text:
    No. 13,910.
    Sonia Cotton Oil Company, Limited, vs. Steamer Red River, Captain and Owners.
    Syllabus.
    1. The consignee is the owner of the goods until the contrary is shown, and he can sustain an action and sequestration against the'master of the carrier for the recovery of the goods.
    2. After the arrival of the steamboat at the landing at which the delivery was to be made, the goods not having been unloaded and the boat having left the landing, and the appearance being that it was on its way to another market with the goods, there was ground for a sequestration.
    3. The captain’s unwillingness to carry the goods to the place designated by the consignee at the landing, even if sustained by the contract between him and the consignee, did not afford good ground for not landing the goods and tendering them to the consignee to be delivered on payment of the freight.
    4. On refusal of the consignee to accept goods, it devolves on the master of the • carrier to have them placed, at the expense of the consignee, in a place where they will not be exposed to loss.
    5. The terms of a bill of lading as written, to the extent that it is a contract and not a mere receipt for goods, are not to be changed by verbal testimony except in case of error or fraud.
    6. If there was error in the clause by which the master bound himself to place the goods on the levee, the master, none the less had no right to retain the goods on board and leave the place of the goods’ destination.
    7. The tender made by the consignee to the master of the freight charges on the goods was sufficient, in view of the fact that the master’s conduct and utterances'plainly showed that he was unwilling to accept the charges, even if tendered in a strictly formal manner and though the tender included all . that was due.
    APPEAL from the Thirteenth. Judicial District, Parish of Rapides —Blackman, J.

      John 'H. Overton añil. Robert P. & R. A. Hunter, for Plaintiff, Appellee.

      White & Thornton, for Defendants, Appellants.
   The opinion of the court was delivered’ by ' '

Breaux, J.

This was an action commenced in the District Court by plaintiff to recover possession of one hundred tons of cotton seed and to recover damages for the asserted wrongful detention of the seed. A writ of sequestration was issued at the instance of plaintiff and the cotton seed sequestered. The defendant pleaded the general issue and especially pleaded that plaintiff was not the owner of the seed and denied that they had refused to deliver the seed and averred that they offered to deliver it at the landing. Defendants set up in their answer that no tender was made of freight charges.

Defendants, averring that the sequestration issued unnecessarily, reconvened for the amount of freight charges and damages for the alleged illegal sequestration. The testimony discloses that plaintiff was the consignee of the cotton seed shipped to its address on the steamer Red River and that it had sufficient interest to sue for the seed when the suit was filed. The bill of lading issued by the steamer Red River stipulated that the seed was to be delivered, without delay unless prevented, on the levee at Alexandria where the carrier’s responsibility should cease, unto the Sonia Cotton Oil Company, Limited. There were about sixteen hundred sacks containing this seed. It-required a great deal of hauling to haul them up.

The steamer, on her way down from up the river, landed in front of Alexandria on Sunday, the'4th day of November, 1900, at about noon, and began putting out the seed in question at the foot of a high bank on a sandbar. The Sonia Oil Company, Limited, claimed that the seed should be delivered on top of the bank or levee, for the reason that there was at the time a threatening rise of the river that would overflow the sandbar and injure the seed. The captain of the boat persisted in putting the seed on the bar. After a little time, and some talk between representatives of plaintiff and the captain, he stopped the work of unloading the seed and ordered the return to the boat of the few sacks that had been landed, about fifty sacks. Plaintiff urges that defendant said at the time that he stopped the unloading, that he would take the seéd to New Orleans and sell it there. The boat and accompanying barge left the landing with the seed on board and crossed oyev from Alexandria to Pineville and was taking on other freight. Meanwhile'plaintiff'filed this suit and obtained a writ of sequestration. The boat then returned to the Alexandria side of the river and was tied up at the wharf, where it remained, owing to the sequestration, until three o’clock the next day. The seed, on Monday, was taken from the boat to the landing by order of the sheriff.

The evidence informs us that there is first a sandbar where the unloading of the boat was commenced when plaintiff’s agent objected, and in the direction of the city, after leaving the sandbar there is a ledge, and afterward a rising on to the levee. This is about all that need be said about the locus of the landing.

We take up in the first place for decision the question of the ownership of the seed. The issue is not directly raised and is before us only on a plea of general denial. Defendant is not greatly concerned in matter of the ownership of the seed. It claims the freight from-plaintiff and also claims that it has done everything it was ealle.d upon to do in carrying out a contract of affreightment. These defenses are not consistent upon their face, with the defense that plaintiff is not the owner. Besides, the consignee named in the bill of lading is, for all purposes, considered as the owner of the goods and the carrier is entitled to treat him as the owner until the contrary appears. The shipment in itself, until it is shown that the consignee is not the owner, vested him with the title of owner. Hutchinson on Carriers, § 130. There is no evidence before us going to prove that the property was not owned by plaintiff. .On the contrary, all tends to show that plaintiff was the owner.

This brings us to a consideration of the testimony upon which the writ of sequestration was issued. This testimony has bearing upon the merits of the ease as well as upon the right to the writ of sequestration.

After the difference had arisen between plaintiff and defendant regarding the sale and proper place to land the goods, the defendant did not stand upon the right he claimed to deliver them upon the sandbar to which we have before referred. He immediately ordered the sacks containing the seed to be returned to the boat. ITe'made no offer to the plaintiff to deliver them or the least attempt at tender of his property to plaintiff. The conduct and utterances of defendant were such as to give rise to the apprehension that he would take the goods out of the jurisdiction of the court. After they had been returned to the boat, it left the landing and crossed to the other bank. In our judgment, defendant should have made a tender of the goods in order to sustain his rights under the contract. Plaintiff was entitled to the cotton seed and upon defendant’s failure to deliver it, plaintiff could resort to a suit to compel its delivery. When the goods are not accepted by the consignee, it devolves upon the carrier to put them in a place where they will not be exposed to loss. When this is done, his obligation to do, under the contract, is at an end. He is then no longer liable under his contract of affreightment. Delivery must be made at a proper place and in a proper manner. Here there was not a persistent and complete attempt at performance. From all appearances, the destination of the goods was being changed when process issued. “The destination of the goods, when owned by the consignee, cannot be changed without his consent.” Hutchinson on Carriers, § 135.

The terms of the bill of lading gave rise to the next issue befoi-e us for consideration. These terms on the face of the bill, bound defendant to place the goods on the levee at Alexandria. But it is urged on the part of the defense that this stipulation was an error on the part of the carrier; that it was not possible, consistently with the interest of any public carrier, to carry the goods from the boat to the top of the levee; that this clause in the bill did not cover obligations covered by any custom; that the place at which defendant offered to land the goods was the usual place. The testimony on this particular point is conflicting. Plaintiff contends that in view of the rise in Red River which was coming on, that the landing at that place was not safe. The cause for apprehension on this score is sustained by the weight of the testimony. Granted that it was extremely inconvenient and more expensive than usual to carry the goods to the top of the levee, it does appear that, under the circumstances, defendant should have carried out the conditions of the contract as written as near as practicable. We have not found that this was attempted. The defendant commenced to unload on the line of the sandbar near the water and the testimony does not disclose that it was the intention then to place them anywhere else.

Mr. Hutchinson, in his work cited supra, says that where the contract of carriage specifies the wharf, dock, or other landing place at which the delivery shall be made, the contract must of course govern ■ in this respect, unless some other place be substituted by the parties. § 366.

In Hunter and Macauley vs. Mississippi Central R. R. Co., this court held that a bill of lading to the extent that it is a receipt may be explained, while that part of it which is a contract cannot be explained by parol testimony. The bill of lading, to t'he extent that it confesses the delivery and acceptance of the goods by the carrier is a receipt In other respects, it is a contract, and the contract particularly covers the obligation of carrying the goods to destination and of delivering them to the consignee. From that point of view, the carrier was bound to carry the merchandise to Alexandria and there deliver it in accordance with the terms of the bill of lading. Hutchinson, § 126.

In the absence of fraud or error, a conclusive presumption arises in support of the bill of lading'as written, but if error was committed, as contended, by including terms in the bill of lading binding the carrier to deliver the goods on the top of 'the levee, the carrying part of the obligation may be explained. Taking the foregoing as true, that error in the bill of lading may be explained. None the less the defense urged is not sustained, for the reason that there waá no right in the defendant to retain the goods. This question was carefully considered and determined by the Supreme Court- of the United States in the case of Modecai vs. Lindsey, 5 Wallace, 481. With reference to the right of the carrier to retain the goods until the chárge for the freight is paid, Mr. Justice Clifford, for the court, said: “His right to do is beyond doubt, but he cannot detain the goods on board the ship until the freight is paid, as the consignee or owner of the cargo would then have no opportunity of examining their condition. Delivery on the wharf, in the case of goods transported by ships, is sufficient under our law, if due notice be given to the consignees and the different consignments be properly separated so as to be open to inspection and conveniently accessible.” McCullough vs. Hall, 66 Maryland.

By the contract, the cargo was to be delivered at Alexandria. The arrival of the vessel at the wharf and the landing of a few sacks which were returned to the steamboat on the order of the captain was not a compliance with the carrier’s obligation, even if the captain was entirely in the right regarding the place selected by him to put the seed. There was not even a partial compliance with the terms of the.contract.

