 1886, and again in 1889. As I remember I had some conversation with Robert Beatty, Sr., in relation to his Louisiana plantation during those visits. I had a prospective interest iu the Louisiana plantation — that is, my wife had. I have never heard of any settlement between Robert Beatty, Sr., and Mr. Glenn IX Peak within the last ten years until this receipt marked “ C ” was produced in court concerning the Louisiana property. I heard of this receipt through Judge Sherburne (plaintiffs’ attorney) some two months ago. I think had a settlement been made I would likely have-heard it, being intimate with the late Robert Beatty.

Gross - Examined.

My wife is one of the plaintiffs in this suit. I think there was a very cordial, intimate, confidential and affectionate relationship existing between Robert Beatty, Sr., and Glenn D. Peak. Mr. Peak married one of the daughters of Robert Beatty, Sr., and Mr. Peak and myself married sisters. Mr. Robert Beatty said in 1886, and perhaps in 1889, that he was sorry that he had anything to do with Louisiana property, and was sorry to have spent any money on it, and often wished that he had left it alone, and he expressed a great desire several times to see Mr. Peak and to have a settlement with him.

Re-Examined.

I suppose that Mr. Glenn D. Peak has not lived with his wife for about eight years. I guess this as to the time, but they are virtually separated. Mr. Beatty bad a very great affection for his daughter, Mrs. Peak, as he had for all his children.

Rear oss - Examined.

So far as I know Mr. Peak has been on cordial terms with ola man Beatty and with all the family as far as I know, despite the fact above mentioned.

Lueien Grass, a witness for plaintiffs, being shown documents marked “C” and “F,” said:

“I can’t say that the signatures were written by the same party; that the initials are not made alike.”

Gross- Examined.

Q. Compare the signature to the document marked “BB,” and give your opinion as to the signatures on the documents marked “F” and “0”?

A. I should say that the signatures to the documents marked “BB” and “0” were written by the same party.

Louis Lozano, a witness for plaintiffs, being sworn, said:

“ I have had some experience comparing handwriting and signatures.”

Shown documents marked “F” and “C,” said:

“ It is possible that the signature may have been written by the same party — there is some similarity. The document marked ‘0’ looks like it had the signature of the oldest man.

Gross - Examined.

Being shown documents marked “BB” and “C,” said:

“ The same similarities exist, and to the signature on the document marked ‘F,’ the similarity being more marked on documents marked ‘BB’ and ‘C’ than on document marked ‘F.’ ”

William J. Beatty, one of the plaintiffs, being under oath (under commission), said:

“Sometime since 1884, Robert Beatty,Sr., and Glenn D. Peak met at my house for the purpose of making some arrangement or coming to some understanding, the purport of which I do not remember. From conversations I had with Robert Beatty, Sr., on the way to his home he said nothing was done. I was not present during the time he and Peak were conversing.”

Cross-Question.

Did Robert Beatty, Sr., say anything concerning a settlement with Glenn D. Peak, his agent for the management of the Wests Oaks plantation, and if so, did he say that Peak had paid him all money due him from the West Oaks plantation, Louisiana, Iberville parish.

A. I never had such conversations with him.

It may be well to say that the document marked “ E” bears date Cth of August, 1886, and that the document “BB” bears date August, 1882, (it .being a paper formerly filed evidence as the deposition of Robert Beatty, Sr., in the suit No. 244 of the District Court for the parish of Pointe'Ooupee of Glenn D. Peak vs. Margaret A. Young et al., referred to in the proceedings), and that the interview between Robert Beatty and Peak, to which William J. Beatty refers, is doubtless the same as that which Peak himself refers to, in his testimony — the purpose of which was matters other than the settlement of the agency prior to the 14th of March, 1884 — an interview at which no result was reached and which was postponed at Beatty’s suggestion to another time, but which was never held on account of Beatty’s death.

The testimony we have transcribed is the only ■ evidence in the record bearing directly upon the question of the genuineness of the signature of Robert Beatty to the document “ O.”