One of the issues before us is whether an actual tender of freight charges should have been made. The testimony shows that there was a seasonable offer to pay the amount due. The defendant positively-declined to listen to any offer of payment. The captain was intent upon retaining the goods and carrying out his views of responsibility under the contract. He refused to accept' the tender of payment, not because insufficient, but on -other grounds entirely. One should not be required to do a vain thing. It is manifest that had the full amount been tendered in currency of well'known legal tender, it would have been refused. Besides, before completing performance by a required delivery or effort to deliver the goods, the defendant was not entitled to any tender at all.

For reasons assigned, it is ordered, adjudged, and decreed, that the judgment appealed from is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,942.
    Mrs. Cora E. P. Calhoun vs. Charles H. Teal.
    Syllabus.
    Where there exists error of fact, proceeding either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none, and this error was the principal cause of, and bore upon the motive for, yielding consent to a certain business agreement, relief against it may be had.
    APPEAL from the Thirteenth Judicial District, Parish of Grant— Blackman, J.

      By an & Blackman,, for Plaintiff, Appellee.

      White & Thornton, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

In January 1888 the plaintiff sold to defendant a tract of land under agreement amounting to guaranty that within the boundaries describing the land would be found the quantity of 250 acres

The sale was made for the price of $1,750, or $7.00 per acre. If the area exceeded 250 acres, the vendee was to pay for the excess at the rate of $7.00 per acre.

After the vendee went info possession a survey was made and the surveyor reported, only ,198.65 acres in the tract,'or a deficiency of 51.35 acres.

Whereupon the vendee made reclamation upon the vendor for the return of a corresponding proportion of the purchase price, and the vendor failing to make restitution,, suit was instituted to 'enforce the demand. : ■ ■ • -a.'

Following the filing of this suit the vendee, Teal (defendant in-the present action), acquired by purchase certain-old-judgments operating on the property of his vendor, Mrs. Calhoun (plaintiff -herein), and proceeded to take legal steps to realize on'the-same.' • ■ ' - •

There was then brought about between the -parties' a' compromise agreement and settlement. - . ■ - . -

Mrs. Calhoun stipulated to convey to Teal a tract'of land estimated to contain 65,0 acres, and Teal stipulated to accept the same in full satisfaction of his demands against her on account of the old judgments, and his demand against her on account of the deficiency in the number of acres in the tract of land she sold to him in January 1888.

Whereupon the parties appeared before a notary and two witnesses and a formal act of conveyance of the 650 acres was executed by Mrs. Calhoun in favor of Teal.

In the written articles of compromise between the parties; made just prior to the formal conveyance of the 650 acres, it was stipulated that the consideration of the conveyance was to be the dismissal by Teal of all legal proceedings he had taken to enforce the judgments he had acquired by purchase, and also the dismissal of the suit he had filed to recover from Mrs. Calhoun $359.45 on account of the deficiency in the quantity of land sold him in 1888.

In the act of conveyance, itself, the consideration expressed was the transfer and assignment in full ownership by Teal to Mrs. Calhoun of the judgments he had acquired (describing same). The suit for the land deficiency is not mentioned specifically, though there is'a paragraph to the effect that the sale is made in accordance with .the written act of compromise executed between the parties.

But after the parties had affixed their signatures to the act. of conveyance, an addendum was, the same day, attached to it, reciting that, a part of the consideration of the act was that 50 acres of the land described in the act, being that portion adjoining lands then owned by Teal, was intended to cover and settle the claim he was asserting by suit for the deficiency in quantity of land heretofore referred to.

This addendum was, too, signed by the parties, the notary and the witnesses.

This act of conveyance, carrying out the compromise, was executed May 20, 1891.

Teal held the land he had acquired in 1888 from Mrs. Calhoun until "December 1897, when he sold it to M. E. Swafford for the price and sum of $2364.00.

It does not appear that in the 9 or 10 years of his possession of it, he ascertained, or had reason to know, that the tract as acquired by him from Mrs. Calhoun did really embrace 250 acres. But such was the case, and the surveyor, who was employed to survey it shortly after his purchase, had made an error in reporting its area at 198.65. ‘

When Mrs. Calhoun learned, which she did not do until 1897, of the error to her prejudice, she brought against Teal the present action to recover the 50 acres she had conveyed to him in 1891, to make up the supposed sufficiency, or its value.

The defendant testifies, in the case, that while he paid for the services of the surveyor who committed the error, it was Mrs. Calhoun who selected him. But a reference to the suit he filed in 1889, to recover for the deficiency in area, exhibits this allegation: — •

“Petitioner shows that he has caused to be made survey and map or plat, of the said lands described in said deed, by G. S. Johnston, Parish surveyor for Grant Parish, and that there are only one hundred and ninety-eight and 65-100 acres in the whole tract,” etc.

That Surveyor Johnston was mistaken is demonstrated by a private survey made about the time Teal sold to Swafford, and by an official survey made by order of court in this case.

The tract of land contained the 250 acres which Mrs. Calhoun had guaranteed. She, therefore, owed Teal nothing on account of diminution of quantity. She did not know this when she deeded him 50 other acres to make up the supposed deficiency. She believed the deficiency existed. Teal had insisted to her it did and had backed his insistance by suit. She settled this suit by conveying to him the 50 other acres. This was brought about by error of fact on her part proceeding “from a mistaken belief in the existence of that which has none.” C. O. 1821.

This error was the principal cause for making the contract and bore upon the motive for making it. C. C. 1823, 1824, 1825 and 1826.

She is entitled to be relieved from the consequences of her act thus brought about.

And it does not affect the ease that Teal, himself, acted in good faith and has not profited a dollar in the matter. That is to say he sold to Swafford believing there were not exceeding 200 acres in the tract of land. There were in fact 250 acres. He had honestly thought there was not that quantity, and as his vendor (Mrs. Calhoun) had guaranteed that area, he had called upon her to make good the supposed shortage of 50 acres and she had done so by conveying to him 50 other acres.

Teal has profited by this 50 acres. He has it still. He must return it to Mrs. Calhoun or pay her its value.

Such was the conclusion of our learned brother of the District Court and in so concluding he has rightly adjudged the issues of the case and dispensed even-handed justice.

Hone of the prescriptions pleaded by defendant are tenable.

Plaintiff’s counsel urge that the price of $20 per acre, put upon the land by the District Judge, is too low a valuation, and ask in their brief that the judgment be amended by increasing the valuation to $30 per acre.

But we find in the record no answer to the appeal, which was taken alone by defendant, praying for such amendment. This being so, no amendment can be made, even though the testimony as to the fact of value may warrant it, as to which we pass no opinion.

Judgment affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,695.
    Succession of E. Conery, Sr.
    Syllabus.
    1. Where it is shown that a sum of money, for which a particular individual is recognized as a creditor, actually belonged, or was due, to such individua1, and that it was collected by the decedent and placed to the credit of his individual account, in the firm of which he was a member, or in bank, the burden of proof rests upon those who oppose the payment of the claim to show that the obligation to make such payment, thus established as against the decedent, has been discharged.
    2. Where an administrator’s account consists, in part, of a schedule showing a large number of items, of rents collected and disbursements made, which latter have the appearance of being necessary and legitimate, and the oppo sition thereto is couched in general terms, general testimony as to the correctness of such items is sufficient.
    3. An administrator will not be condemned to pay the costs of an opposition levelled at bis entire account merely because such opposition is sustained with respect to some items in which he is personally concerned.
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

      H. Gibbs Morgan (Omer Villere, of counsel), for Mrs. Mary H. Conery, Plaintiff, Appellant.

      Howe, Spencer é Coche and McCloshey & Benedict, for Administra tor, Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The administratrix, pro tempore, of E. Conery, Jr., for whose interdiction a suit is pending, filed an opposition to the account of the administrator of this succession, in which she objected, specifically, to certain items, and objected, in general terms, without specification, to other items, which are included in a schedule annexed to, and made part of, the account. Subsequently, the opposition was withdrawn as to all the items specifically mentioned with the exception of four, viz: the commission of the administrator; two items in favor of the heirs of Mrs. Byrne, deceased wife of the administrator; and one item in favor of Edward C. Byrne. Upon the account, as filed, the administrator allowed himself a commission of 2%% on the total appraisement, according to the inventory, amounting to $184,491.77. It was objected that this amount included a claim against E. Conery, Jr., amounting to $93,674.84, and that the same was not due, and, hence, that the administrator was not entitled to a commission thereon. It appeared on the trial, however, that E. Conery, Jr., had made a cession of his property, and the judge a quo held, that, if the amount claimed was a debt, it was a bad debt, and sustained the opposition as to the commission claimed thereon. He also maintained the opposition as to several small items, amounting in the aggregate to $257.68, included in the schedule, which were opposed in general terms and were disallowed ; and he likewise maintained the opposition as to some few other items, similarly situated, amounting to $200.48, as to which there was judgment, as in case of non-suit. In all other respects, the opposition was dismissed. From this judgment, the opponent appealed, and her present contention is: (1) That the items allowed in favor of the heirs of Mrs. Byrne, and that in favor of Ed. C. Byrne should have been rejected; (2) That all the items on the schedule which were not established by proof should have been rejected; and (3) That the administrator, individually, should have been condemned for the costs.

There are two items in favor of the heirs of Mrs. Byrne, who was the daughter of the decedent. The one, for $346.65, represents a balance which remained on deposit in the Louisiana National Bank to the credit of Mrs. Byrne, after her death, and which was withdrawn by the decedent, by special arrangement with the bank, in order to avoid the opening of Mrs. Byrne’s succession, and was placed by the decedent to his credit in the firm of which he was a member. The other, for $505, represents a balance remaining in the hands of the decedent, and which was similarly disposed of by him, from a certain sum, of $1521.00, which he had collected for account of Mrs. Byrne, under a policy of insurance covering a certain- building, No. 421 Magazine street, of which she was the owner, which building had been damaged by fire; the remainder of said sum having been used by the decedent in repairing, or restoring, the building. The item in favor of Edward O. Byrne, who was the grandson of the decedent, represents $500, with accumulated interest, which had been given to said Byrne by his grandmother, in 1896; had been left with-the firm of which decedent was a member; and had been withdrawn therefrom-and placed in bank to the credit of his individual account. These facts are established beyond controversy, but it is said that there is not sufficient proof that the decedent had not, at some time or other, paid the amounts in question to the parties to whom they were due. The burden of proof as to such payment was upon the opponent, but the proof made by the administrator appears to us to be entirely satisfactory. Mr. Wood, a witness introduced on behalf of the administrator, testified that he had been the book-keeper, cashier and confidential man, of the decedent for more than thirty years; that he drew all of his checks, and paid all of his bills, after his retirement from business as well as before; that the amounts in question were placed to the credit of the decedent’s individual account, and that, so far as the witness knew, they were never paid by him to the parties entitled to them. As to the items contained in the schedule and opposed in general terms, and without specification, it appears that the succession owned a great many pieces of real estate, and the schedule represents $18,665.50 of rents collected from various tenants, and $9214.61 of disbursements, mainly on account of said real estate. In the course of the trial it was found that there were some items which were not properly chargeable to the succession, and the administrator, through his counsel, at once consented, and suggested, that they should be stricken off. Other items were considered doubtful and the court struck them off as in case of non-suit, as has been stated. The account, as a whole, is verified by the affidavit of the administrator, who placed himself on the stand as a witness, and was subject to cross-examination ás to his entire gestión. It was also verified, generally, by the witness, Wood, who was personally cognizant of the destination of most of the money paid out. Our attention has not been called to any particular item which is not considered established by proof, and we agree with the judge a quo that those items not stricken off are sufficiently proved. We also agree with the judge a, quo as to the costs, probably the largest item of which was incurred in investigating the claim of the succession against E. Conéry, Jr.' The administrator was obliged to file his account and it was his duty to place thereon, as assets, claims in favor of the succession, as it was, also, his duty, and his right, acting- in his official capacity, to place on said account such claims against the succession as he considered entitled to that recognition, whether due to others or to himself; and the fact that an opposition, directed against the entire account, should be maintained with respect to particular items in which he is personally interested ought not to make him individually liable for the costs of such opposition. An opponent who claims a large amount is allowed his costs, no matter for how small a proportion of such claim his opposition is maintained. Why should not the administrator be similarly dealt with?

We are of opinion that the judgment appealed from is correct, and it is, therefore, affirmed.


author: Monkoe, J.

text:
    No. 13,753.
    Jean Labat vs. H. Waldmeier.
    Syllabus.
    Where a party claims to have purchased a grocery and bar, but it appears that the vendor remained in actual possession and apparent ownership; that the lease and the licenses were unchanged; and that the barkeeper employed in the place was ignorant of the sale, and where no actual damage is proved, none will be allowed, for a seizure, under a judgment against the vendor, which did not interfere with the business and was released after forty-eight hours. The seizing creditor was not at fault, under the circumstances, in assuming that the judgment debtor was still the owner of the property.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Albert Voorhies, for Plaintiff, Appellant.

      E. E. McOaleb, Jr., for Defendant, Appellee.
   The opinion of the court was delivered by

Monkoe, J.

The defendant obtained judgment against Mrs. A. Delbasty for twenty-six dollars, under which he caused a certain grocery and bar-room to be seized. The plaintiff, thereupon, filed an affidavit with the constable, claiming ownership of the seized property, and the constable demanded a bond of indemnity from the seizing creditor, and, upon his failure to furnish the same, released the seizure. Some ten days later the seizing creditor (defendant herein) took a rule on the plaintiff and the constable, ordering that'they show cause why he, the mover, should not be dispensed from furnishing the bond of indemnity —on the grounds that the affidavit filed by the claimant did not conform to the law and that the sale therein mentioned — being the sale to said claimant of the property which had been seized, was fraudulent and simulated. What disposition was made of this rule does not appear. Thereafter, in May, 1898, the present action was brought, in which the plaintiff claims damages, to the amount of $2010.00, alleged to have been sustained by him by reason of the proceedings above narrated. There was judgment in the court a qua rejecting his demand, and he has appealed. It appears from the evidence in the record that prior to March 10th, 1898, the grocery and bar in question were owned and conducted by Mrs. Delbasty; in whose name the property was leased and the licenses issued. It is claimed that, upon that day, she sold the establishment to the plaintiff for $1200.00 in cash, which is said to have been paid to her in bills of different denominations. There was, however, no apparent change of ownership or possession. The barkeeper employed at the time was not made aware of the sale; the landlord was ignorant of it; the licenses remained in the name of Mrs. Delbasty, and she remained in charge of the business. And this was the condition upon the 13th of April, when the seizure was made, under the writ against Mrs. Delbasty, for $26.00. It further appears that the keepers appointed by the constable were in the establishment for a couple of days, but that they disturbed nothing, and, in no way, interfered with, the running of the business, and, so far as the record shows, that their presence was unknown to any one save the parties interested. If the plaintiff sustained any actual pecuniary damage he has failed to prove it, and, in fact, has made no attempt to do so. Under these circumstances, assuming that the sale to him was a bona fide transaction, his leaving the vendor in possession and acquiescing in her being still held out as the owner, authorized the presumption that she was what she appeared to be, and the defendant was not at fault for acting on that presumption.

Judgment affirmed.


text:
    No. 13,814.
    Independent Ice & Distilled Water Manufacturing Company, Limited, vs. J. S. Anderson.
    Syllabus.
    1. Where a sale of shares in an incorporated company is made in such amount as to transfer the company into new hands, and in the sale reservation is made, in behalf of the selling stockholders, of a certain claim of the company then in litigation, and the company as newly organized ratifies this reservation, the point that it is the sale of a litigious right is not good.
    2. Under the prayer for “such general and' special relief as the nature of the case requires and law and equity grant,” it is competent to render judgment in favor of plaintiff for the value of the movable property the ownership of which was the matter at issue, it being shown by the testimony that the defendant had sold the property and collected the price.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      William, F. Brewer and Parkerson & Tobin, for Plaintiff, Appellant.

      William S. Benedict, for Defendant, Appellee.

      Buck, Walshe & Buck, for intervenor, Zetzman, and defendant, Anderson, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

This is an action to recover certain machinery, the ownership of- which is claimed by plaintiff.

The allegation is made that defendant has the same unlawfully in his. possession and refuses to deliver it to the petitioner.

Sequestration of the property was prayed for and granted.

William'Zetzman intervened, asserting in himself ownership of the machinery by purchase from the agent and duly authorized manager of the plaintiff company. He prayed for judgment recognizing his ownership and placing him in possession.

Dr. W. Thompson appeared in the case, alleging he had acquired all the rights of the plaintiff company in and to the suit and the cause of action upon which it is predicated, and prayed to be substituted as plaintiff and to be subrogated to all the rights therein of the original plaintiff. This was done.

Whereupon, defendant, Anderson, pleaded, as peremptory exception, that the transfer to Thompson was the assignment of a litigious right, and having been made -without any consideration paid or promised, he is entitled to have the suit dismissed, and prayed accordingly.

The facts were these:—

The stock of the plaintiff company was represented by 150 shares, of which Dr. Thompson (subrogee plaintiff) held 97 shares, Anderson (defendant) 50 shares and three other parties one share each.

Thompson, in January 1899, sold out his entire holdings to Zilker, Brackenridge and McGaw, three outside parties, and resigned from all official connection with the company.

The persons holding one share each likewise sold to the same parties and resigned from the company.

Later, Anderson disposed of his stock to the same parties.

At the time these sales were effected, and these- changes in the personnel of the shareholders were made, the present suit was pending.

The parties who had bought the stock from Thompson and his associates became officers and directors of the company in place of those they had succeeded, and the company, as thus newly organized, by act of its Board of Directors, subrogated Thompson to all the right, title and interest of the corporation in t'he suit and authorized him to prosecute the same, in the name of the company, to final judgment.

In addition to the price paid Thompson by Zilker, McGaw and Brackenridge for his shares of stock in the company, it is shown by the testimony that Thompson, in making the sale of his shares and that of the three other parties who held one share each,- stipulated for the reservation of the claim then forming the basis of the suit as an asset of the stockholders. That is to say, as an asset which was not to pass to those then buying the stock, nor to remain as property of the company, but be reserved to the then shareholders, who were Thompson holding 91 shares, Anderson holding 50 shares, and the three parties holding one share each.

This is testified to by Thompson and admitted by McGaw, also a witness, and who was one of the purchasers of the stock.-

Objection was made to this evidence and a bill to its reception reserved. We think it properly admitted.

If it be said that the claim upon which the suit was pending was an asset of the company and that neither the selling shareholders nor the purchasing shareholders were entitled thus to dispose of a company asset, a sufficient answer is that neither the company, nor its present shareholders, are making complaint and they are the only parties having an interest to do so. Besides, the company, through its new Board of Directors, have formally ratified the reservation thus made.