Plaintiffs’ counsel seek to sustain their position that that document is a forgery by a recital of facts from which they ask us to infer and presume that the act is not genuine. For instance, they say that Beatty would not have signed that paper in 1884, as it contradicts his statement in the document marked “BB,” in which he says that he had paid Peak all his agency charges in 1882; that the instrument is suspicious, as it in general terms clears away an indebtedness of sixteen years without vouchers to corroborate the settlement — as it only appears after this suit was brought and Beatty was dead and as there were no witnesses to it.

We have carefully considered everything said in the brief on that subject, but we can not give to the facts alleged (some of which are themselves merely assumed) the force and effect contended for. The plaintiffs themselves are by no means certain of their own contention, for they say that these facts show that the settlement is fraudulent and rrobably forged. If the document be authentic there is no evidence in the record upon which to declare it “fraudulent.”

We are of the opinion that the document is not a forgery, and being genuine the first portion of the judgment declaring it otherwise is erroneous and must be reversed. This conclusion carries with it the reversal of the judgment against Peak for §12,500, and eliminates all questions of his agency prior to 14th of March, 1884.

The judgment of the District Court against the defendant for §6770 subject to a credit of §1065 was reached by charging him with the full amount of all the moneys mentioned in his Exhibit “A,” and rejecting all the items on Exhibit “B” with which he credits himself, with the exception of the single item of taxes, to the amount of $1065.

That the amount shown in Exhibit “A,” for which the defendant was primarily liable, is correct, is conceded on all sides. We have, therefore, only to deal with the other exhibit. The district judge rendered a final judgment against the defendant on all the items thereof, with the single exception which we have stated.

It would appear that all the business of the defendant under his agency in Louisiana after 14th of March, 1884, was transacted through the house of Gumbel Bros. & Mayer and Ferdinand Gumbel & Co. To them was shipped and by them was sold all cotton, and to them were sent and by them were paid, alLbills. These houses rendered to the defendant regular accounts, showing amounts received and disbursed, copies of which accounts have been filed in the record, marked “A,” “B,” “O,” “D” and “B,” or Nos. 1, 2, 8, 4 and 5, and are admitted to be correct transcripts from the books of these firms. These copies were offered by the plaintiffs themselves without qualification in their entirety — that is to say, without discriminating between their credit and debit sides.

The defendant subsequently swore to the payment by him of each and every item of these accounts (which accounts form the basis of the exhibits “A” and “B”), and testified that the payments were made for the use and benefit of Robert Beatty, Sr. It is true that the vouchers which were in the hands of Gumbel Bros. & Mayer and Ferdinand, Gumbel & Co., were not produced, in which the bills were doubtless itemized, but they were not called for, and no attempt was made to controvert Peak’s testimony. It would certainly have been better had the vouchers been produced, but the plaintiffs had gone far in the direction of dispensing the defendant from doing so by offering themselves the accounts in evidence, and admitting they were correct transcripts from the books of the firms. We are of the opinion that the defendant has under the circumstances made a sufficient showing of the correctness of the items of Exhibit “B.” 19 An. 495; 29 An. 382.

For the reasons herein assigned it D hereby ordered, adjudged and decreed that the judgment of the DiKiict Court decreeing document “ C ” to be a forgery, be and the same is hereby annulled, avoided and reversed, and that the judgment appealed from be so amended as to reject plaintiff’s demand to the extent of $12,400, same being for transactions anterior to the 14tu March, 1884, and covered by document “ C,” and so as to allow defendant credit for the sum of $3412.51, being the credits enumerated in document “B.” It is further ordered, adjudged and decreed that the judgment of the District Court finally rejecting all other claims and demands of the defendant be annulled, avoided and reversed, and that all other claims, counter-claims and demands of the defendant be remitted to the lower court for a more complete restatement and the taking of additional evidence by all parties on a new trial thereof, and that for such purpose the cause be remanded to the lower court and therein reinstated. It is further ordered that the plea of prescription as to the claim of the defendant for repetition of the amount claimed to have been paid by him to Robert Beatty, Sr., be left open. It is further ordered, adjudged'and decreed that, subject to the foregoing alterations, amendments and reservations, the judgment of the lower court be and the saméis hereby affirmed, costs of appeal to be borne by the plaintiffs and appellees, those of the lower court to await final judgment.

On Application kor a Rehearing.

Breaux, J.

The plaintiffs have directed part of their application, for a rehearing, to certain items allowed on the credit side of defendant’s account, identified by the letter “B.”

Upon re-examination of our opinion we have not discovered any ground for a rehearing as to these items of credit.

In reference to the other questions plaintiffs contend should now be decided, it is sufficient to state that, in remanding the case, we have not closed these issues; offering the least ground for consideration upon a recasting of the account.

Certain items claimed and question of their prescription, vel non, are left open to future action.

There is no good reason why the claim for restitution of a certain' amount alleged to have been paid, on immovable property, and the plea of its prescription, should not be hereafter considered upon a final decision of the case.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 11,171.
    City of Baltimore vs. City of New Orleans.
    1. A resolution adopted by the council of a municipal corporation authorizing and directing its mayor to enter into a contract with a third person, when not acted on by the mayor and when no contract is made, does not of itself create a contract.
    2. Parol evidence of verbal agreement by the mayor, when the contract is set up as creating title to immovable property, is inadmissible.
    8. Tile rules relating to collations and succession partitions are expressly excepted from application to other partitions. Itev. C. C. 1200.

      i. Ordinary partitions involve only property held in common, and can only arise between co-owners of such property.
    5. A claim for money by one co-owner against another, in which all the co-owners arc not concerned, can not be injected into the action for partition, not being' incidental thereto, being an issue in which the plaintiff here has no concern, and not germane to the issue.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Thos. J. Semmes for Plaintiff and Appellee.

      E. A. O’ Sullivan, City Attorney, and Horace L. Dufour, Assistant City Attorney, for Defendant and Appellant.

      W. S. Benedict and Albert Voorhies for Intervenors and Appellants.

      Chas. J. Theard, Curator ad hoc.

   The opinion of the court was delivered bj

Fenner, J.

This suit was instituted on August 14, 1867. It is an action of partition of property alleged to be owned in common by the city of New Orleans and the city of Baltimore, consisting of a tract of land of 177 arpents, arising ont of a land claim bequeathed to them by John McDonough, which, subsequent to his death, was confirmed in their favor by an act of Congress passed June 7, 1858. The petition represented that the heirs of John L. Daniel claimed to own one undivided half of said land in virtue of some alleged contract with the two cities, which the city of Baltimore denies, so far as it is concerned, but calls on said heirs as well as the city of New Orleans to set forth their claims, and prays for a partition in kind or, if such division be not practicable, then for partition by sale.

The city of New Orleans filed answer on November 4, 1867, alleging joint ownership with the city of Baltimore, denying that ány other parties have any interest and concurring in the prayer of plaintiff’s petition.

No further proceedings were had until December 7, 1871, when a petition of intervention was filed by A. H. Isaacson, John Buckingham, L. N. Desharoon, A. T. Steele, and Sarah Isaacson, wife of A. H. Isaacson, who set forth that John L. Daniel was employed by Baltimore and New Orleans to procure the confirmation of the land claim herein involved, under a contract by which each of said cities agreed to give him one-half of what should be recovered for their benefit; that Daniel procured the passage of the confirmation act of Congress, which passed the land to the cities; that New Orleans liad complied with her contract, and had transferred to Daniel the half of her half of the land so recovered by act passed before Kerr, notary, on June 6, 1859; but that Baltimore had refused to comply witli her contract or to transfer to him any part of her interest in the land, but is, nevertheless, bound to do so. The intervenors further alleged that on June 20, 1859, Daniel transferred one-half of his entire interest to C. D. Hamilton, Jno. Buckingham and L. N. Desharoon in equal joint ownership; that on June 22, 1859, Daniel transferred to A. T. Steele his remaining half interest; and that on January 30, 1871, A. T. Steele had transferred the one-half of the interest then acquired by him to the two daughters of Daniel, viz.: 3VIrs. Sarah Isaacson and Mrs. Emily Brenham; and that on February 25, 1860, C. D. Hamilton had transferred the interest acquired by him as above to A. H. Isaacson.