Anderson, having long since disposed of his stock, and becoming thereafter a stranger to the corporation, and being now neither a member of the company nor a shareholder, is not in a position to object to the reservation stipulated for by Thompson.

Besides, it was a reservation in his interest. He was then a shareholder, and Thompson’s statement is. that he reserved the assets for the then stockholders.

Had the reservation not been made, the company as newly constituted could have prosecuted the suit to final judgment and if recovery had been decreed, Anderson would have had to pay the entire judgment, whereas now he is entitled to the.benefit of a credit to the extent of thq number of shares held by him compared with the whole number of shares that were then outstanding.

.This reservation by Thompson takes the case out of the category of a litigious right transferred, and the exception should have been overruled entirely and the ease proceeded with on its merits.

The trial court sustained the exception in part and overruled it as to Thompson’s interest, which was held to be ninety-seven one hundred and fiftieths (97-150) of the claim in litigation.

The ease was tried on its merits as to Thompson’s interest with the result that there was judgment in favor of the intervenor decreeing him the owner of the machinery. As between Thompson, the subrogee plaintiff, and Anderson, the defendant, there was judgment rejecting the plaintiff’s demand, reserving, however, to Thompson the right to sue Anderson for his due proportion of the price paid by the intervenor to Anderson for the machinery, which price the judgment declares wa3 collected by Anderson.

Thompson appealed.

In this court Anderson files answer to the appeal, praying amendment of the judgment by striking therefrom the reservation of the right to Thompson to claim from him any part of the price of the machinery.

And treating the judyment n 11> i exception as included in the appeal. Anderson prays that it be amended so as to maintain the exception in its entirety. ■ •

As to the intervenor, Zetzman, the case is made out. The testimony shows that he purchased the machinery from Anderson, acting for the company as its manager, and paid for it $2000. Anderson was authorized to make the sale, and, further, a state of facts is shown amounting to ratification of the sale by the company and its officers.

As between Thompson and Anderson the case was not decided correctly.

The Ice Company, it is true, sued for the machinery and its main prayer is that it be awarded the ownership and possession thereof. But there is a further prayer “for all such general and special relief as the nature of the case requires and law and equity grant.”

Under this latter prayer, where it appears that the machinery has been sold by Anderson and its proceeds collected by him and not accounted for to the company, it i's entirely competent for judgment to be rendered against Anderson in respect to the same.

The proceeds took the place of the machinery and the rights of the parties litigant in respect thereto can well be determined and adjudicated herein'without resort to further litigation.

Anderson either owes Dr. Thompson the value of his interest in the machinery, or Ms just share of its proceeds — that is to say, if he has not already accounted for the same to the company, as he claims to have done — and this issue can be passed upon here and now.

In Smith vs. Corcoran, 7 La. 46, it was held that:—

“Under the prayer for general relief suited to the nature and justice of the case, the Supreme Court will render such judgment as would be given in a new suit, to avoid circuity of action.”

See also Bradford vs. Clark, 7 La. 147; McDonald vs. Vaughn, 14 La. Ann. 716; Edwards vs. Smith, 10 La. Ann, 536; Werner vs. Richardson, 5 La. Ann. 646.

We find that Anderson collected the price of the machinery from Zetzman and that he has not accounted for it nor paid it over to either ¡'he Ice Company, nor to Thompson, certain entries upon the cash book and ledger of the Ice Company, to tiro contrary notwithstanding.

Thompson so testifies and we do not understand Anderson as denying this on the stand. If, however, we be mistaken in this, and anything appears in the testimony of Anderson seeking to establish that he has accounted for the moneys so collected, no credence is given to the same. A witness who unblushingly admits on the stand, as he did, that he had deliberately lied to Zetzman in a material matter in order to effect the sale of the machinery to the latter, and then seeks to excuse his conduct on the ground that lying is justifiable “in business,” is unworthy of belief in a court of justice when testifying in Ms own interest. None but the depraved maintain the vicious doctrine that lying in business is legitimate, and tMs court will reject the evidence, given in Ms own behalf, of any man who confesses that such is Ms belief and practice.

Anderson, in Ms answer filed, makes the averment that Thompson was owner of two-thirds and he (Anderson) of one-tMrd of all the property and assets of the Ice Company. TMs is a judicial allegation to which he will be held.

The amount he collected from Zetzman for the machinery was $2000. Thompson’s interest in same, according to Anderson, is two-thirds — or $1333.33% — and for this amount he is entitled to judgment herein against Anderson, with legal interest from December 23, 1897, the date of the filing of the suit.

It is, therefore, ordered and decreed that the judgment appealed from, in so far as the intervenor, William Zetzman, is concerned, be affirmed, but avoided and reversed in so far as it adjudicates the issues herein raised between Dr. W. Thompson, plaintiff by subrogation, and the defendant, J. S. Anderson.

And it is now adjudged and decreed that the said Thompson do have and recover of the said Anderson the sum of one thousand three hundred and thirty-three and 33-100 dollars, with legal interest thereon from December 23,1897, together with costs of both courts.

(Provosty, J., takes, no part.)

Rehearing refused.


text:
    No. 13,788.
    Elias A. Pharr et als. vs. M. L. Broussard et als.
    Syllabus.
    t. Where three persons are operating under a contract whereby one of them furnishes trees,' upon land believed to be owned by him, another furnishes money, and the third, labor, whereby said trees are to be placed on the market, as timber, and the profits are to be divided ; and the two parties last mentioned take advantage of what is apparently a technical defect in the title of the other, to enter his land for themselves, taking patents therefor, but are subsequently cast in a litigation upon the subject of the title, they do not occupy a particularly strong position from which to appeal for equitable consideration.

      %. Upon the facts, as presented in this case, the plaintiffs are held not entitled to recover money expended by them in deadening, topping and trailing trees, upon land owned by the defendants.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Weeks, Judge ad hoc.

      Andrew Thorpe and Thomas H. Thorpe, for Plaintiffs, Appellants.

      Broussard, Dulany & Dunbar, for Defendants, Appellees.

      Robert Martin, for Levert & Martin, called in warranty, Appellees.
   The opinion of the court was delivered by

Monroe, J.

In August, 1895, M. L. Broussard and Hazard Vaughn (made defendants herein) brought suit in the District Court for the Parish of Iberia, claiming to be the owners, in possession, of certain swamp lands in that parish, and alleging that Elias A. Pharr and Herman H. Shadel (the present plaintiffs) had, without color of right, removed therefrom a lot of the timber, and had deadened and felled thereon a number of trees, which they were likely to remove unless restrained, and they prayed that said parties.be injoined from further entering upon said land and from further deadening, felling, or removing said timber, and for a writ of sequestration, directing the sheriff to seize the timber already deadened and felled, etc. The defendants answered, setting up title and claiming that, in any event, they ought to be reimbursed the money expended by them in deadening and topping the trees and in doing certain work preparatory to their removal. Upon the issues as made up, there was a trial which resulted in a judgment for the plaintiffs, decreeing them to be the owners of the land, maintaining the injunction, and reserving the rights of the defendants with respect to their claim for reimbursement; and the judgment so rendered was affirmed on appeal to this’court. Broussard et als. vs. Pharr et als., 48th Ann. 230. Thereafter, in July, 1897, the defendants in that case brought the present action against their former adversaries upon substantially the same claim which they had set up in their answer to the suit against them, but which had not been passed upon; and they here pray judgment for $2026.45, as the aggregate amount expended for deadening, felling, topping, trailing and retrailing trees, and for the making of “pull roads,” of all of which work, they allege that the defendants have derived the benefit. The defendant, M. L. Broussard, was dismissed from the case, before trial upon the merits, upon an exception to jurisdiction ratione personae, and there appears to have been no appeal from the judgment whereby said.exception was maintained. As between the plaintiffs- and the other defendant, Vaughn, the case stands as follows, to-wit:

Junius Sampson held the land in .question, as owner, by virtue of a title which traced back, through mesne conveyances, to two certificates issued by the Begister of the State Land Office, March 3rd, 1847, followed by the location of the land and the registry thereof,- March 6, 1847, but no patent had issued. In 1883, he entered'into a verbal agreement, which was followed, on October 10th, 1884, by a written contract, with Pharr and Shadel, the plaintiffs herein, viz:

“State of Louisiana — Parish of Iberia.
“Enow all men by these presents, that we, Junius Sampson, Herman Shadel and E. A. Pharr, all- of the parish and State aforesaid, have this day entered into the following agreement, to-wit: The said Junius •Sampson to furnish the cypress trees growing and standing. in his swamp in this parish, the said Shadel to cut down and float this timber, and said Pharr to furnish all the money necessary for that purpose to said Shadel. And the said Pharr hereby binds and obligates himself to receive and to páy for all timber floated by said Shadel the sum of six dollars per thousand feet, it. being well understood by the parties hereto that, after deducting all-expenses for cutting down, floating, etc., of said timber, the net profit- remaining from the sale of same at above stipulated price is to be equally divided between' them.”