It thus appears, not only by the allegations of the intervention, but by authentic acts of transfer produced and disputed by no one, that on the 20th and 22d of June, 1859, John L. Daniel had divested himself of all interest whatever in the land in controversy, and that at the date of the intervention Daniel’s interest in the land (whatever it may be) belonged to the following parties in the suit, viz.: to A. I. Steele, -20,-; to A. H. Isaacson, -244 ; to Jno. Buckingham, -244 ; to L. W. Desharoon, V,,; to Mrs. Isaacson, #4; to Mrs. Brenham (afterward Mrs. Seixas), 2s.t.

The intervenors prayed to be recognized as owners of one-half the property in the above proportions, and joined in the prayer for partition on that basis.

Here occurs another long halt in the proceedings of about sixteen years, until March, 1887, when the singular fact was discovered that ón May 2, 1859, nearly two months prior to any of the transfers by Daniel to the above intervenors, the cities of Baltimore and New Orleans had sold and conveyed to third persons nearly one-half of the property consisting of 108 squares of ground under a plan by which the property had been laid off in streets and squares, and had received therefor the piice of $75,284.

The record presents no evidence of these sales; but inasmuch as they,are formally alleged by some of the parties, are denied by none, and have been acted upon by the judge below, they may be accepted as admitted facts for the purposes of this case, though without prejudice to any rights of parties in any other proceedings.

Thereupon, Mrs. Isaacson and Mrs. Seixas,(who, as heirs of Daniel, had been made parties defendant to the original petition, appeared in the capacity of heirs and filed separate answers and pleas in re-convention, and, at the same time, A. T. Steele filed a new petition of intervention.

These pleadings are very lengthy, but may be summarized as follows:

They aver that the original intervention was filed in error and in ignorance of the sale by the two cities of the 108 squares, and they explain and excuse their ignorance; they set forth the fact of the said sales and the price received therefor; they say that as the sales were made, prior to the assignments of Daniel, to the other irstervenors, the latter acquired no right or interest in the 108 squares of ground or in the price thereof; they say, however, that at the date of said sales the one-half of the 108 squares, as well as of the rest of the property, belonged equitably to John L. Daniel and to A. T. Steele, the latter of whom had been the partner of Daniel in the whole transaction, and equally interested with him; that said sales and the conversion of the price were in fraud of the rights of said Daniel and Steele, and that the cities of Baltimore and New Orleans were bound to deliver to the said Steele and to the said heirs of Daniel one-half of the price received under said sales.

They, therefore, prayed for citation of the two cities, and for judgment against each of them for one-fourth of the §75,284, received as the price of said 108 squares, to be paid one-half to the said Steele and the other half to said heirs, respectively,

Both Baltimore and New (Means filed exceptions to this intervention of A. T. Steele on the grounds: 1. That the heirs of Daniel and Hamilton, Desharoon and Buckingham were necessary parties thereto. 2. That the moneyed demand could not be injected into this partition suit. These exceptions were sustained and the intervention of Steele was dismissed, so far as the moneyed demand was concerned, but suffered to stand, so far as it claimed an interest in the land to be partitioned.

Buckingham and Desharoon were made parties through a curator ad hoc, who reiterates the claims set forth in their original intervention, and pleaded estoppel against the denial thereof by their cointervenors.

On these pleadings, not very complete or scientifically framed, the case went to trial, resulting in a judgment discarding the 108 squares tvhich had been sold by the two cities prior to suit and ordering a partition confined to the land remaining in common ownership, and decreeing said land to be owned as follows: Baltimore, New Orleans, A. J. Steele, ¡,%; A. H. Isaacson, -0V; Mrs. Isaacson, -¡ftr; Mrs. Seixas, -JVr; John Buckingham, -¿V: and Desharoon, t,V.

The effect of this judgment is to recognize the claims of the assignees of Daniel, so far as his contract with New Orleans is concerned, and to reject them, so far as the alleged contract with Baltimore is concerned.