The parties carried on business under this contract for several years, •until it came to the knowledge of Pharr and Shadel that Sampson, though his title, and that of his authors, had been of record for more than forty years, had never obtained a patent, and that there was a possibility that the land might still be purchased from the' State, as swamp land; and, whilst their contract with Sampson was still in force, they succeeded in obtaining such titles from the State, and' afterwards informed Sampson of what they had done. The evidence as to the details is somewhat obscure, part of the land.having been entered by St. Martin and Toffier, who sold to-Pharr and Shadel, and part of it having been entered by Gates, who sold to Todd, who sold to Pharr and Shadel. Shadel, however, in his testimony, speaks of having bought the land -from the State. Thus, he says: ' • •

‘T notified Mr. Sampson as soon as I bqught the land from the State. Sampson told me that, though the title he had was good, for me to continue my work — if the land was mine I would have my work done, and if the land was his I would work under the same contract. Mr. Warren was, with Mr. Charles Gutterkuntz, the surveyor, surveying the land, hunting out which was the best piece of land.. I found that they were trying to enter the land which I had contracted to work under Sampson’s contract. I went out to see Sampson and notified him of the fact, he, not being home, being in the city at the time, I got Mr. Todd and Gates to enter some of the same lands which Sampson claimed. When Sampson returned, I informed him of what I had done,” etc.

And, thereupon, it appears that there was an agreement that the question of title should be submitted to arbitration, and if Sampson’s title was sustained, the partnership contract was to hold good, whereas, if Pharr and Shadel’s title was sustained, the partnership was to be considered at an end. The idea of the arbitration was, however, never carried out. After entering the lands, as stated, Pharr and Shadel continued to work them, but they divided no profits with Sampson. In fact, the latter says, in his testimony (given in 1895 on the former trial) : “The last credit given me by Pharr and Gall (Shadel) for my share of timber taken from the swamps was about ten years ago.”

Such being the situation, Sampson, upon March 11, 1895, sold his entire place, including the swamps in question, to Levert and Martin. And upon April 10th, following, Levert and Martin sold the property here in controversy to Broussard and Vaughn, the defendants, for $2000; and Broussard and Vaughn, after selling part of the timber, sold the land to M. J. Voorhies and others for $1000.

The contract between Sampson and Pharr and Shadel was not so recorded as to operate as an encumbrance upon the property, or as a notice to any vendee to whom Sampson might choose to sell. Levert and Martin, therefore, acquired a clear title, so far as the present claim is concerned, and sold to Broussard and Vaughn in the same way. Martin, testifying upon the subject, says:

“Before J. B. Levert and myself purchased Marshfield plantation, of which the swamp lands described in plaintiffs’ petition form a part, we engaged the services of Messrs. Foster & Broussard, attorneys of the defendants in this suit, to look up the title to Marshfield, and their written report shows that the titles thereto were good, and that there was no recorded contract or lease, on file, and of record in the Recorder’s office of Iberia parish, affecting any portion of Marshfield plantation. Mr. Levert and myself bought the Marshfield plantation on March 11, 1895, from Mr. Junius Sampson; that neither at that time, nor pre-' vious, or since, has Mr. Sampson, or any one else, informed either Mr. Levert or myself of any contract or agreement made with plaintiffs in this suit relative to said swamp or anything else. Neither I nor Mr. Levert had, at any time, any knowledge of work having been done on said lands by the plaintiffs herein.”

It further appears from his testimony that he and Levert bought the property in order to divide and sell it; that, after buying it, he employed Broussard and Vaughn to inspect the swamps and report upon their value; that they reported that they were worth $2000, and, after trying to get a better price elsewhere, Levert and Martin sold said swamps to Broussard and Vaughn at that price. Mr. Martin says: “It may be that, at the time they reported the value of the swamps, they stated that there was deadened and trailed timber thereon, but, in selling them the swamps, I did not take that into consideration; our deed shows for itself. If they did state to me, at the time, that there were deadened trees in the swamps, I would not have noticed it, because I know that, for quite a number of years, depredations and trespasses have been, and are being, committed on swamp land in that section of the country, under pretended titles, both on private and public lands. I certainly would not have sold the swamps for $2000, on credit, if I had known that there were trees on it worth $17,500.00, as alleged in suit 2406, especially as we bought the land as a speculation, to sell it in pieces, and not to keep it as a whole.”

And, it also goes without saying that he would not have sold the land to Broussard and Vaughn for $2000, on credit, if he had supposed that he would, or could, be called on to pay them, in cash, the $2026.4», which is here claimed by them in their call in warranty.

And so, with regard to Broussard and Vaughn. They bought the property from Martin and Levert, and if the latter acquired a clear title from Sampson, and imposed no incumbrance on it, it follows that their vendees acquired a clear title from them. And neither vendors nor vendees were obliged to go outside of the mortgage and conveyance records for the purpose of inquiring, by whom, or for what purpose, .the trees had been deadened and trailed, and the “pull roads” made. It may be remarked here that when the patents under which the plaintiffs claimed title were issued, the State Register of Lands warned the applicants that the lands had probably been located and that they entered said-lands at their own risk; and when Broussard and Vaughn, having acquired title from Martin and Levert, applied for patents, that official recognized their right to the same and issued the patents, at the same time notifying the parties to whom the patents had been previously issued- to return the same for cancellation. These matters are thus referred to in the opinion in the 48th Annual, to-wit:

“The testimony of the Register of the State Land Office was taken under commission and the purport of his evidence is, that -the patents upon which the defendants base-their title were issued by him to the defendants’ vendors under the impression that the land had (not ?) been previously located and confirmed by the Secretary of the Interior. That, notwithstanding the records of- his office did not, at the time, exhibit any evidence that such location had been made, he was under the belief that such was the fact, and that he so informed the applicant and he agreed to accept the patents at his own risk. That, when the aforesaid exhibits and proofs of the prior location of said lands were presented to him, he became satisfied that the patents he had issued were erroneous, and he thereupon issued the patents of the defendants, and gave the first patentees due notice thereof.”

Broussard et als. vs. Pharr et als., 48 Ann. 235.

If, upon being informed óf the claim set up by his partners, SampsoD had brought suit in vindication of his title, and had obtained judgment, as did Broussard and Vaughn, declaring that title to be good, the position of the present plaintiffs with respect to their claim for disbursements inuring to the benefit of the owner would have been somewhat stronger, though it must be admitted that, in view of the relations subsisting between them and Sampson, at the time of their acquisition of the adverse title to his land, that position is not a particularly advantageous one from which to make an appeal to a court of equity, nor is it improved when wé consider that they had been'operating upon his land, for about ten years before the filing of the former suit, for their own benefit and to his exclusion.

As the matter stands, however, the sale of the property by Sampson to Levert and Martin, and by Levert and Martin to Broussard and Vaughn, introduces another element into the case. These vendees are, to say the least of it, quite as innocent and quite as much entitled to equitable consideration as the plaintiffs, who, having taken no steps to dispossess Sampson, under the adverse title set up by them, were, virtually, held by the judgment in the first suit to have been mere disturbers of the possession of the lawful owners.

In the matter of Lumber Co. vs. Shadel et al., 52 Ann. 2094, involving part of one of the same sections of land which is the subject of the present controversy, the defendants (being the same parties who are plaintiffs here) were held to have been possessors in bad faith, and the claim which they there set up for reimbursement of expenses incurred in deadening trees, etc., allowed in the lower court, was rejected by this court. For the reasons which have been stated, the instant case appears to be somewhat stronger against them than the ease thus referred to, and the judgment of the court a qua rejecting their demands is affirmed.


author: Breaux, J. Blanchard, J.

text:
    No. 13,512.
    Lake Charles Ice, Light and Waterworks Company vs. City of Lake Charles.
    Syllabus.
    1. Ultra, vires is defendant’s principal ground of defense in an action for .the water and light supplied under a contract of lease.
    2. A special tax was assessed to meet the expense in part. As to the remainder, which was not provided for by this tax, budgets were adopted looking to the setting aside of a special fund to meet the instalments as they fell due.
    3. In so far as the tax-payers have paid this tax and in so far as they have paid in accordance with the requirements of the budget, the defendant is bound to remit to the plaintiff by whom it has been earned.
    4. The first act of incorporation, viz: the charter of 1807, was a legal charter, and the municipal officers acting under the authority conferred were, at . least, officers de facto, with power enough to incur liability and bind the municipality by contract as lessee to secure light and water.
    5. The amendment of the charter of 1867, though illegal, did not have the effect of placing the city in a situation to deny its indebtedness to its servants. The municipality had implied power to contract as lessee for light and water.
    6. The last statute, amending the act of incorporation of 1867, looked to the payment of amounts earned by employes of the city by giving original life and vitality to the original charter which had never been repealed and by reinstating, as far as possible, the municipality in all its rights, and including corresponding liability in its terms, to the extent that the legislative will could thus bind municipal'action.
    7. The taxes not collected, which the defendant company had substantially agreed to receive in part payment and which the city was unable to collect because of errors of form in manner of attempting to enlarge her limits, are deducted from plaintiff’s claim.

      APPEAL from the Twelfth Judicial District, Parish of Calcasieu— iiead, J.

      Pujo & Moss for Plaintiff, Appellant.

      Winston Overton (Fenner, Henderson & Fenner, of Counsel)', for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

On application for rehearing by

Blanchard, J.

Breaux, J.

Plaintiff brings this suit for the sum of fifteen thousand and fifty dollars, with interest, for supplying water and light, to the city of Lake Charles. Two contracts to this end were entered into, both dated in 1891.

In November of that year, the town council took steps to secure a water supply and, to that end, entered into one of the contracts with the plaintiff company which was not to be considered as completely binding before holding a taxpayers’ election. The election was called, and resulted in favor of the tax. By the terms of this contract, the city became the lessee of a number of hydrants from the defendant company. The city, by special ordinances, obligated itself to appropriate and set aside, each year, an amount sufficient to pay for the year’s supply of water.

Plaintiff performed its part of the contract from October 1st, 1892, to the date of the trial of this suit in the District Court, and the defendant, without objection at any time, received the water supplied. The number of inhabitants and the wealth of the city increased, whether owing to the attraction of the pleasing shores of the lake of the same name and the many advantages which the locality affords, or to the water supply and light furnished by the plaintiff company, we will not stop to enquire, although incidentally referred to in the argument.

The other contract, before maintained, entered into the same year between the city and the plaintiq company was for light. The council, in matter of the details of this contract, did hot submit the question of taxation to the taxpayers, no election by the taxpayers was held to assess the amount, as we infer after having read the voluminous record before us. An appropriation was made and provision adopted to set aside an amount to pay for the light during the fifteen years which the plaintiff bound itself to furnish light to the city.

Defendant attacks these contracts, and urges, in defense, that they are illegal and not binding upon the municipality for the reason that the corporation, the defendant, sought to create by the amendment to the town charter attempted in 1881 and again in 1891 was not warranted by the law and that it never had any vitality either as a de jure or de facto corporation and was without authority to create obligations and incur debts; that the officers, after these amendments had been 'adopted, were neither de jure nor de facto officers.

The legal history of the controversy takes us back to the act of incorporation of the town of Lake Charles in the year 1867. In the charter then granted, the limits of the town are well defined. The town was invested with such express powers as were nearly always inserted in acts qf incorporation of municipalities in those days. While there was general power in the charter and a number of special powers delegated, there was none expressly granted to provide for the supply of water and light. Owing to the growth and improvement of the city, in 1881, the thinly inhabited town had become a prosperous little city, and an amendment to the charter of 1867 was submitted to .a vote of the citizens. It was adopted, and the limits of the city were extended so as to embrace considerable additional territory and include, as residents within its limits, an additional large number of voters and tax-payers. The municipality continued in the exercise of its jurisdiction under the original charter and this amendment without change, until 1891, in which year another attempt was made to amend the charter. Both attempts to amend the charter of incorporation proved of no avail. The court decided that they were abortive and completely illegal; that the claim of the corporation of having enlarged its territory according to law was unfounded, for the reasons stated in the opinion. Dees vs. City of Lake Charles, 50 Ann. 356. The defendant now contends that the only municipal corporation which ever had any legal existence was the town of Lake Charles created by its legislative charter of 1867, having no powers except those delegated by that charter, covering no territory except within the limits therein defined, having no other inhabitants than those living in that territory, and no officers except those elected and qualified according to the requirements of that charter; that, in consequence, it became necessary to relieve the' city from the state of suspended animation in which it had existed since the attempted adoption of those amendments and to revive its corporate activity, to have officers appointed competent to represent it and to administer its municipal functions; that the officers of the asserted corporation retired and abdicated and the Governor exercised his appointive power and filled the vacancies; that the officers appointed took charge and administered municipal affairs until the election day fixed in the charter arrived, and then a Mayor and five couneilmen were elected by the people of the corporation; that this body refused to recognize the contracts sued on, or to make any provision for their payment.

After all this, by valid proceedings, the charter of 1867 was legally amended, the limits extended, the name changed, and the amended charter adopted. (See Act of 1899.)

Defendant insists that the contracts sued on, because of the informality decreed in the cited case, are not bincKng.

Plaintiff calls our attention to the fact that the change contemplated by the proceedings of 1884 was to annex additional territory and that in other respects the charter of 1867 remained as it originally was, and that the legislative proceedings of 1899 alone, amended the act of incorporation of 1867. Section 8 of the amendment sets out that the municipality shall have all the powers granted under the original charter of 1867, as though the territory annexed had formed part of the territory under the old charter. This provision of the statute has, in our view, an effect which should not be overlooked in passing upon the rights of the parties. The legislative intent evidently was, as far as possible, to remedy the informality which had crept into the proceedings under which an election was held to extend the limits of the city, as before stated. If effect be given to this language of the statute, it follows, in our view, that creditors were to be protected in their claims.

Referring to the charter of 1867, and the powers delegated/ the defendant urges that it embraced no power authorizing the municipality to make provision to supply the city with water and light. "We agree with the statement that the power was not expressed, but we aré decidedly of the opinion that it may fairly be implied that the municipality did not act beyond its powers in so far as it made suitable provision for lighting the streets and for supplying the public with water. Those, in modern cities, have become essential improvements. Lights lessen the opportunity for committing crime, and go far toward preventing disorder. They assist the police authorities in enforcing the ordinances and laws arid afford, in many respects, better protection to the owners of property, and add enjoyment to life not felt in dark and gloomy streets where lights are dim and total darkness prevails.

The other claim is covered, we have seen, by a contract having in view the supply of water to the city, as important to the general welfare and interests as lights. They are directly conducive to good health and to the preservation of property in the event of fires. The amount plaintiff seeks to recover is due for supplying wholesome water. The importance of such a supply, to the extent that it is needed, cannot be exaggerated.

A municipality would fail of-the purpose intended in its organization, if it failed entirely in taking such steps as are necessary to obtain enough water and sufficient light. They are intimately connected with its existence, if the purpose be to provide efficient systems when necessary in administering public affairs. There are decisions by this court, and by the courts of sister States, recognizing this important right of municipalities. We are not inclined to curtail a right as important and indispensable by deciding that express words must be used in order to warrant its exercise. It is sufficiently granted, in our view, if the corporation is invested with the powers contained in the charter before us for interpretation. We find ample support in the following decisions: Conery Jr., et al. vs. Waterworks Co. et als., 41 Ann. 910 (922); New Orleans Gas Light Co. vs. City of New Orleans et als., 42 Ann. 188.

This being our conclusion regarding the power .delegated by the charter of 1867, we take up for decision the liability of that portion of •the corporation included within the limits of this charter. The testimony before -us clearly sets forth the number of hydrants, leased by plaintiff to the defendant that were within the limits of .the-corporation prior to the first amendment in 1884, also the number of lights furnished. The amount due for the service within the old corporate limits is easily separated from the amount due for services outside of those limits, i. e.-, for such services in the new limits. ■

The Mayor and five of the directors were residents within the old limits. As relates to domicile, no good ground of objection can arise regarding their authority. They, as relates to territory, held under the charter, and although they were elected' by votes, in part, of voters residing outside of the limits, yet they were officers of the town in charge of the administration of the municipal affairs. They were not acting under a charter illegally adopted. They filled a vacancy in the offices de jure of the corporation. They, in consequence, in our view, were at least officers de facto. We are firmly convinced that as to the water and lights furnished to the city within the old limits, the defendant is liable for the amount to the extent-of light and water furnished.

Extending our enquiry a step further, we are led to inquire into- the claim for light and water furnished in lighting the streets and supplying water outside of the corporate limits as fixed by the amended charter of 1884 and 1894. The defendant succeeded legally to the corporation of 1867 and is liable for all legitimate debts contracted under the charter of that date, to repeal which, in its entirety, no attempt was ever made, either by the amendment of 1884 or that of 1894. These claims, we think, are due by the corporation. We have seen that to pay a part of the amount, a tax was assessed and in great part collected. As relates to the tax collected, the defendant is scarcely in a position to retain an amount which has been specially collected, as far as it will, to pay the claim of plaintiff. The taxpayers have received the benefit of this light and water and have paid therefor. While it is in Dransitu from the taxpayer to the plaintiff creditor, it would hardly be equitable to turn it aside and apply the amount collected to another indebtedness of the corporation. It became the money of the defendant for a particular purpose.

The defendant should pay it over as was intended when the collection was made. It may be said that this is true only of part of the fund, that as to the remainder, no provision was made for its -payment by submitting the question to the votes of the taxpayers.

We have seen that those in office during- the time for which plaintiff sues, bound themselves by the contract entered into between these parties, to collect from the taxpayers and set aside an amount sufficient to pay this tax. Budgets were adopted to that end, showing the amounts needful for its payment. The taxes were paid or provided for in those budgets to meet the expense account. We understand that, year after year, as shown by the budgets, the defendant collected an amount to be expended especially in meeting this account for rent.

The defendant has no authority to change the destination of the fund as budgeted on the ground of informality in extending the city limits. The amount was earned, and no good reason presents itself to stop its payment. The act of the Board was, after all, the act of the city. Here, an equitable question presents itself, relating to the rights of the defendant. The special tax has not all been collected, in great part, because of the defense of a tax-payer against the tax, and a judgment pronounced in the suit. To the extent that this tax has not been collected, because of this decision, we think that the defendant is entitled to relief. The budget and the other proceedings of the council were based, to some extent, on the recovery of this tax. The city should not be made to account for an amount not collected, nor for an amount which was not set aside for the payment of this tax and which the city has not, chiefly because of adverse litigation, succeeded in collecting. The following is an excerpt from the brief of counsel for plaintiff: “We do not for a moment concede that plaintiff is in any way responsible or chargeable with the failure to collect the special tax, or that the city is entitled to recover for such sum.” Counsel added, in substance, that should the court entertain a different view, proper credit will have to be given. • The court thinks that this credit would be equitable and just, and, for that reason, the decree will so order.

We will not, in these proceedings, seek to give vitality to the contract to the end of the term. Other issues may arise and will have to be considered before pronouncing judgment on that question.