The only appellants from the judgment are A. H. Isaacson, Wm. Isaacson, the succession and heirs of A. T. Steele, and Mrs. Seixas. None of the appellees have asked for any amendment. The appellants complain of the judgment in two respects:

1. Because it rejects their demand against the city of Baltimore.

2. Because it rejects their demand for a moneyed judgment, and excludes the proceeds of the 108 squares sold by the city from the partition.

I.

While the contract between Daniel and the city of New Orleans is fully provfed, and is no longer in dispute, it must be conceded that there is an entire failure to establish a similar contract between Daniel and the city of Baltimore.

■ The very completeness of the proceedings by which New Orleans entered into her contract shows how incomplete remained the negotiation with Baltimore. Thus in the case of New Orleans we have not only an ordinance authorizing the mayor to contract with Daniel, but a formal written contract in pursuance thereof, followed by an ordinance authorizing the transfer to Daniel of the stipulated interest in the land and a subsequent actual transfer in compliance therewith.

No official action was taken by Baltimore beyond the adoption of the following ordinance:

“ Resolved, That the mayor be authorized and directed to enter into such arrangements as have already been made by the city authorities of New Orleans for the prosecution of the claims of the estate of the late John McDonough and other grants, which have been declared invalid by the Supreme Court of the United States and which require a special act of confirmation.”

The mayor never entered into such arrangements or made any contract. Some attempt was made to prove by parol some verbal arrangements between the mayor and Daniel, but as this evidence was offered in this case to establish title to an interest in the real estate in controversy, it was obviously inadmissible and, on objection, was properly ruled out. Moreover, that testimony itself shows that a written contract was contemplated and that efforts were made to obtain it which failed. The venerable Mayor Swann, who was in office at that date, testified that he had no recollection of any agreement with Daniel; that if he had made one it would be of record in the mayor’s office, and he is sure that if he had made any agreement in a matter involving such important interests to the city, he would have been careful to see it recorded and put on file.

No proceedings were ever taken by Daniel during his lifetime to enforce his alleged contract with Baltimore so far as appears on this record; and it was not until 1871, thirteen years after the transactiqm,. that his heirs and assignees for the first time judicially allege such rights.

It is impossible for us to hold that the resolution above quoted operates a contract; it is nothing more than a power of attorney to the mayor to enter into a contract; and as he did not act under the power and no steps were ever taken to compel him to do so the contract was never made and does not exist.

II.

This is not a partition of a succession, but an action of partition between co-proprietors of the same thing, and while, generally, the rules as to the partition of successions apply to the latter an express exception is made of those rules relating to collations. O. O. 1290.

The effort of appellants in this case is simply to destroy this exception and compel the city of New Orleans to collate the sums received by her for the property sold, and to bring it back into the active mass with the remaining land for partition as a whole. This can not be done. This kind of partition can only concern property held in common and can only arise between co-owners of such property.

Conceding the validity of the sales made by Baltimore and New Orleans of the 108 squares, the only property held in common between the parties to this suit was the balance of the 177 acres, and the judge properly confined the partition to that property. Appellants never had any interest in Baltimore’s portion of the price of the 108 squares, and Baltimore has no interest in the portion of said price received by New Orleans. No part of this price, therefore, is held in indivisión between the parties to this suit. Even if it could be said that the share of the price received by New Orleans belonged in indivisión to the city and to appellants, that would not justify the injection of partition between them into this action, because Baltimore has no interest therein. But obviously it can not be claimed that the price received by New Orleans was a thing held in indivisión or could be the subject of an action of partition between any parties. It is manifest the price passed into the ownership of the city of New Orleans and, if wrongfully received and converted.by her, gave rise, not to an action of partition, but simply to an action of debt. Such action can not be engrafted on a partition suit. It is not incidental to the main demand, but injects an issue in which the plaintiff has no concern and which is in no manner germane to the action.

If the appellants have a claim against the city of New Orleans for wrongful conversion of common property end failure to account for the price they must urge it in a separate and proper proceeding.

Judgment affirmed.