It is therefore ordered, adjudged, and decreed, that the judgment-appealed from is avoided, annulled, and reversed.

The law and the evidence being in favor of plaintiff, it is ordered, adjudged, and decreed, that plaintiff have judgment for the sum of fifteen thousand and fifty dollars, with five per cent, interest on one thousand and eighty-five dollars thereof from October 1st, 1897; on one thousand and eighty-five dollars thereof .from January 1st, 1898; on one thousand and eighty-five dollars thereof from-April 1st, 1898; on ■one thousand and eighty-five dollars thereof from July 1st, 1898; on one thousand and eighty-five dollars thereof from October 1st, 1898; on one thousand and eighty-five dollars thereof from January 1st, 1899; on one thousand and eighty-five dollars thereof from April 1st,-1899; on one thousand and eighty-five dollars thereof from July 1st, 1899; on one thousand and eighty-five dollars thereof from October 1st, 1899; ■on one thousand and eighty-five dollars thereof from- January 1st, 1900: on six hundred dollars thereof from June 1st, 1898; on six hundred dollars thereof from September .1st,. 1898; on six hundred dollars thereof -from December 1st, 1898; on six hundred dollars thereof from March 1st, 1899; on six hundred dollars thereof from June 1st, 1899; on six hundred dollars thereof from September 1st, 1899; and on six hundred dollars thereof from • December 1st; 1899, until paid and all costs of the suit, subject to a credit of that part of the tax of a mill and a half which the city did not succeed in collecting.

The case is remanded only as relates to this credit. The court a qua will, after the case -shall have been remanded, ascertain the amount of the one and a half mill special tax not collected, owing to the failure to collect because of the adverse decision to its collection from those by whom it was due (as said decision was a test case, the court understands,) and after proper credit given, the present decree will'be subject to no other change.

In all other respects, the rights of the plaintiff and defendant are reserved.

On Application for Rehearing.

Blanchard, J.

The charter of the town of Lake Charles adopted in 1867 contained the grant of power to the municipality to construct public works. Under this authority, the town could erect, maintain and operate a waterworks system requisite for supplying water for flushing streets and gutters, for extinguishing fires and for all other public purposes, and could erect, maintain and operate an electric light plant requisite for lighting the streets and public places of the town; and this carried with it by necessary implication the lesser power to contract for supplying the' town with water and lights needed for public purposes.

The town of Lake Charles, as organized under the act of 1867, never ceased to exist until it was merged into the city of Lake Charles as now existing and as incorporated by the amendments adopted in 1899, and the city of-Lake Charles as thus latterly incorporated is held to be the legitimate successor of the town of Lake Charles as it existed under the charter of 1867, and as it existed under that charter as attempted to be amended and extended in the years 1884 and 1894.

Municipal corporations cannot extinguish their debts by changing their names, or enlarging their limits and powers, or organizing under new charters. A debt once contracted by a municipal corporation will survive as a 'debt against whatever corporate entity is subsequently created to take its place, at least to the extent that the new or enlarged corporation absorbs the old, and, certainly, to this extent the obligation of the contract remains intact and cannot be impaired.

The water and electric light contracts made by the municipality with plaintiff corporation must, therefore, he held to evidence valid obligations binding at least upon all the inhabitants and' all the property within the territorial limits of the town of Lake Charles as defined by the act of 1867, to the extent that water and electric lights were supplied for the purposes of the municipality within such limits, under the contracts.

And to this extent the defense of error of fact and law, pleaded as relieving the town of Lake Charles from liability under the contracts, cannot be entertained.

The fact that persons who did not reside in the old limits may have voted for the election of the Mayor and Aldermen in office at the time the contracts were let, and may, too, have voted for the special tax, has no bearing, unless defendant has shown, which it has not done, that the votes of such persons would have changed the result of the election. Paine on Elections, Sec. 510.

It may be that the town in making the water and light contracts erred and went beyond its authority in extending the benefits of the same over territory beyond its limits. But the effect of this, in our view, is not to destroy the contracts themselves, in so far as the town proper was concerned, but to limit the liability of the corporation under the same to water and lights supplied it under the contracts within its true territorial limits.

This is what the judgment of the court practically does when it decrees recovery against the corporation for the amount claimed, subject to a credit to the extent of the avails of the special tax levied on property outside of the limits of the corporation as defined by the act of 1867, which, up to the institution of this suit, the authorities had not been able to collect on account of the adverse decisions of the courts. It is not considered that any allowance of credits further than this should be made.

Eehearing denied.


author: Breaux, J.

text:
    No. 14,006.
    Succession of Peter B. Viard.
    Syllabus.
    1. The Recorder of Mortgages, in case of serious doubt, bas the right to compel parties to resort to the courts in order to have it judicially determined whether or not a mortgage should be cancelled.

      2. In all judicial partitions by licitation, the mortgages, liens, and privileges of the parties to the partition shall, by order of court, be transferred to the proceeds.' ' ■
    3. The same rule holds when a partition is made by private sale. .
    4. The proceeds of the sale are to be deposited in the registry of the court and are to be reinvested under the court’s order.
    APPEAL from the Civil District Court, Parish of Orleans — Sommervilie, J.

      David Rosenberg, for Plaintiff in Rule, Appellant.

      Dinkelspeil & Hart, for Robert Legier, Recorder of Mortgages, Defendant in Rule, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Peter B. Viard died leaving an adopted child, who is a minor, and a widow in community, who qualified as tutrix of this minor, she being a party to the act of adoption. An inventory was taken, and, afterwards, a family meeting was held. The family meeting advised that it would be to the interest of the minor to sell the property at private sale, under Act 25 of 1878, to effect a partition. The recommendations of this family meeting were homologated. The property was sold at private sale for a price in excess of the appraisement fixed upon it by the family meeting.

A rule was taken against the Recorder of Mortgages to compel him to cancel the minor’s mortgage against the natural tutrix, growing out of the inscription in the mortgage office of the certificate of the clerk of court, so far as it related to the property sold, as above mentioned, and no further. The plaintiff in rule offers to deposit the entire proceeds of the sale in court, to remain until reinvested in real estate, upon the advice of a family meeting duly convened.

The Recorder of Mortgages sets forth, in substance, as his reasons for declining to cancel the mortgage: that when property is sold, in which the minor has an undivided share, to effect a partition, there is no law sanctioning the reference of the mortgage to the proceeds.

With reference to his authority to oppose the application of relator to have the mortgage erased, the Recorder avers that he w.ould, perhaps; hereafter, be held liable were he to make an unauthorized cancellation of the mortgage. We agree with him in this respect and recognize his right to test relator’s right to the cancellation. With reference to the cancellation of a minor’s mortgage, this court has decided that a tutor is without authority to have a mortgage on his property cancelled without previously substituting a special mortgage to secure his ward. Life Association vs. Hall, 33rd Ann. 49. Hone the less, in several cases afterward, different views from the foregoing were expressed. It is said that these decisions called the attention of the law maker to the question and that it resulted in the enactment of Statute 86 of 1896.

It remains that during a number of years, prior to the adoption of the law just noted, decisions were rendered, decreeing that in sales by lieitation for a partition, the mortgage was shifted from the property to the proceeds. In Morris vs. Lalaurie, 39th Ann. 47; the question was considered and the court held that in a partition by lieitation the mortgage passed to the proceeds. Diamond vs. Diamond, 27th Ann. 127, and Bayhi vs. Bayhi, 35th Ann. 531, are other cases in point cited only in support of the proposition that, without legislation on the subject, the court ruled that in sales by lieitation for a partition, the mortgage was transferred to the proceeds.

We will pause for a minute to say that, technically, there is a difference between a sale by lieitation and a private sale. We quote from Black’s Law Dictionary: “An act by which co-heirs, or other co-proprietors of a thing in common and undivided between them, put it up to bid between them, to be adjudged and to belong to the highest and last bidder upon condition that he pay each of his. co-proprietors a part of the price equal to the undivided part which each of said co-proprietors had in the.estate licited before the adjudication.”- We may a3 well state here that Statute 86 of 1896, in terms, provides for sale by lieitation, and that it contains no reference to sale by private act made for a partition.

From this, 'may it not properly be inferred that when private sales are made for a partition, under Act 25 of 1878, without special legislation, the minor’s mortgage attaches to the proceeds of the property sold? The difficulty, as relates to minors, grows out of the fact that the tutor’s .property, when'he owns property in indivisión with his ward, is burdened with the minor’s mortgage. While it is conceded that the minor’s property passes in a sale made, under Act 25 of 1878, it is contended that the minor’s mortgage remains on the tutor’s share. That view finds support in Lyman vs. Stroudebach, 47th Ann. 71.

We will not pursue the discussion further on this point than to say that the act of sale before us, although a private sale, was intended in évery respect to give title. It would scarcely be a title worth having if the property of the tutor, owner in common, remained subject to the minor’s mortgage. As the owner in common has the right to put an end to the indivisión in the ownership, and as the law gives him the right to accomplish this by private sale, if the property remained encumbered by a mortgage of one of the parties in favor of another of the parties to the sale for a partition, the situation would become quite anomalous. The property of the minor would pass free of mortgage, while that of his tutor would remain subject to his mortgage. The minor would receive his portion, and, at the same time, retain his mortgage on his tutor’s property sold for a partition.

We do not think that such is the inference to be drawn from the different articles of the Code, and of the statutes relating to partitions. The parties to a partition, both majors and minors, must, to some extent at least, be bound by their own acts.

We pass to another point in the ease. The tutrix offers to deposit the entire proceeds of the sale in the registry of the court, subject to -the future orders of the court. She can be held to the performance of that offer, and, thereby, beyond all question, secure the minoras right. This is sanctioned by authority of date not recent. 47 Ann. 890, cited infra, In Lecarpentier vs. Lecarpentier, 5 Ann. 497, a similar question was considered and decided. The difficulties were much greater in the last cited case than in the case at bar. The sale was not considered legal, and yet the court held that the plaintiff in rule, who was tutor of the minor, was at liberty in three ways to meet the objection to his receiving his share of the proceeds of the sale of the property: first, by giving the defendant satisfactory security to indemnify her against the mortgage; second, by causing his share to be invested in real estate, under the supervision of the court and the advice of a family meeting, and giving a special mortgage on the property, thus purchased under the provisions of the Act of 1831; or, finally, by agreeing with the defendant that she will retain the amount until the majority of the minors, on paying a stipulated rate of interest. Leaving to the plaintiff the choice of means, the judgment of the lower court was affirmed. The chief purpose was to protect the minor’s interest in' a lawful way, and then to sanction the sale.

In a decision of recent date, the question was before this court, and it was decided, in a case of sale of a minor’s property to effect a partition that, “considering that the proceeds will represent the property, the shares of the respective parties in interest are transferred thereto.” Koehl vs. Solari, 47 Ann. 890.

But to make it certain that the property shall pass - free of any encumbrance, we think it best that all the proceeds of sale shall be deposited in the registry of the court and there remain until the amount coming to the minors shall be actually reinvested upon the order of the court upon the recommendation of a family meeting, and the natural tutrix shall provide adequate security in place of the legal mortgage. As in the cited case, the court has the power to “deal with the proceeds of the sale as it has with the property.”

This suit was for the interest of the widow and minor, and they should pay the costs of both courts, and not the officer who prudently declined to accede to their demand without judicial sanction.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed.

It is further ordered, adjudged, and decreed that the entire proceeds of sale be deposited in the registry of the court, and there remain subject to the order of court, until the share of the minor and the tutrix be reinvested in real estate and the minor’s mortgage properly inscribed and made effective.

It is further ordered, adjudged, and decreed that after the said deposit shall have been made, the minor’s mortgage on the property shall ba cancelled.


text:
    No. 14,046.
    Charter Oak Stove and Range Company, Limited, et als., vs. Henry Rice & Son et als.
    Syllabus.

      Hold upon the ease, as presented, that goods ordered by the receiver of a mercantile establishment, but arriving after, the sale, in block, of said establishment, as a going concern; hut not paid for, and not included in the appraisement, pursuant to which the sale was made, were not included in such sale.
    APPEAL from the Civil District Court, Parish of Orleans — Sommer ville, J.

      Gustave Lemle, for A. Baldwin & Company, Limited, Plaintiff in Buie,1 Appellant.

      Dinhelspiel & Hart, for George Fuchs,’Beceiver, Defendant in Buie. Appellee.
   The opinion of the court was delivered by

Monroe, J.

The business of the defendant firm was being conducted by a receiver, who, upon December 24th, 1900, presented a petition to the District Court, alleging that the further continuance of said business was useless, and that it was advisable to sell it; and suggesting that he “be authorized to carry on the business as heretofore until the actual delivery to the purchaser.” And this petition was duly entered on the order book, there to remain for ten days, as required by Sec. 8 of Act No. 159 of 1898. No opposition appears to have been filed to the application thus made, but no further action was taken by the receiver until March 28, 1901, when he filed a petition reciting the action already taken, and alleging that the creditors were of opinion that the property of the defendants in his hands as receiver and which he describes and praying for an order to that effect; and further praying that that of all sales “ and collections from the date of this order, a separate account be “ kept for the benefit of the purchaser of the business, to be turned “ over to him by petitioner when final title is passed and delivery is “ made; and that, up to the date of sale, petitioner be directed to abstain “ from making any purchases for account of the business, except such as “ may be absolutely necessary and essential,” etc. And the order was made accordingly.

Upon tne following day, the appointment of appraisers was suggested, and they were appointed. Upon April 2nd, the property was advertised to be sold, April 15, as follows:

“All and singular, the prope: ty of the firm of'Henry Rice & Son, “ and of Henry Rice and of Philip R. Rice, individual members of said “film, now in the p «session and control.of George Fuchs, as receiver, “ including merchandise, stock in trade, open accounts, and bills re- “ ceivable and debts due said firm or the receiver; tools, fixtures, and all appurtenances, of whatever description, of the business of said “ firm and the receiver thereof, including the right of occupancy of the “premises .* * *, without reservation or exception, whatever, in “one lot, and as a going and continuous business. All sales of mer- “ chandise and all collections of open accounts or bills receivable or “ other debts due said firm or the receiver, made after March 28, 1901, “up to, and including, the date of the confirmation of the sale and “ delivery of possession, shall accrue to, and belong to, the purchaser.”
Upon the same day that this advertisement was published and approved by tbe court, the receiver presented a petition alleging “that “ previous to the order of sale herein rendered on March 28, 1901, peti- “ tioner had ordered considerable goods for the business of the defend- “ ants, but that some of said goods are. not yet shipped, and others not “ yet received, and petitioner believed that the orders for same can be “ cancelled, and the goods held back or recalled. That this course is “ for the interest of all the creditors and should be followed. Where“fore petitioner prays to be authorized to cancel such orders, hereto- “ fore given by him, concerning goods not yet received or shipped and “ that may be recalled by the vendors, etc.”

And the order was made, as prayed for. On April 9th, the appraisers made their appraisement and returned it into court, showing:

Merchandise and stock in trade.........................$42,200 00
Vehicles and live stock................................. 300 00
Tools, furniture and fixtures............................ 500 00
Open accounts and bills receivable....................... 20,500 00
Rights of occupancy................................... 300 00
Total ...........................................$63,800 00

And the appraisement was approved by the court.

Upon April 16th, the receiver filed a petition, to which was annexed the proces verbal of the auctioneer, alleging that the sale had taken place on the preceding day, as advertised; that A. Baldwin & Co., Limited, had purchased the entire property, sold, for $45,000.00, and praying that said sale be confirmed, and that he be authorized to deliver said property, on payment of the balance of the price, and to permit the purchaser, in the meanwhile, to assort and arrange the goods; and the application was entered upon the order book.

The proces verbal annexed to this petition describes the property sold, in the'language of the advertisement. Upon April 29th, the receiver filed a petition, alleging that more than ten days had elapsed since the filing of the petition for the confirmation of the sale and that no opposition had been filed, and praying that said sale be confirmed; and it was so ordered.

Thereafter, on May 22nd, A. Baldwin & Co., Limited, appeared, by rule, and, after reciting the various proceedings leading up to their purchase, and alleging the payment in full of the purchase price of the property, sold, they further alleged that the receiver, claiming that certain property was not included in said purchase, refused to deliver the same unless the movers paid therefor an amount, over and above their bid, and that movers had made said payment, amounting to $2925.05, under protest; and they prayed that the receiver be ordered to show cause why he should not refund said amount.

There was no written return to this rule, but there was a hearing, upon which evidence was taken, and the rule was dismissed. And the movers have appealed.

The facts appear to be, that the amount claimed represents the invoice price of certain goods which had been ordered by the receiver at some time prior to the filing of the petition for the sale, and bills of lading for which were in his possession when the sale was made, but which did not reach New Orleans or actually come into his possession until afterwards. Mr. A. Baldwin, Jr., who represented the purchaser, testifies that he had been informed, prior to the sale, that goods had-been ordered and were in transit; that, practically, all of the bills of lading had arrived; and that he counted upon the goods that were in transit as being included in the sale. On behalf of the receiver, it is shown that, in several instances, orders for goods had been countermanded where the goods had not been actually shipped, and that that course was not pursued with reference to the goods in question, because said goods were in transit at the time that the receiver undertook, under the authority of the court, to act in the premises, and could not be stopped. It is admitted that they were ordered before the order to sell was applied for, and were shipped before the sale took place. It does not appear to us, from' the testimony, that the purchasers were informed of the character or value of any goods that had been ordered, or that were in transit, and it is not claimed that, apart from what they may have deduced, as a legal conclusion from the proceedings in the case, they had any reason to believe that they were buying any other tangible property than such as was in the actual possession of the receiver at the moment of the sale, nor is it alleged, or shown, that the property in question was included in the appraisement, nor could it, properly, have been so included. Under these circumstances, it could not have entered seriously into the calculation upon which the purchasers predicated their bid. Moreover, they were aware that they were dealing with a matter in court, the proceedings in which were open to their inspection, and which, for the purposes of this question, are to be taken as a whole. And it is to be presumed that they knew that in the first petition filed by the receiver, after setting forth the necessity for selling the property, he alleged that he ought “to bo authorized to carry on the business, as heretofore, until the actual delivery to the purchaser,” and that this petition was the notice to all parties in interest which served as the basis for the subsequent orders. This being the case, the receiver retained his authority to conduct the business as he had theretofore conducted it, except in so far as that authority was specially modified or withdrawn; and, as he had theretofore conducted the business, he was certainly authorized to refuse to receive and sell goods which he had reason to know that he would be unable to pay for.

We are of the opinion that the judge a quo correctly decided the ease, and his judgment is affirmed.